The appellant was indicted in December 1952 for robbery, housebreaking and grand larceny alleged to have been committed on October 25 and 27, 1952. Before trial, in proceedings under 18 U.S. C.A. § 4244, he was found in March 1953 to be “presently insane and so mentally incompetent as to be unable to understand the proceedings against him, or properly to assist in his own defense”. He was committed to St. Elizabeths Hospital “until he is mentally competent to stand trial * * * ”1 In October 1953 the Superintendent of the Hospital certified that the appellant was mentally competent to stand trial, and in November 1953 he was tried.
His only defense was insanity. A psychiatrist, Dr. Joseph L. Gilbert, who examined him five times in January and February 1953, at the District Jail, on order of the court, testified in support of this defense. In Dr. Gilbert’s opinion the appellant, at the time of the alleged offenses, was of unsound mind, suffering from dementia praecox, with symptoms that included confusion, memory failures, hostility, hallucinations and delusions. Dr. Gilbert also testified that appellant could not in a major way, or in any major activity, distinguish between right and wrong.
The prosecution called Dr. Leon Joseph Epstein, a staff psychiatrist and attending physician in the ward in which appellant was confined at St. Elizabeths from March to October 1953. Dr. Epstein promptly suggested that what he had learned from his patient was privileged. The court ruled it was not. Dr. Epstein then testified that appellant told him he had not suffered from hallucinations or delusions, but had been “going along with a gag” in describing such episodes. In Dr. Epstein’s opinion the appellant, when he saw him, could distinguish between right and wrong. He *401could not say whether appellant was able to do so at the time of the alleged offenses. He said appellant suffered from a “sociopathic personality disturbance with an anti-social reaction” and had a psychopathic personality, but was not psychotic or insane.
The appellant was convicted and sentenced to imprisonment for 5 to 15 years.
I
When an accused person has been judicially found incompetent to stand trial, it is erroneous to try him until it has been judicially determined that he is competent to stand trial. Gunther v. United States, 94 U.S.App.D.C. -, 215 F.2d 493 (decided after appellant Taylor was tried). There was no such judicial determination here.
If this were the only error a new trial might not be necessary. So far as this error is concerned justice might perhaps be served, in the circumstances of this case as in those of Gunther, by a remand to the District Court “to determine in a hearing whether appellant was competent to stand trial when he was tried and sentenced.” 215 F.2d at page 497. But there are other errors.
II
“In the courts of the District of Columbia no physician or surgeon shall be permitted, without the consent of the person afflicted, or of his legal representative, to disclose any information, confidential in its nature, which he shall have acquired in attending a patient in a professional capacity and which was necessary to enable him to act in that capacity * * *.” D.C.Code 1951, § 14-308, 29 Stat. 138. “ ‘The local statute is very broad. It forbids disclosure by the physician of any information obtained by him in his professional capacity.’ ” Sher v. De Haven, 91 U.S.App.D.C. 257, 260, 199 F.2d 777, 780, 36 A.L.R.2d 937, certiorari denied, 345 U.S. 936, 73 S.Ct. 797, 97 L.Ed. 1363.
In regard to mental patients, the policy behind such a statute is particularly clear and strong. Many physical ailments might be treated with some degree of effectiveness by a doctor whom the patient did not trust, but a psychiatrist must have his patient’s confidence or he cannot help him. “The psychiatric patient confides more utterly than anyone else in the world. He exposes to the therapist not only what his words directly express; he lays bare his entire self, his dreams, his fantasies, his sins, and his shame. Most patients who undergo psychotherapy know that this is what will be expected of them, and that they cannot get help except on that condition. * * * It would be too much to expect them to do so if they knew that all they say — and all that the psychiatrist learns from what they say — may be revealed to the whole world from a witness stand.” 2
“Presumably all of the patients in any good mental hospital are receiving psychiatric treatment. That is true of persons whether they are sent to St. Elizabeths Hospital as civil insane, as criminal insane, or as ‘sexual psychopaths.’ ” 3
Dr. Epstein testified that his work at St. Elizabeths was “entirely in the field of the treatment of patients that are mentally ill.” In reply to a question whether he functioned at the hospital as he would in private practice he said only: “There is an essential difference * * * by the very nature of the fact that most of the patients whom we see at St. Elizabeths are psychotic patients. In private practice the patients whom I see in my office are overwhelmingly psychoneurotic and they may be treated on an out-patient basis.”
Dr. Epstein treated the appellant about seven months. He testified: “In *402checking my notes I found five recorded interviews with him. However, I make daily rounds in the part of the hospital where he was a patient and had occasion to see him many other times.” Dr. Epstein was asked, “Did you as the attending physician of that ward look at the admittance record to see what diagnosis is placed on his chart as to his mental ailment?” He replied, “I did.”
