Q) Write a Short note on Privileged Communication?
Ans. 1) Definition – (a) It is a statement made bonafide upon any subject matter by a doctor to the concerned authority, due to his duty to protect
the interests of the community or of the State. (b) Divulgence of information about patient’s illness to concerned authorities by the doctor in the
interest of community or state under moral or social or legal obligation is known as privileged communication.
2) Salient features –
(a) To be privileged, the communication must be made to a person having interest in it, or in reference of which he has a duty.
(b) If made to more than one person, or to a person who has not a direct interest in it, the plea of privilege fails.
(c) The doctor should first persuade the patient to obtain his consent before notifying the proper authority.
(d) If the doctor discloses professional secrets for the purpose of protecting the interest of the community, (under a moral and social obligation), he
will not be liable to damages.
3) Situations where privileged communication holds true are –
(i) In society’s interest – (a) About venereal disease of patient to swimming pool manager, when patient tries to enter swimming pool against the
advice of not entering swimming pool which can cause infection to others. (b) About color blindness of patient to road transport authority, when
patient is driving motor-vehicle against the doctor’s advice of not driving as it can cause accident.
(ii) In patient’s interest – Doctor can inform the parent’s of psychiatric patient to keep watch over him as he has suicidal tendencies. This is
privileged communication [ patient cannot sue the doctor]
(iii) In a third party’s interest – Doctor can inform a third party person about the illness like HIV or Syphilis (until cured) of patient when they are
about to marry. Patient cannot succeed against doctor for breach of confidentiality. Doctor can inform the spouse (third party) about illness like HIV
or Syphilis of the patient.
(iv) In Doctor’s own interest – Doctor informing court about the illness of patient as evidence is privileged communication, when patient brings civil
or criminal suit against doctor.
(v) Negligence Suits: When a physician is employed by the opposite party to examine a patient who has filed a suit for negligence, the information
thus acquired is not privileged (no physician-patient relationship), and the doctor may testify to such information.
(vi) In Court of law - (a) In a Court of law, a doctor cannot claim privilege concerning the facts about the illness of his patient, if it is relevant to the
inquiry before the Court.
(b) The doctor should appeal to the Court if he is asked to reveal any professional secret. If the Court does not accept this plea, he may request the
Court that he may be allowed to give the answer in writing so that the public may not know.
(c) If this is denied by the Court, the doctor has to answer the questions about the patient’s confidential matters to avoid risk of penalties for
contempt of Court.
(d) In all cases, the doctor should appeal to the Judge before disclosing a professional secret. The witness should not voluntarily disclose
information either in Court or out of it, but for the actual evidence demanded by the Court, he is protected from civil action against breach of
confidence.
(e) Under S. 126, and 129, I.E.A., a lawyer can claim privilege in a Court of law with regard to any communication made to him by his client.
(vii) Notifiable disease – if during his practice, a doctor comes across a patient who is suffering from a Notifiable disease, it is his duty to inform the
concerned authorities. A medical practitioner has a statutory duty to notify births, deaths, infectious diseases, etc., to the Public Health authorities.
(viii) Suspected Crime: (a) Every person, aware of the commission of, or of the intention of any other person to commit any offence shall
immediately give information to the nearest Magistrate or police officer of such commission or intention (S.39, Cr.P.C.).
(b) If the doctor learns of a serious crime, such as murder, assault, rape, etc. by treating the victim or assailant, he is bound to give information to
the police.
(c) Thus, if a doctor treats a person suffering from gunshot or stab wounds due to criminal assault, he must inform the police as it is a medicolegal
case.
(ix) In the interest of Employers – If the person being examined is found to be suffering from a disease which can put the life of the people he is
serving in danger, the doctor must try to persuade the person to not join his duty. If he does not agree, then the employer has to be informed.
(a) Waiter or cook- condition of patient found to be suffering from an infectious disease must be reported to employer.
(b) Driver – Information about driver’s illness like epilepsy, alcoholism, drug addiction, high blood pressure, color blindness, must be reported to
state transport authorities.
(c) Teacher – Information about infectious disease (eg tuberculosis) condition of teacher, must be reported to the employer.
(x) Medical for Insurance – if a doctor examines a person for his insurance policy, the person knows that any adverse medical findings would be
communicated to the insurance company. He has thus given his tacit consent for communication of medical findings to the insurance company. In
such a situation, the doctor can give all the findings to the insurance company.
(xi) Waiver of professional secrecy – When a patient gives his express permission to the doctor to disclose professional secrets.
