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COMMUNICATION, INFORMATION, THREATS, AND COOPERATIVE RESPONSES
PROFESSOR PETER C DOHERTY*
A Perspective in Overview
By preserving the confidences of their clients or patients, do lawyers and
doctors serve a just society? There are very good reasons for requiring them to
preserve confidences, the most obvious one being that clients and patients may
not otherwise disclose information that will enable lawyers and doctors to best
serve their interests. But this reason focuses on the interests of clients and patients,
not on the interests of society. There may be occasions when there is a duty to society
that overrides the duty to individual clients and patients. For both lawyers and doctors,
there are exceptions to the duty of confidentiality. For lawyers, these exceptions are limited.
For doctors, they are substantial.
This presentation will focus on exceptions to the duty of confidentiality in South
Australia and Victoria. The two jurisdictions provide interesting comparisons,
particularly in respect of codes of conduct that apply to lawyers and statutory
provisions that apply to doctors. Both codes and statutory provisions provide greater
scope for breaching the duty of confidentiality for practitioners in South Australia than
for practitioners in Victoria.
The exceptions derive from three sources:
• Codes of Conduct;
• Statute;
• Common Law.
Codes of Conduct - Lawyers
In each Australian jurisdiction lawyers are subject to rules of professional conduct
and practice. In Australia, the rules are all based on the Model Rules of the Law
Council of Australia 2002.
Previous rules emphasised duties to the client as opposed to duties to the public.
Thus rule 9.1 of the Law Society of South Australia Professional Conduct Rules that
were in force before 2003 provided that:
Practitioners shall use all reasonable available legal means that are
consistent with the agreement to which they are retained to advance
clients’ interests, as the clients’ perceive them.
Rule 1.1 of the Law Society of South Australia Rules of Professional Conduct &
Practice, effective 1 March 2003, provides:
A practitioner must act honestly and fairly, and with competence and
diligence, in the service of a client.
Rule 1.1 of the Law Institute of Victoria Professional Conduct and Practice Rules,
effective 30 June 2005, is expressed in similar terms.
Practitioners must no longer set aside their own moral judgment and advance their
clients’ interests, as the clients’ perceive them. They must now act “honestly and
fairly”. These words suggest that the focus is not just on the client’s demands but it is
also on service of the client in the context of societal interests.
This change in emphasis can also be seen in the rules on confidentiality. Rule 9.2 of the former South Australian rules provided:
Subject to Rule 9.13i and any statutory provision to the contrary and
except for such communications as may be incidental to the normal
conduct of the matter or unless otherwise instructed by the client, a
practitioner shall not (whether a retainer be terminated or not) disclose
any information obtained in the course of handling any matter.
Rule 3 of the new rules provides much greater scope for disclosing information,
particularly in sub-rules 3.1.3 and 3.1.6:
A practitioner must never disclose to any person who is not a partner
director or employee of the practitioner’s firm any information, which is
confidential to a client and acquired by the practitioner or by the
practitioner’s firm during the client’s engagement, unless:
3.1.1 The client authorises disclosure;
3.1.2 The practitioner is permitted or compelled by law to disclose;
3.1.3 The practitioner discloses information in circumstances in
Which the law would probably compel its disclosure, despite a
client’s claim of legal professional privilege, and for the sole
purpose of avoiding the probable commission or concealment of
a serious criminal offence;
3.1.4 The information has lost its confidentiality;
or 3.1.5 The practitioner obtains the information from another person who is
not bound by the confidentiality owed by the practitioner to the client and who does not give the information confidentially to the
practitioner.
3.1.6 In the practitioner’s opinion the disclosure of the information is
required to prevent imminent serious physical harm to the client
or to a third party.
Sub-rule 3.1.6 recognises interests of persons other than the client that may override
the client’s perceived self-interest. The sub-rule is expressed in terms of the interests
of individuals - “the client or … a third party”- and not those of the general public.
