Confidentiality Laws: Communication Forms And Their Compliance

Confidentiality involves a set of rules or a promise, often executed through confidentiality agreements, that restrict the distribution of certain types of information. Confidential communication is a form of interaction between two parties with the expectation of privacy. The law recognises privileged communication as a private, protected relationship between two parties, where the communication must remain confidential and cannot be forced to be disclosed.

Privileged communication includes relationships such as attorney-client, doctor-patient, therapist-patient, priest-parishioner, and spouses. These relationships are recognised as private by the law and are protected from disclosure unless the privilege is waived by either party.

Confidentiality is a critical aspect of various professions, including law and medicine, where client-lawyer and physician-patient confidentiality are legally protected.

Attorney-client privilege

The primary purpose of attorney-client privilege is to allow clients to freely share all relevant information about their case with their lawyer, without fear of it being used against them in legal proceedings. This enables lawyers to effectively carry out their duty to provide clients with zealous representation. Without this privilege, the opposing side may be able to surprise the lawyer in court, or a client may hide relevant facts they believe to be incriminating.

For a communication to qualify for attorney-client privilege, it must meet certain criteria. Firstly, it must be kept confidential, not disclosed to third parties or others who are not involved in providing legal advice. Secondly, it must be between an attorney and a client, or someone the client reasonably believes to be an attorney. Thirdly, the communication must be for the purpose of seeking or providing legal advice.

There are exceptions to attorney-client privilege, such as when the lawyer has reason to believe that the client may kill or seriously injure someone, cause substantial financial harm to another, or is using the lawyer's services to commit or plan a crime or fraud. In these situations, the lawyer has the discretion, but not the obligation, to disclose information to prevent the planned action.

Doctor-patient privilege

The concept of doctor-patient privilege is not recognised by common law, but it exists in all jurisdictions through statutory language. However, there are many exceptions to this privilege, and the ability to protect confidential information has been diminished. For example, the Federal Rules of Evidence in the United States do not include a general doctor-patient privilege, although Rule 501 does afford the privilege to a psychotherapist and patient relationship.

The privilege only applies to communications made during the course of a professional relationship between the physician and the patient. Information gathered outside of this context is not protected from disclosure. In some jurisdictions, conversations between a patient and a physician may be privileged in both criminal and civil courts. For example, a patient's confession to a psychiatrist about committing a crime may be covered by doctor-patient privilege.

The importance of doctor-patient privilege lies in fostering a level of trust between the doctor and the patient. This trust enables the physician to properly treat the patient, as the patient can feel safe disclosing sensitive information. For instance, a minor patient with a sexually transmitted disease may be reluctant to divulge the names of their older sexual partners for fear of legal repercussions. In some cases, the doctor may be legally obligated to report certain information, such as patients who are unfit to drive for medical reasons, but they cannot be forced to reveal the patient's identity except to specific organisations as specified by law.

It is important to distinguish doctor-patient privilege from doctor-patient confidentiality, which protects a patient's medical records and information outside of the context of a lawsuit. This protection is granted by state and federal statutes, such as the HIPAA Privacy Act in the United States.

Spouse privilege

Spousal privilege, also known as marital privilege or husband-wife privilege, is a term used in the law of evidence to describe two separate privileges that apply to spouses: the spousal communications privilege and the spousal testimonial privilege.

Spousal Communications Privilege

The spousal communications privilege, also known as the confidences privilege, is a form of privileged communication that protects the contents of confidential communications between spouses during their marriage from testimonial disclosure. This privilege applies in both civil and criminal cases and is far less controversial than the testimonial privilege. It is rooted in the idea that those who are married should feel safe openly communicating with each other without fear of future litigation or criminal proceedings.

In most jurisdictions, both the witness-spouse and the accused-spouse have the spousal communications privilege, and either may invoke it to prevent the witness-spouse from testifying about a confidential communication made during the marriage. It covers all communications made during the marriage and can be asserted even after divorce or the death of one spouse. However, it cannot be invoked to protect confidential communications that occurred prior to the marriage or if the spouses are suing each other or initiating criminal proceedings against each other. Additionally, the privilege is not applicable if the confidential communication was made to plan or commit a crime or fraud.