Obviously Dr. Epstein attended Taylor “in a professional capacity”. Obviously he succeeded in getting his patient’s confidence. He tried to respect it as the District of Columbia statute requires. The court erred in requiring him to violate it.
The cases on which the government relies 4 do not support its position. They hold that a doctor who does not treat a prisoner, but only examines him in order to testify about his condition, may testify about it. Of course he may.5 Examination for testimonial purposes only has nothing to do with treatment, A doctor who makes such an examination is not “attending a patient”. There is no confidential relation between them. Instead of implying that confidence will be respected, the circumstances imply the contrary.6 It is a far cry from such cases to the government’s contention that a psychiatrist who treats a patient charged with crime may expose the nian s secrets to a jury despite a statute that expressly excludes information “acquired in attending a patient.” The statute does not say or imply that the privilege it creates may be withheld from patients who have been committed to a public mental hospital. Most courts that have considered the matter hold, as we do, that such patients are entitled to the protection of such a statute.7
18 U.S.C. § 4244, which provides for the examination of accused persons *403to determine whether they are competent to stand trial, does not limit the privilege of accused persons. It extends the privilege, though we need not concern ourselves with the extension. It restricts the testimony that a psychiatrist who so much as examines an accused person, pursuant to this section, may give. It provides: “No statement made by the accused in the course of any examination into his sanity or mental competency provided for by this section, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding.” Since the whole of Dr. Epstein’s testimony was inadmissible by reason of the District of Columbia privilege statute, we need not consider whether some or all of it would have been inadmissible by reason of 18 U.S.C. § 4244 if Dr. Epstein had merely examined Taylor and not treated him.
Taylor did not consent to the violation of his privilege. He made no effort to consent. No effort he might have made would have been effective. Since it had been judicially determined that he was incompetent to stand trial, he could not validly consent to a trial or any part of a trial.8 In the course of a civil trial, perhaps an incompetent’s committee might consent to the admission of privileged testimony.9 But this was not a civil trial and Taylor had no committee. He could no more authorize a “legal representative” to consent to the admission of Dr. Epstein’s testimony than he himself could consent. His failure to protest had no more effect than a positive expression of consent would have had.
What we have said relates only to the privilege of the accused when he is brought to trial. Exclusion of Dr. Epstein’s testimony in Taylor’s criminal trial does not mean that his testimony is to be excluded from consideration by the trial judge when he decides, in accordance with § 4244 and the rule of the Gunther case, the preliminary question whether Taylor is competent to stand trial. The judge may receive and consider, on that issue, any relevant testimony from Dr. Epstein. Section 4244 was passed after the District of Columbia privilege statute. It must be interpreted broadly enough to give effect to the apparent purpose of Congress that the question of competence to stand trial may be determined, at a judicial hearing distinct from the trial itself, in the light of all available information from the psychiatrists to whose care the accused has been committed.
III
The judge said to the jury: “ * * * we are not dealing with the question of his capacity to stand trial at this time because that has been established, by his having been released from St. Elizabeth’s Hospital * * Since no judge had found the appellant competent to stand trial, the quoted statement did not literally violate the provision of 18 U.S.C. § 4244 that “A finding by the judge that the accused is mentally competent to stand trial shall in no way prejudice the accused in a plea of insanity as a defense to the crime charged; such finding shall not be introduced in evidence on that issue nor otherwise be brought to the notice of the jury.” But we do not interpret the statute so narrowly. Its fair meaning is that the jury shall not be told that the accused has been found competent to stand trial. The judge’s statement therefore violated the statute. We cannot say it did not prejudice the defense of insanity.
IV
Durham v. United States, 94 U.S.App.D.C. -, 214 F.2d 862, had not been decided when Taylor was tried, *404and the judge necessarily instructed the jury on the “right and wrong” and “irresistible impulse” tests then in use. But in the course of his instruction he said: “Dr. Epstein testified that in his opinion the defendant is not insane; that he has what is called a sociopathic disturbance which is not a mental disturbance and which is not within the definition of insanity as defined by law.”
Dr. Epstein did not testify that “a sociopathic disturbance * * * is not within the definition of insanity as defined by law.” He neither did nor could testify as to what is or is not within the legal definition of insanity. Accordingly the judge cannot have meant, and the jury can hardly have thought he meant, that Dr. Epstein gave such testimony. Since the judge did not mean that, he must have meant to tell the jury that “a sociopathic disturbance * * * is not within the definition of insanity as defined by law.” The jury can hardly have failed to think they were so instructed.
But it is for the jury, not the judge, to decide whether a given psychiatric diagnosis, if accepted, brings the accused within the legal definition of insanity. Stewart v. United States, 94 U.S.App.D.C. -, 214 F.2d 879, 882. The instruction was therefore erroneous.
