21/03 Legislation 8:
How do the courts accommodate competing considerations? Such as the
right of a party to bring before a court all relevant evidence touching on
the matter in dispute as well as the protection of certain relationships which
have an inherent element of confidence, from invasion by the court
The Evidence Act 1908
Provides protection from the scrutiny of a court for communications
between husband and wife, by a confessor to a minister and by a patient to
8. Communications to clergymen and medical men-
(2) A physician or surgeon shall not, without the consent of the
patient, divulge in any civil proceeding (unless the sanity of the
patient is the matter in dispute) any communication made to him
in his professional character by such a patient, and necessary to
enable him to prescribe or act for such a patient.
Insurance is considered a private contract. One must disclose all relevant
information on making this contract, in order to be able to collect
insurance should the circumstances arise that this is needed.
If you are not absolutely truthful in the information you give the insurance
contract, the insurance company can decline to pay out on your death.
Whether we, acting for the insurance company, can call the doctor who
treated Mr Bellamy to prove that he didn‟t disclose everything he should
have in the initial screening interview he completed in order to obtain his
Lucena v. NMLA
Three types of information exchanged:
What the doctors saw when they treated Mr Lucena.
What the doctors told him after an examination- communication
by a doctor to a patient.
What Lucena told to a doctor after the examination.
Judge would rule that Lucena was not truthful when he filled out his
insurance policy, therefore did not fulfil his part of the contract and the
insurance company can therefore refuse to carry out their own obligations
according to the contract. Lucena‟s Estate- personal representative after his death- argued that this
section in the 1908 evidence act that this evidence to be permissible in
“Shall not” – absolute “and” – another requirement by the Act.
Do doctors fall within the category of „physician‟? Yes
“Shall not”- negative injunction- do these doctors have the
consent of the patient to divulge? No- not without consent.
“Civil proceeding”? Breach of contact falls under civil
Sanity of the patient- is not an issue.
Was there communication? The facts tell us that some
information was passed- was this information made to the
physician in his professional character? Yes, it was on a clinical
And was it necessary to enable the physician to prescribe or act
for the patient? Whatever got communicated was for the purpose
In terms of the evidence that the insurance company would like to use in
court, this act is telling us that they could not show a form containing the
communication made to a doctor in a professional capacity by a patient- it
falls within the words of the section.
Can they use what the doctor told to Lucena, after examination?
This raises the issue of whether a court can examine as evidence the
communication made to a patient by a doctor- using the plain meaning of
the section, this kind of communication is not protected from the scrutiny
of the court.
As for what the doctor observed about the patient‟s body and recorded,
based on these words, whether or not it can be used in evidence depends
on the interpretation of the word „communication‟.
One could argue that when a physician looks at a patient, he is
gaining information through the result of past study therefore
their own personal knowledge and expertise. Not a
communication by a patient to a doctor that will be protected
from the court.
If we give „communication‟ a wider meaning- the estate will argue
that communication can cover everything:
What the patient tells the doctor- evidently
What the doctor tells the patient What the doctor discovers as a result of examination-