Chapter 10 Privilege and confidentiality

R20 We recommend that the word “obtains” in s 54(1) be replaced with “requests and / or obtains”.

R21 We recommend that the termination of the privileges contained in ss 56 and 57 be kept under review with any problems identified to be considered at the next five year review.

R22 We recommend amending s 57 to apply expressly to criminal proceedings, and adding a paragraph to s 57(3) that allows a court to order disclosure if the court considers that, in the interests of justice, the need for the communication or document to be disclosed in the proceeding outweighs the need for the privilege, taking into account the particular nature and benefit of settlement negotiations, mediation or plea discussions as the case may be.

R23 We recommend amending s 59 to make it clear that the exemption from the privilege in s 59(1)(b) applies to communications, observations and information collected or generated during a court-ordered assessment and does not affect the privilege that attaches to other medical records of the privilege-holder.

R24We recommend that the issue of whether court-ordered assessments should continue to be excluded from the protection of medical privilege by s 59(1)(b) should be examined further in the context of a proposed wider review of issues relating to the Criminal Procedure (Mentally Impaired Persons) Act 2003 and appropriate consultation with the health sector should occur at that time.

R25We recommend that the definition of “overseas practitioner” in s 57(1) be replaced with “Any person who is, under the laws of their country, recognised as being properly qualified to undertake work that is normally undertaken by a lawyer or patent attorney.”

R26We recommend that s 51(6) be repealed and the Evidence (Recognition of Overseas Practitioners) Order 2008 be revoked.

R27We recommend deleting the words “given, or” in the phrase “given, or to be given” in s 51(3).

R28We recommend that “deceased” should be added after “personal representative of the” in s 66(2).