Rule 3 of the Victorian Rules is in identical terms with the important exception that
3.1.6 is omitted. 3.1.6 is also not in the Law Council of Australia Model Rules.
The Rules of Professional Conduct & Practices in all States contain extensive
provisions on the duty of frankness in court.ii iii What should a practitioner do when
she or he discovers that a client has lied to the court or in other ways provided false
evidence? In short, the practitioner must encourage the client to authorise the
practitioner to inform the court of the lie or falsification and, if the client says no, must
then refuse to take further part in the case. Also, if the client says no, the practitioner
“must not otherwise inform the court of the lie or falsification.”iv Here, the duty to the
court and probably also the duty to society are clearly made subject to a higher duty
to the client.
Codes of Conduct – Doctors
From the 5th Century BC, medical codes of ethics have emphasised the duty of
confidentiality. The Hippocratic Oath states:
Into whatever house I enter, I will go into them for the benefit of the
sick … whatever, in connection with my professional practice, or not in
connection with it, I see of hear in the life of men, which ought not be
spoken of abroad, I will not divulge as reckoning that all such be kept
secret.
Early codes recognised that information could be divulged with the permission of the
patient or if required by law.v The Australian Medical Association Code of Ethics 1995
also provided that information could be divulged “where the health of others is at
risk.” In 2004, the A.M.A. introduced a new code that goes much further. It provides
in paragraph 1.1l.
Maintain your patient’s confidentiality Exceptions to this must be taken
very seriously. They may include where there is a serious risk to the
patient or another person, where required by law, where part of
approved research, or where there are overwhelming societal interests.
The exception of “overwhelming societal interests” may recognise a perception that
whereas lawyers serve their clients, doctors serve both their patients and the
community. It accords with both case law and legislation where doctors have been
permitted or required to disclose information for the good of the public.
Professional Accountability
Lawyers and doctors who breach their codes of conduct may be subject to
disciplinary proceedings. The codes do not have force of law. vi However, they
represent the views of the professional bodies on what is proper professional
behaviour.vii
In South Australia and Victoria, the standards that apply to lawyers are now
expressed in statutory definitions. The South Australian definition is as follows:viii
“Unprofessional conduct” in relation to a legal practitioner means –
(a) an offence of dishonest or infamousix nature committed by the legal
practitioner in respect of which punishment by imprisonment is
prescribed or authorised by law; or
(b) any conduct in the course of, or in connection with practice by the
legal practitioner that involves substantial or recurrent failure to meet
the standard of conduct observed by competent legal practitioners
of good repute;
“unsatisfactory conduct” in relation to a legal practitioner, means
conduct in the course of, or in connection with, practice by the legal
practitioner that is less serious than unprofessional conduct but involves
a failure to meet the standards of conduct observed by competent legal
practitioners of good repute.
Sections 4.4.2 and 4.4.3 of the Victorian Legal Profession Act 2004 also has Bolam
type definitions of “unsatisfactory professional conduct” and “professional
misconduct”.
For medical practitioners, until recently, the standards were not expressed in
statutory definitions. There are many judicial statements of what is “unprofessional
conduct”, “professional misconduct’ or “infamous conduct in a professional respect”.
They are all in the nature of Bolam type tests. For example, in Ex parte Meehan; Re
Medical Practitioners Actx Sugerman J. said:
… the only generalisation as to the meaning … of ‘infamous conduct in a
professional respect’ which can be attempted as capable of application
to the varying situations which may arise, is that it refers to conduct
which being sufficiently related to the pursuit of the profession is such as
would reasonably incur the strong reprobation of the professional
brethren of good repute and competence.