Spousal Testimonial Privilege

The spousal testimonial privilege, also known as spousal incompetency or spousal immunity, protects one spouse from being compelled to testify against the other in proceedings relating to their spouse. This privilege is held by the witness-spouse, not the party-spouse, and therefore does not prevent a spouse who wishes to testify voluntarily from doing so. Spousal testimonial privilege covers observations, such as the clothing worn by the spouse, as well as communications.

The spousal testimonial privilege can be invoked regarding events that occurred during the marriage if the spouses are still married and for events that occurred before the marriage if they are married at the time of the trial. This privilege only lasts as long as the marriage does and, like the communications privilege, does not apply if the spouses are suing each other or if one spouse has initiated criminal proceedings against the other.

Exceptions and Limitations

Both the spousal communications privilege and the spousal testimonial privilege have several exceptions and limitations. These privileges do not apply if the confidential communication was made to a third party or if the spouses are suing each other or initiating criminal proceedings against each other. Additionally, the privileges are typically suspended if one spouse is accused of a crime against the other spouse or their child, or in cases of domestic abuse. The privileges may also be suspended if both spouses are joint participants in a crime, depending on the jurisdiction.

Therapist-patient privilege

The precise details of privileges vary from state to state. For instance, the privilege may not apply in child abuse cases, or when the patient's mental health is itself a direct legal issue, or in litigation between two people present at a single counseling session, or in disputes between patient and therapist. The privilege also does not apply if the patient is using the session in furtherance of an ongoing or future crime or fraud.

The United States Supreme Court recognized a new privilege in federal courts for confidential communications between a psychotherapist and a patient in Jaffee v. Redmond. The Supreme Court concluded that Rule 501 “did not freeze the law regarding the privileges of witnesses in federal trials at a particular point in history” but allowed for adaptation of the law to changing circumstances. The Court noted the states’ unanimous legislative determination that a psychotherapist privilege is warranted and also examined the history in the federal courts of the psychotherapist privilege proposed in rejected Federal Rule of Evidence 504.

The Supreme Court in Jaffee first noted that “ [l]ike the spousal and attorney-client privileges, the psychotherapist-patient privilege is ‘rooted in the imperative need for confidence and trust.'” The patient’s private interests in confidentiality are significant, the Court concluded, because successful psychotherapy depends on the patient’s willingness to discuss “facts, emotions, memories, and fears,” public disclosure of which “may cause embarrassment or disgrace.” The public interest is also served by protecting therapist-patient communications because doing so facilitates treatment and the “mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.”

The therapist-patient privilege has three requirements:

• The communications must be confidential.
• The therapist must be a licensed psychotherapist.
• The communications must occur in the course of diagnosis or treatment.

The third element has not been well-defined and is a factual determination that rests on consideration of the totality of the circumstances. Relevant factors that might be included in this determination are historical aspects of the relationship, the patient's purpose in making the communication, the nature of the contact (including timing and location), and whether mental health services were provided or requested during the communication.

The effects of the Ninth Circuit's decision on the psychotherapist-patient privilege remain to be seen as the lower courts further define the elements affirmed by the United States Supreme Court in Jaffee v. Redmond.

Commercial confidentiality

Types of Confidential Information

Confidential information can take many forms, including trade secrets, intellectual property, personal information, and financial statements. Essentially, it is any secret information that, if revealed, could cause harm to the business.

Protecting Commercial Confidentiality

The best way to protect commercial confidentiality is through the use of Non-Disclosure Agreements (NDAs) and confidentiality agreements or clauses within contracts. NDAs require the party receiving the information to refrain from releasing it to anyone else. Confidentiality clauses outline an obligation not to disclose confidential information and are often included in formal contracts that require continuous disclosure of sensitive information.

Breach of Confidence

In the event of a breach of confidence, businesses may take legal action against the offending party. This typically involves sending a cease and desist letter, and if negotiations are unsuccessful, commencing formal legal proceedings. The possible outcomes of such proceedings include an injunction to prevent further use or disclosure of the confidential information and damages in the form of monetary compensation for any losses caused by the breach.

Public Sector Confidentiality

While commercial confidentiality is important in the private sector, it also plays a role in government contracts. The Freedom of Information Act 1982 (Cth) requires an overriding public interest against disclosure. This means that government contracts are generally assumed to be, at least partially, open to public scrutiny. However, confidentiality clauses can still apply in government contracts if there is a strong public interest in keeping certain information confidential.

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