Case 7. Privileged Secrets

Albert, a Catholic physician, consults Caius the priest concerning the obligation of preserving a secret; for he says that recently the matter has been greatly agitated among physicians and that they do not all agree among themselves. For while, he says, some say that a woman who had consulted a physician in order to procure an abortion is to be denounced to the police officers, others, on the contrary, assert that the secret of any client of sound mind is never to be disclosed to anyone without his consent; and the civil judges themselves doubt whether a physician who in court refused to disclose a secret entrusted to him should be punished as contumacious. Hence Albert wishes to know the Catholic doctrine concerning secrets to be preserved, and specifically whether he can or is bound to denounce a woman who had asked him for a medicine by which she could procure an abortion. Hence it is asked:

1. What are the various species of secrets?

2. Can the several kinds of secrets be disclosed, and when?

3. What does our municipal law establish concerning this matter?

4. What is to be said of the case?

1. This question is answered on p. 337.

2. This question is answered on p. 338.

3. What does English law lay down on this matter? “Professional communications between counsel, solicitors, or their clerks, and their clients, made in confidence, can not be disclosed without the client's consent, nor can a client be compelled to disclose any communication made in confidence to his professional adviser.”¹ It is said that the case of privilege does not extend beyond the persons here mentioned, but doubts have been expressed in court whether doctors and clergymen can be compelled to disclose what has been told them professionally in confidence. Moreover, “a witness can not be asked, and will not be allowed to state, any facts, or to produce any documents, the disclosure of which may be prejudicial to the public interest, e.g., in the case of some high documents of State.”²

1 Indermaur, Principles of the Common Law, p. 471.

2 The same work, p. 476.

4. The case. Whatever English law may say on the matter, in the forum of conscience a doctor may not denounce to the authorities a woman who has asked him to give her medicine to procure abortion. Her criminal intention is only known to him as a professional secret, and such a secret he should faithfully keep when it refers to a past act. He should tell the woman what a crime she is guilty of in intention at least, and do what he can to deter her from committing it. He may threaten to inform against her if she attempts it, and if he can not prevail on her to give up the idea of procuring abortion, he will be justified in informing those who can prevent it, and even the public authorities, as there is question of saving the life of the innocent child which is threatened by the person whose secret is in question. In those circumstances the right to the secret lapses.