In both South Australia and Victoria, the standards are expressed in statutory
definitions. In South Australia, section 3 (1) of the Medical Practice Act 2004 defines
unprofessional conduct to include:
(a) improper or unethical conduct in relation to professional practice; and
(b) incompetence or negligence in relation to the provision of medical
treatment; and
(c) a contravention of or failure to comply with –
(i) a provision of this Act; or
(ii) a code of conduct or professional standard prepared or
endorsed by the Board under this Act; and
(d) conduct that constitutes an offence punishable by imprisonment for 1
year or more under some other Act or law.
It is submitted that, as this is an inclusive definition, it is in addition to the Bolam type
test of unprofessional conduct that has been favoured by the Courts.
In Victoria, the Medical Practice Act 1994 section 3 defines unprofessional conduct
to mean all or any of the following:
(a) professional conduct which is of a lesser standard than that which the
public might reasonably expect of a registered medical practitioner; or
(b) professional conduct which is of a lesser standard than that which might
reasonably be expected of a medical practitioner by her or his peers; or
(c) professional misconduct; or
(d) infamous conduct in a professional respect; or
(e) providing a person with health services of a kind that is excessive,
unnecessary or not reasonably required for that person’s well-being; or
(f) influencing or attempting to influence the conduct of a medical practice
in such a way that patient care may be compromised; or
(g) the failure to act as a medical practitioner when required under an Act or
regulation to do so; or
(h) a finding of guilt of -
(i) an indictable offence in Victoria, or an equivalent offence
in another jurisdiction; or
(ii) an offence where the practitioner’s ability to continue to
practice is likely to be affected because of the finding of
guilt or where it is not in the public interest to allow the
practitioner to continue to practice because of the finding
of guilt; or
(iii) an offence under this Act or the regulations; or
(iv) an offence as a medical practitioner under any other Act
or regulation; or
(i) the contravention of, or failure to comply with a condition, limitation or
restriction on the registration of the medical practitioner imposed by or
under this Act; or
(j) the breach of an agreement made under section 27 (5), 32 or 38D
between a medical practitioner and the Board; or unsatisfactory
professional performance.xi
This definition is more comprehensive than the South Australian definition. It focuses
both on attitudes of patientsxii and of peers of medical practitioners.xiii It also adopts
terms that are not defined in legislation but have been defined by the courts, in
particular, infamous conduct in a professional respect which is defined above in Ex
parte Meehan: Re Medical Practitioners Act.xiv
Statute – Lawyers
There is no legislation that compels or permits lawyers, in their capacity as lawyers,
to disclose information that might be considered confidential in respect of their
clients.xv However, there is legislation that permits any person to disclose information
in the public interest or information about the abuse or neglect of children.
South Australia, Victoria and Queensland have Whistleblower Protection Acts. xvi
Generally, these Acts protect persons from civil or criminal liability if they disclose
“public interest” information to appropriate authorities. In Queensland, the information
that may be disclosed is limited. It relates to “a substantial and specific danger to the
health or safety of a person with a ‘disability”, a substantial and specific danger to the
environment” and “a reprisal”xvii.
