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Report No. 93

VII. Medical Records

4.21. Physician and patient.-

It would be of interest to refer to some cases concerning medical records which have been decided in England. In general1, the common law does not recognise any privilege of non-disclosure in regard to information imparted by a patient to his physician in confidence. Although suggestions for reform of the law on the subject have occasionally been made, no1 such legislation has so far been passed in England. Some commonwealth jurisdictions are, however, understood to have enacted laws on the subject2.

1. Hunter v. Mann, 2 All ER 414 (2); Cross Evidence, (1979), pp. 296-297.

2. D. v. N.S. P.C.C., 1978 AC 171 (245): (1976) 2 All ER 993 (Lord Edmunds Davies).

3. Para. 5.4, infra.

4.22. The common law approach is represented by the dictum of Jesse] M.R., who pointed out that protection (in the law of evidence) is confined to communications which a man must necessarily make in order to obtain legal advice, when needed for the protection of his life fortune. There are, he observed, many communications which, though absolutely necessary because, without them, the ordinary business of life cannot be carried on, still are not privileged.1 "The protection is of very limited character and in this country is restricted to the obtaining of the assistance of lawyers as regards the conduct of the litigation or the right to property".

1. Wheeler v. LaMerchant, (1881) 17 Ch D 675 (Jesse' M.R.).

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