Legal privilege

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Legal privilege is jurisdiction dependent but an essential right that all healthcare professionals should understand as it applies in the jurisdiction(s) they practice in. In common law based systems a client grants themselves legal privilege for documents and other potential evidence submitted to a lawyer for advice. Such privilege means that the information disclosed to the lawyer is not able to be disclosed in court. In Napoleonic code countries the concept is handled by "professional secrecy" which does not just apply to lawyer - client relationships. Various jurisdictions have quite different rules and mechanisms of disclosure. A lawyer in most jurisdictions needs to be involved (they can supervise the advice given). Further complexities appear to arise in non common law based systems and in commercial law interactions. A worldwide overview would suggest that legal privilege as applied to material relevant to medical negligence could be rocky in some jurisdictions[1]

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A statement would definitely become privileged under English law if submitted to a lawyer for legal advice. For example if a statement was submitted to a medical indemnity provider for advice and it was sighted by an inhouse lawyer in the process of providing advice, a statement would then become privileged and retain that privilege unless released by the client. An important point here is that a doctor could by voluntarily disclosing the statement to another party undo the privilege that the document had previously. The other point is that preparatory material of say the doctor which is not communicated to the lawyer may not be privileged. However in practice as a general rule, for legal advice privilege to apply under English law, it will exist if there is a communication between a lawyer and a client, or a document which reflects such a communication.

[2]
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In Scotland it has been defined that legal privilege does not extend to documents which are already in existence merely because they are sent to a solicitor. The lawyer has to put on "legal spectacles when reading, considering and commenting on the drafts". A document which is not addressed and delivered to a lawyer specifically for advice may not constitute a privileged communication. So a statement prepared by an employee at the request of a manager to record the employee's recollection of events is unlikely to benefit from legal advice privilege – even if the employee believes that the document will be passed to lawyers for advice – since it is not a communication with a lawyer. Accordingly if legal action is possible a health care professional might be best advised to consult an independent party that will provide a lawyer supervising the advice given, which, for example, might apply to advice given by a medical indemnity provider

[3]
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While the UK remains under European Court of Justice oversight and does not change its relevant law after leaving such oversight, one should be careful in obtaining the lawyer advice from a corporate in house lawyer of say your employer alone. This is because under EU commercial law it has been ruled that there is not sufficient separation between say the executives of a corporation and that corporation's in house lawyers. Similarly in the UK advice from an accountant purporting to be legal advice has been found wanting as a lawyer was not providing supervision. The same might apply if a healthcare professional provided advice that another healthcare professional assumed was protected under legal privilege. This has not apparently been tested, possibly because of supervision processes within large medical indemnity organisations

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Legal professional privilege covers confidential communications between a lawyer and his client, one or more lawyers acting for the client, or lawyers acting for the client and a third person (such as an expert witness) for the dominant purpose of providing legal advice or professional legal services in relation to a current or pending legal proceeding. It does not cover legal advice in an attempt to further a crime or fraud or to otherwise frustrate a process of law.

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As well as legal privilege under common law similar to other countries New Zealand has some interesting extensions to the concept. A party to a dispute or a mediator of a dispute has a privilege in respect of any communications or documents that were intended to be confidential and made in connection with an attempt to settle or mediate the dispute. This legal privilege does not extend to the terms of a settlement once it is actually reached. There is also privilege in relation to certain special types of confidential communication, including in criminal proceedings, with medical practitioners and clinical psychologists.

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Legal professional privilege will not attach to otherwise privileged communications which are in preparation for, or furtherance of, conduct which is morally wrong, criminal, fraudulent or injurious to the interests of justice.

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Each of the states has slight variations. In Federal Courts, the Federal Rules of Evidence, Rule 501 applies unless the US Constitution, federal statutes or court rules provide otherwise

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The concept does not exist due to the vaster greater powers invested in the concept that disclosure obligations in French litigation is extremely narrow. There is a general concept of professional secrecy which is a general obligation not to disclose secrets, imposed on all persons who, in light of their professional status, have access to such secrets. The obligation is sanctioned both by criminal law (art. 226-13 Criminal Code) and by disciplinary measures. The question of whether a document is protected by professional secrecy in France is determined not by the content of the communication, but by the role of the author and/or the recipient. This obligation is general, absolute and unlimited.

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Each of the states has major variations. Strictly legally the EU concept might only apply to commercial law. However it is widely assumed that the relevant Court of Justice ruling in 1982 that legal professional privilege as a fundamental right means that any state that enacted a restriction while that country was a member of the EU would be found wanting.

References