In both South Australia and Victoria public interest information is broadly defined. In
South Australia it includes misuse of public money, mismanagement of public
resources, illegal activity and conduct that causes a substantial risk to the public
health or safety, or to the environment.xviii
In each jurisdiction, a person who on reasonable grounds makes an appropriate
disclosure of public interest information is protected from civil and criminal liability. In
Victoria and Queensland a person who makes a public disclosure is also protected
from liability arising from “administrative process” In Victoria, but not in Queensland,
this is stated to include “disciplinary action”.xix In South Australia, protection is limited
to civil and criminal liability.xx
Thus, a lawyer who, for example, makes a public interest disclosure of her or his
client’s criminal activity,xxi will be protected from civil and criminal liability in South
Australia and Victoria but not in Queensland where criminal activity is not listed as
public interest information. The lawyer will also be protected from disciplinary
proceedings in Victoria but not in South Australia. In South Australia and other
Australian jurisdictions, a finding of professional misconduct against a lawyer will
most likely depend on whether disclosure of the information is considered reasonably
to “violate or to fall short of, to a substantial degree, the standard of professional
conduct observed or approved by members of the profession of good repute and
competency.”xxii
Most Australian jurisdictions have children’s protection legislation that provides that
certain people, including medical practitioners must notify appropriate authorities if
they have reasonable grounds to believe that a child has been or is being abused or
neglected. The South Australia Children’s Protection Act 1993 and the Victorian
Children and Young Persons Act 1989 have similar provisions. Lawyers are not listed
as mandatory notifiers. However, the legislation in both States also provides that
anyone else who, in good faith, notifies the appropriate authority of a suspicion of
child abuse or neglect cannot, by virtue of doing so incur civil or criminal liability or
“be held to have breached any code of professional etiquette or ethics, or to have
departed from any accepted form of professional conduct”.xxiii
Family lawyers, in particular, may become aware of information that, under children’s
protection legislation, they are entitled to disclose to appropriate authorities. The
protection given to lawyers under this legislation is much stronger than that under
most of the Whistleblowers Protection Acts. However, the legislation does not require
lawyers to notify the authorities.
The only guidance as to whether lawyers could ever be guilty of professional
misconduct for not notifying the authorities when they are aware of child abuse or
neglect are the criteria for “unprofessional conduct” xxiv applied by disciplinary
tribunals and the courts, in particular, the Bolam type test. What would be the view of
members of the profession of good repute and competency?
In a survey of nearly 700 Victorian lawyers conducted by Associate Professor Adrian
Evans of Monash University’s Faculty of Law in 2002, the lawyers were asked if they
would breach client confidentiality in a Family Court case by reporting suspected
child abuse.xxv A small majority said they would put the child’s safety before their duty
to keep their client’s confidences. This suggests that a sizable number of lawyers of
good repute and competency – enough to satisfy any application of a Bolam type
test – would not report suspected child abuse.
Statute – doctors
There are many statutory provisions under which doctors are required to disclose
information to appropriate authorities. In South Australia, doctors are mandatory
notifiers under section 11 of the Children’s Protection Act 1993. In Victoria, they are
mandatory notifiers under section 64 of the Children and Young Persons Act 1969.
In South Australia, other statutory provisions under which doctors must disclose
information about patients or others to whom they might have a duty of confidentiality
include:
• Section 49 or the Medical Practice Act 2004 provides that a medical
practitioner (“health professional”) must notify the Medical Board if she or he
is of the opinion that a patient who is a medical practitioner or medical student
is medically unfit to provide medical treatment;
• Section 42 of the Pharmacists Act 1991, section 39 of the Chiropractors Act
1991, section 14b of the Occupational Therapists Act 1974, section 40 of the
Physiotherapists Act 1991 and section 43 of the Nurse Act 1999 are
provisions in respect of pharmacists chiropractors, occupational therapists,
physiotherapist and that are similar to section 49 of the Medical Practice Act
2004.
• Section 54 of the Dental Practitioners Act 2001 provides that a medical
practitioner must notify the Dental Board where she or he is treating a dentist
or dental student and believes that the patient may be medically unfit to
provide dental treatment or the patient has a prescribed communicable
infection;
• Section 30 of the Public and Environmental Health Act 1987 provides that a
medical practitioner who suspects that a person is suffering from or who has
died from a notifiable disease must notify the Health Department and furnish
such further information as may be required.
