Privileging Confidences: Some thoughts on the Brady Case

On the facts as reported it appears a mental health advocate has been arrested because she holds a sealed letter from Ian Brady to the mother of Keith Bennett.  That letter may, it is speculated, assist in the long search for Keith’s body.  She has instructions to release the letter on Brady’s death.  One possible explanation for this is that Brady is looking for some leverage in his battle to die on hunger strike.

On the facts as known, the best guess is that the advocate whom some of the press have referred to as a legal advocate is not a lawyer or providing services supervised by a solicitors firm, but is in fact an Independent Mental Health Advocate.  Some guidance on their ethical obligations can be found here.  My reading of that document is that it is the advocate’s role to assist them advocate to the authorities/carers in the exercise of their rights.   I cannot see the attempt to encourage some post-mortem communication with a victim’s mother as being part of the advocate’s role.

Furthermore, if the advocate in question is correctly quoted when saying, “her professional obligations meant she had to follow the killer’s instructions and keep the letter sealed until he dies,” she may well be proved wrong.  The guidance makes plain that ordinary duties of professional confidentiality apply and that these can be overriden by legal process (such as a court order).  There is thus an apparent recognition that the communications are not privileged.

The situation might of course be different if the advocate is in fact (say) a solicitor.  Communications between lawyer and client  that are confidential and made for the purpose of providing advice on legal rights and obligations are privileged.  They cannot be disclosed to a court or the police.  There are various reasons for doubting that would apply here.  The letter is sealed.  It is difficult to see how it would be proferred for advice on legal rights and obligations.  A wiser lawyer might decline to hold it; keep its existence confidential; or counsel the client carefully on the risks posed to the client’s plan if they instruct the lawyer to reveal its existence.  Indeed, the latter may have occurred.

There is of course a much broader issue: should a lawyer (or indeed an advocate) assist a client in such a strategy?  Lawyer’s are not obliged to act in such circumstances.  There is no cab rank rule to require this kind of tactic.  Obligations to act in the client’s interest are constrained by a broader obligation to the public interest.  Equally and oppositely obligations of confidentiality (ignoring the privilege issue) are strong (the profession reads them usually as ironclad, but this is not so). There are two ways in which an advocate taking this course of action might harm the reputation of their profession.  Firstly, there is a significant likelihood of public revulsion at the use of advocates in this way.  We have no idea what is in the letter or that this story will end well.  The possibility of significant harm to Keith Bennett’s mother is not a far fetched possibility.  Secondly, the case is very likely to lead to the disclosure of the letter to the authorities at least.  There is thus likely to be a very public signal of the vulnerability of supposedly confidential discussions between health advocates and their clients.  It is likely, I imagine, to make a health advocate’s job harder with other clients.  Conversely, such clients will at least be more aware of some limits to their confidentiality.

This leads me onto a broader issue which is the significance of privilege and its granting mainly/only to lawyers (there are some exceptions).  The accountants are currently fighting for legal professional privilege in relation to their giving of legal advice.  This is a competition issue rather than an issue of principle: the scrap is one to protect the confidences of tax avoiders, after all.  There is though a broader question: why do lawyers get the protection of legal professional privilege (albeit with some limits) and not (say) doctors or independent mental health advocates?  It is not an easy question to answer, particularly when one steps away from privilege granted in the context of litigation.  The common answer is that lawyers need to have the full facts to be able to advise their clients.  And that where clients disclose an intention to do wrong the lawyer can counsel against them.  These are both arguments which apply equally to other professions.  Indeed, in this case it is possible that the adviser here has managed Brady away from more harmful approaches towards a situation where his dying wish is frustrated and Keith Bennett’s mother gets some closure.  We do not know what Brady may have said to this advocate, and if he has been properly advised by them he would be aware of the risks that his letter would become public before he died.  But if his plan had worked, and (let us imagine) privilege would have helped him, then he would have been able to release the information on his terms and his terms alone.  It is not an edifying thought.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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4 Responses to Privileging Confidences: Some thoughts on the Brady Case

  1. Gillian Palmer says:

    Very thoughtful article, not set off to its best advantage by the rather alarming bouncing boobs underneath.

    • Richard Moorhead says:

      Really? Sorry, I can’t explain that: it doesn’t show when I look.

      • Michael Reed says:

        Your blog posts do have video ads at the bottom (just above the share this / like this buttons). I suspect you don’t see them, because you’re logged in as the author.

        For me it’s currently some sort of Walkers ad — they seem to think I want star shaped crisps — but it may vary from user to user.

        If you want, I believe you can turn them off by purchasing the ‘No ads’ upgrade.

  2. Gillian Palmer says:

    I wonder if this is an example of targetted advertising, and how badly it’s gone wrong. A middle aged (female) lawyer is perhaps more likely to indulge in star shaped crisps rather than East European well-endowed lovelies

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