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Privacy is a First World fancy

By Mirko Bagaric - posted Friday, 31 August 2007

The fact that a person attends a doctor does not automatically give them immunity from being held to account for the reason they sought medical advice.

Moreover, medical problems are no more worthy of confidentiality than economic or social problems.

That's why it is farcical that the AFL should be trying to invoke the supposed confidentiality of medical records as a basis for hiding the identity of AFL footballers whose wayward medical files made it into the hands of Channel 7.


Legally, medical records are not confidential in the absolute sense. It is unlawful for doctors to release them to others without the consent of the patient, but this duty is not transmittable. It does not oblige other people who happen to come across the records to keep them secret.

From an ethical perspective, the fact that a person attends a doctor to discuss a behavioural or other problems does not make that conduct beyond the purview of others. Violent offenders who attend doctors for anger problems and rapists who attend doctors for their "sex addiction" don't obtain a shield regarding disclosure and evaluation of their behaviour.

The same applies to people who see a doctor regarding drug use. Their problem is no more worthy of protection than that of drug takers who do not seek medical treatment. Thus, it is nonsense to suggest that the identity of the drug-taking footballers should be kept confidential because they went to see a doctor about their drug use.

The notion that medical problems are innately more confidential than other problems is misguided. People encounter all sorts of difficulties in their lives. People lose their jobs, their partners, experience financial ruin and sometimes they get sick.

As a matter of principle, getting sick is just another one of the unfortunate things that happen to us from time to time. Often the nature of our medical ailment, like our social and economic ills, is patently obvious.

Breaking a bone or being paralysed is no less hurtful and debilitating than suffering most medical conditions which are latent, in terms of being publicly perceptible. Yet, there are no laws or ethical prohibition against reporting and commenting on the fact that a person is obviously ill or disabled.


So why the paranoia, bordering on fanaticism, about keeping medical reports confidential? It is part of the demonstrably unhealthy Western obsession for the right to privacy, which is the sort of inward-looking selfish fixation people develop in the absence of genuine concerns regarding their wellbeing - how worried do you reckon people in Third World countries (who are wanting for the necessities of life) are about their right to privacy?

The right to privacy is illusory. There is no rational basis for its existence. And what's more, it actually diminishes our individual and collective wellbeing.

An important paradox that emerges in relation to the right to privacy is that the more tightly certain types of information is guarded, the more entrenched is likely to remain its significance and the prejudice that it can induce. Familiarity with a particular trait leads to greater levels of tolerance.

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First published in The Courier-Mail on August 29, 2007.

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About the Author

Mirko Bagaric, BA LLB(Hons) LLM PhD (Monash), is a Croatian born Australian based author and lawyer who writes on law and moral and political philosophy. He is dean of law at Swinburne University and author of Australian Human Rights Law.

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