• Section 148 of the Motor Vehicles Act 1959 provides that a medical
practitioner (“health professional”) must notify the Registrar of Motor Vehicles
if she or he has reasonable cause to believe that a patient is unfit to drive a
motor vehicle;
• Section 20A of the Firearms Act 1977 provides that a medical practitioner
must notify the Registrar of Firearms if she or he believes that a patients who
is applying for or intends to apply for a firearms licence or possesses or
intends to possess a firearm is unsafe to possess a firearm;
• Section 47 I of the Road Traffic Act 1961 provides that a medical practitioner
must take a blood sample from any person who attends a hospital to receive
treatment within eight hours of a motor vehicle accident
• Section 74 of the Harbours and Navigation Act 1993 provides that a medical
practitioner must take a blood sample from any person who attends a hospital
to receive treatment within eight hours of an accident involving a vessel;
• Section 14 of the Boxing and Martial Arts Act 2000 provides that a medical
practitioner who examines a contestant in a professional or public boxing or
martial arts event and finds that the contestant is unfit to participate must
declare that fact and notify the contestant, the promoter of the event and the
Minister of that declaration and submit a written report to the Minister.
Victoria and other States have similar legislation xxvi although there are some
differences.
Doctors in Victoria are not under a legislative duty to inform authorities that patients
are unfit to drive motor vehicles. Section 27 of the Road Safety Act 1986 and
regulation 226 of the Road Safety (Drivers) Regulations 1999 only requires doctors to
carry out tests at the request of the Corporation. However, section 27 (4) of the Road
Safety Act 1986 provides that “[n]o action may be taken against a person who, in
good faith, reports to the Corporation any information which discloses or suggests
that a person is unfit to drive or that it may be dangerous to allow that person to hold
or to be granted a driver licence variation or a permit.” Thus doctors, and others, are
entitled to inform the Corporation that their patients are unfit to drive.
Also, doctors in Victoria are not under a legislative duty to inform authorities that
patients are unfit to possess, carry or use a firearm. However, under section 183 (1)
of the Firearms Act 1996, they are protected from civil or criminal liability if, in good
faith, they so advise the Commission.
Doctors are mandatory notifiers under all Children’s Protection Acts, so provisions
that entitle non-mandatory notifiers to notify of child abuse or neglect, do not apply to
them.
In South Australia and Victoria, the Whistleblowers Protection Acts apply to doctors
in the same way that they apply to lawyers.
Both States have legislation that permits doctors and other relevant persons in
certain circumstances to divulge information that might be considered to be
confidential. Of particular importance are the Acts in respect of health services,
mental health and evidence.xxvii
Duty of Disclosure and Civil Liability of Those Who Disclose
In Sullivan v Moody; Thompson v Connonxxviii the appellants, both fathers, had been
suspected by the respondents - medical practitioners and social workers - of sexually
abusing their children. The respondents notified the Department of Community
Welfare of their suspicions. In one case, criminal charges were laid against the father
but then dropped. In the other case, no criminal charges were laid against the father.
The appellants sued the respondents in negligence claiming that they had suffered
shock, distress, psychiatric injury and consequential personal and financial loss as a
result of the respondents’ investigation and reporting of their suspicions of child
abuse.
The legislation pursuant to which the respondents notified the Department was in
similar terms to the Children’s Protection Act 1993 (SA).xxix This included a provision
that protected notifiers from civil liability: “[w]here a person acts in good faith and in
compliance with the provisions of this section, he incurs no civil liability in respect of
that action.”xxx The Supreme Court found for the respondents and the High Court
dismissed the appeals. The High Court held that the duty of care claimed by the
appellants did not exist. Their Honours concluded:xxxi
The statutory scheme that formed the background to the activities of the
present respondents was, relevantly, a scheme for the protection of
children. It required the respondents to treat the interests of the children
as paramount. Their professional or statutory responsibilities involved
investigating and reporting upon, allegations that the children had
suffered, and were under threat of, serious harm. It would be
inconsistent with the proper and effective discharge of those
responsibilities that they should be subjected to a legal duty, breach of
which would sound in damages, to take care to protect persons who
were suspected of being the sources of that harm. The duty for which
the appellants contend cannot be reconciled satisfactorily, either with the
nature of the functions being exercised by the respondents, or with their
statutory obligation to treat the interests of the children as paramount.
