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    References

    1. 1.

      For example,W v Egdell (1990) 1 All ER 835;Re C (A Minor) (Evidence: Confidential Information. (1991)) 2 FLR 478.

    References and Notes

    1. 3.

      W v Egdell [1990] 1 All ER 835.

    2. 4.

      See also,Royal Melbourne Hospital v Mathews, unreported, Supreme Court of Victoria, 9 December 1992,Australian Health and Medical Reporter (1991) para 27–770.42. The Assistant Director of Medical Services refused to give to police the medical records of a person who had attended the outpatients department and who was charged with knowingly infecting another person with HIV. It was held that a member of the health service is bound to hand over patient records to police who have a valid warrant for them, and would not be breaching patient confidentiality. For the position in the United States, seeTarasoff v Regents of University of California (1976) 131 Cal Rptr 14 (Cal SC).

    3. 5.

      For example, see s64 of theChildren and Young Persons Act 1989 (Vic) which sets out those who must report suspected cases of child abuse, including medical practitioners, nurses, psychologists, school teachers, social workers and welfare workers.

    4. 6.

      In Victoria, Tasmania and the Northern Territory a limited privilege is conferred on communications made to doctors. See s28(2)Evidence Act 1958 (Vic); s96(2) of theEvidence Act 1910 (Tas) and s 12(2) of theEvidence Act 1939 (NT).

    5. 7.

      See for example,Health Administration Act 1982 (NSW);Health Services Act 1988 (Vic);South Australian Health Commission Act 1976 (SA);Health Services (Conciliation and Review) Act 1987 (Tas). ThePrivacy Act 1988 (Cth) provides that all Commonwealth officers have an obligation to keep records confidential.

    6. 8.

      Publick, C. (NSW Privacy Commissioner) (1996). Keeping health private.Sydney Morning Herald, 11 January.

    7. 9.

      Slavutych v Baker (1975) 38 CRNS 206. See also Wigmore, J. (1961).Evidence Trials at Common Law, McNaughton, 2191.

    8. 10.

      Baker v Campbell (1983) 153 CLR 52 (High Court of Australia). The privilege has existed for over 400 years in English law:Berd v Lovelace (1577) 21 ER 33.

    9. 11.

      R v Hennessey (1978) 68 Cr App Rep 419 (Court of Appeal);Attorney-General v Mulholland (1963) 1 All ER 767 per Lord Denning MR.

    10. 12.

      Commonwealth of Australia v Northern Lands Council (1993) 112 ALR 409 (High Court of Australia).

    11. 13.

      In the Canadian cases, it is the alleged victim who has been resisting disclosure of the confidential information, although third parties (rape crisis centres and hospitals) in possession of the records have also appeared in court to resist the claim for disclosure. Recent rulings have emphasised that it is the individual to whom the information relates who has the legal right to claim the privilege of confidentiality. If that individual consents to the disclosure of the information the court will order it disclosed even if the record holder has concerns that doing so might undermine the feelings of privacy of other parties or clients:AM v Ryan (1994) BCJ 2313 (BCCA),R v Beharriell (1994) OJ 13 (Ont CA).

    12. 14.

      Campbell v Tameside Council (1982) QB 106.

    13. 15.

      Alister v R (1984) 58 ALJR 97. Australian courts have adopted a narrow view of the scope of public interest privilege, holding that while individuals are entitled to take objection to the disclosure of material supplied in confidence on the grounds of public interest immunity, it is only in certain circumstances (such as the protection of informers) that the immunity will be held to be attracted.Aboriginal Sacred Sites Protection Authority v Maurice (1986) 65 ALR 247.

    14. 16.

      See Lord Diplock inD v NSPCC (1978) 171 at 218 for authority for the presumption that the latter will prevail unless ‘a more important public interest is served by protecting the information or the identity of the informant from disclosure in a court of law’.

    15. 17.

      Science Research Council v Nasse (1980) AC 1028. The English courts are reluctant to recognise that social work records have an absolute immunity from disclosure:Re M (a Minor) (Disclosure of Material) (1990) FCR 485 (Court of Appeal). InRe Manda (1993) 1 All ER 733, the Court of Appeal upheld an order for the disclosure of wardship documents as, in the circumstances, the public interest outweighed any detriment to child proceedings generally.

    16. 18.

      See Bronitt, S. (1995). Criminal liability issues associated with a ‘heroin trial’, Working Paper No. 13,Feasibility Research into the Controlled Availability of Opioids, National Centre for Epidemiology and Population Health, ANU, Canberra.

    17. 19.

      This may be contrasted with Information Privacy Principle 11, s14 of thePrivacy Act 1988 (Cth).

    18. 20.

      However, the Act itself does not prevent law enforcement agencies from searching and seizing confidential information gained during an epidemiological study under a search warrant, or from producing such information to a court for inspection to determine whether or not it is covered by the privilege expressed in s8(1). See also sections 8 and 11(2) of theEpidemiological Studies (Confidentiality) Act (ACT) 1992.

    19. 21.

      A mistaken belief in consent (however unreasonable) negates the means for rape and sexual assault:Morgan v DPP (1976) AC 182.

    20. 22.

      McCafferty, B. (1990–91). The existing confidentiality privileges as applied to rape victims. SJL and Health 101 at 105.

    21. 23.

      Dietrich v R (1992) 177 CLR 292. See also Art 6, European Convention on Human Rights.

    22. 25.

      Osolin v R (1993) 86 CC (3d) 481;O'Connor v R andA (LL) v B(A), unreported, Supreme Court of Canada, 14 December 1995.

    23. 26.

      Osolin at 491 per L'Heureux-Dubé, J.

    24. 27.

      Osolin at 496 per L'Heureux-Dubé, J.

    25. 28.

      Osolin at 495–496 per L'Heureux-Dubé, J.

    26. 29.

      Osolin at 497–498 per L'Heureux-Dubé, J. The UK rape shield is contained in s2 of theSexual Offenses (Amendment) Act 1976. Similar provisions exist in Canada and all Australian jurisdictions.

    27. 30.

      O'Connor, supra n26, at 18 per Lamer C.J. and Sopinka, J.

    28. 32.

      Supra n26.

    References

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      R v Cambridge Health Authority, Ex Parte B (1995).Health Care Analysis 3(3), 240–243.

    2. 2.

      White, R. (1995). The financial welfare of the child.New Law Journal 1995, 1648.

    References

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      General Medical Council (1995).Duties Of A Doctor. General Medical Council, London.

    2. 2.

      General Medical Council (1992).Proposals For New Performance Procedures. General Medical Council, London.

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      Stacey, M. (1992). Should we trust doctors?The Guardian, 9 December.

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    Health care law. Health Care Anal 4, 157–167 (1996). https://doi.org/10.1007/BF02251221

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    Keywords

    • Public Health
    • Health Care