As to the former, the functions of the examination, and reporting, require,
for their effective discharge, an investigation into the facts without
apprehension as to possible adverse consequences for people in the
position of the appellants or legal liability to such persons. As to the
latter, the interests of the children, and those suspected of causing their
harm, are diverse and irreconcilable. That they are irreconcilable is
evident when regard is had to the case in which examination of a child
alleged to be a victim of abuse does not allow the examiner to form a
definite opinion about whether the child has been abused, only a
suspicion that it may have happened. He interests of the child, in such a
case, would favour reporting that the suspicion of abuse has not been
dispelled; the interests of the person suspected of the abuse would be to
the opposite effect.
The emphasis here is on the paramount interest of children and on protection of
persons performing statutory duties. The High Court declined to recognise a duty that
contradicted that of statutory notifiers to protect the paramount interest of children.
The case reinforces the public policy of protecting notifiers, not only under children’s
protection legislation, but also, it is submitted, under any other legislation where
persons are entitled or obliged to notify authorities in the interests of society.
Statute – Privacy Act 1988 (Commonwealth)xxxii
Principles 10 and 11 of the Information Privacy Principles in the Privacy Act 1988
(Commonwealth) prohibit the use of personal information (principle 10) and the
disclosure of personal information (principle 11) and they list various exceptions to
these prohibitions. Two of these exceptions should be noted. The first exception is in
principle 10 1 (b) and principle 11 1 (c):
The record-keeper believes on reasonable grounds that the disclosure is
necessary to prevent or lessen a serious and imminent threat to the life
or health of the individual concerned or of another person
The second exception is in principle 10 1 (d) and 11 1 (e):
The disclosure is reasonably necessary for the enforcement of the
criminal law or of a law imposing a pecuniary penalty, or for the
protection of the public revenue.
These exceptions permit but do not require the record holder to use or disclose
information. The first exception is expressed in very narrow terms. Disclosure must
be necessary to prevent or lessen a serious and (not or) imminent threat to the life or
health of a particular person. The second exception is imprecise. If one knows that a
crime has been committed, is it reasonably necessary for the enforcement of criminal
law to disclose the crime? Is reporting a person for tax evasion reasonably necessary
for the protection of public revenue?
The exceptions in principles 10 and 11 enable a person to avoid penalty under the
Privacy Act. They do not relate generally to issues of contract, tort and professional
accountability in lawyer/client and doctor/patient relationships.
Common law
Lawyers and doctors may be accountable for breaches of confidence in contract, tort,
and professional misconduct proceedings and possibly in equity. Arguments of
entitlement or obligation to breach confidentiality have been raised in many cases.
Most do not concern lawyers. However, there are many that concern doctors. The
circumstances in which it has been said that doctors may be entitled or obliged to
breach confidentiality are usually expressed in terms of serious and immediate
danger to the life or safety of an identifiable individual.xxxiii xxxiv xxxv
It is not the purpose of this presentation to compare the different statements of
entitlement or obligation to breach confidentiality in various cases. This has been
done elsewhere. xxxvi One case however stands out because it illustrates, by
implication, the different standards that apply to doctors and lawyers. The case is W
v Egdell.xxxvii
Doctor Egdell, a consulting psychiatrist, was asked by the solicitors for W to examine
W and write a report on him to be used in an application to a tribunal to review a
decision to detain him in a secure hospital for an unlimited period. W had killed five
people and been diagnosed as suffering from paranoid schizophrenia. A psychiatrist
examined him and reported that his condition was well controlled by medication and
that it would be safe to transfer him to a regional secure unit. If this had happened,
the regional secure unit “would have been “a staging post on W’s journey back into
the community.”xxxviii
Doctor Egdell examined W and concluded that W was still dangerous and that he
should continue to be detained in the secure hospital. The solicitor immediately
withdrew the application to have him transferred to the less secure institution. Doctor
Egdell became concerned that another application would be made to have W
transferred and that another psychiatrist would be asked to write a report in support
of the application and that Egdell’s report would not be seen by the tribunal. To
ensure that any tribunal that reviewed W’s case would see the report, Egdell sent
copies of it to the hospital where W was detained, to the Home Secretary and to the
Department of Health and Social Security. W sought an injunction to suppress
communication of the contents of the report, delivery up of all copies and for an
award of damages for breach of confidentiality.
The Court of Appeal upheld the court’s decision to dismiss W’s application. Bingham
L.J. said:xxxix
There is one consideration which in my judgment, as in that of the judge,
weighs the balance of public interest decisively in favour of disclosure. It
may be shortly put. Where a man has committed multiple killings under
the disability of serious mental illness, decisions which may lead directly
or indirectly to his release from hospital should not be made unless a
responsible authority is properly able to make an informed judgment that
the risk of repetition is as small as to be unacceptable. A consultant
psychiatrist who became aware, even in the course of a confidential
relationship, of information which leads him in the exercise of what the
court considers a sound professional judgment, to fear that such
decisions may be made on the basis of inadequate information and with
a real risk of consequent danger to the public is entitled to take such
steps as are reasonable in all the circumstances to communicate the
grounds of his concern to the responsible authorities. I have no doubt
that the judge’s decision in favour of Dr Egdell was right on the facts of
this case.
Two points should be noted about the decision. First, the facts did not disclose a
serious or imminent danger to an identifiable person’s life. However, clearly, the
prospect of W’s early release into the community was disturbing. Secondly, the court
did not hold that Edgell was obliged to disclose the information. It held that he was
entitled to do so.
Conclusions
There are many circumstances in which doctors may or must disclose information
about individuals who might have expected the information to be protected by a duty
of confidentiality. In some circumstances, where there is a statutory obligation,
doctors who fail to disclose information may be subject to a penalty. There may even
be circumstance where a doctor who is not under a statutory duty to disclose
information would be guilty of professional misconduct for not disclosing the
information. What would have been the position of Dr Egdell if he had allowed his
report to be suppressed with the consequence that W was later discharged from
hospital and killed another five people? What would be the view of professional
colleagues of good repute and competence?
The overwhelming duty of lawyers to their clients not to disclose information may
have diminished slightly.xl However, lawyers still seem to regard it as their duty to
advance clients’ interests as the clients perceive them. This is well illustrated by the
facts of W v Egdell. The lawyers for W were aware of the import of Edgdell’s report.
Yet they were prepared to withdraw the application to have W transferred to a less
secure institution. If this had happened, another psychiatrist may then have
examined a better-briefed W and may have found him to be safely medicated. W
may then have been transferred to a less secure institution and then been released
into the community and then killed another five people. Would the lawyers’ role in this
scenario have been subject to review? If it had, would their conduct have been held
to be short of, to a substantial degree, the standard of professional conduct observed
by competent legal practitioners of good repute? In W v Egdell, Dr Egdell’s conduct
came under intense scrutiny. No mention was made of the conduct of W’s lawyers.
Where doctors or lawyers are entitled or required to breach confidentiality the
interests of society are deemed to override the interests of individuals. Egdell’s case
puts this in terms of competing public interests: (1) the public interest in maintaining
professional duties of confidence and (2) the public interest in disclosure.xli The case
does not give clear guidelines as to when a professional person is entitled or obliged
to disclose information. No case does.
The statutory provisions referred to deal with more obvious situations in which the
public interest of disclosure overrides public and private interests in maintaining
professional duties of confidence. In both South Australia and Victoria, there are
many circumstances where doctors are required or permitted to breach their duty of
confidentiality to their patients. They do so for the same reason that they are entitled
to breach confidentiality under their code of ethics: because there are overwhelming
societal interests or, in other words, in the service of a just society. Should lawyers, in
the service of a just society, also be required or permitted to breach their duty of
confidentiality to their clients?
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