V
The appellant did not testify. He was not voluntarily in court. The judge said to the jury: “You have observed the defendant at this trial. You have a right to take that into consideration.”
If such instructions were commonly given, defendants who plead insanity would be encouraged to make a show of insanity in court. Since we are reversing the conviction on other grounds we need not consider whether the instruction violated appellant’s constitutional privilege against compulsory self-incrimination.10
VI
The appellant says the judge told the jury, in effect, that if the appellant was acquitted he would go free. We think he did not convey that erroneous idea. But we think that when an accused person has pleaded insanity, counsel may and the judge should inform the jury that if he is acquitted by reason of insanity he will be presumed to be insane11 and may be confined in a “hospital for the insane”12 as long as “the public safety and * * * [his] welfare” require.13 Though this fact has no theoretical bearing on the jury’s verdict it may have a practical bearing.
VII
“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Rule 52(b), Fed.Rules Crim.Proc. 18 U.S.C.A. We have repeatedly applied this rule to errors in admitting evidence and instructing juries.14 It is especially appropriate when the mental competence of the accused is in question. His competence cannot be assumed and his rights disregarded because he has done the physical acts charged.
The judgment is reversed for the reasons discussed in parts I, II, III and IV of this opinion.
Reversed.
. 18 U.S.C.A. § 4246 provides that when an accused is found mentally incompetent “the" court may commit the accused to the custody of the Attorney General or Ms authorized representative, until the accused shall be mentally competent to stand trial * *
. Guttmacher and Weihofen, Psychiatry and The Law (1952), p. 272.
. Winfred Overholser, Superintendent of St. Elizabeths, ’‘Some Problems of the ‘Criminal Insane’ at Saint Elizabeths Hospital”, Med .Ann. of D.C., Vol. XXII, p. 349, July 1953.
. Catoe v. United States, 76 U.S.App.D.C. 292, 131 F.2d 16; People v. Sliney, 137 N.Y. 570, 33 N.E. 150; Commonwealth v. Di Stasio, 294 Mass. 273, 1 N.E.2d 189; etc.
In Neely v. United States, 1945, 80 U.S.App.D.C. 187, 150 F.2d 977, the defendant (1) was already convicted, (2) was not under treatment, and (3) himself asked that the Commission on Mental Health inquire into his sanity and report to the court.
. This assumes the absence of a special statute, such as 18 U.S.C. § 4244, which restricts the examining doctor’s testimony; and the absence of deceit, cf. People v. Leyra, 302 N.Y. 353, 98 N.E.2d 553, Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948. “The general rule, in jurisdictions having a statute prohibiting a physician or surgeon from disclosing information acquired in attending a patient in a professional capacity, is that where the physician or surgeon is consulted for the purpose of examination only, and not for treatment, communications made to him, or information acquired by him, on such examination, are not privileged.” 107 A.L.R. 1495.
. In the Catoe case, supra note 4, the prisoner was expressly warned, as he should be, against making damaging statements. Moreover Catoe was and Taylor is not within an express statutory exception absolving physicians from the obligation of confidence in criminal cases that involve injuries to human beings.
. Massachusetts Mut. Life Ins. Co. v. Board of Trustees of Michigan Asylum for the Insane, 1913, 178 Mich. 193, 144 N.W. 538, 51 L.R.A.,N.S., 22; Casson v. Schoenfeld, 1918, 166 Wis. 401, 166 N.W. 23, L.R.A.1918C, 162; Linscott v. Hughbanks, 1934, 140 Kan. 353, 37 P.2d 26; Westphal v. State, 191 Misc. 688, 79 N.Y.S.2d 634, 638; McGrath v. State, 200 Misc. 165, 104 N.Y.S.2d 882; Petition of Maryland Casualty Co., Sup., 78 N.Y.S.2d 651. As Judge Prettyman points out, some New York courts have held the contrary.
“The great weight of authority * * * is to the effect that the fact of the patient being an inmate of an asylum or hospital does not deprive the patient of the protection of [such a] statute. * * * ‘It is not necessary, in order that matter communicated to a physician be held privileged, that the physician be employed by the patient. On the contrary the rule seems to be that so long as the physician acted in a professional capacity, and obtained information for the purpose of prescribing for the' patient in that capacity, the matter is privileged, regardless of who employed him or how he came into the case.’ ” Linscott v. Hughbanks, supra, 37 P.2d at page 31.
. “The patient whose medical history is sought herein being incompetent * * * privilege cannot be waived * * * ” Westphal v. State, 191 Misc. 688, 79 N.Y.S.2d 634, 641.
. McGrath v. State, 200 Misc. 165, 104 N.Y.S.2d 882, 888.
. Cf. Holt v. United States, 218 U.S. 245, 252-253, 31 S.Ct. 2, 54 L.Ed. 1021; McFarland v. United States, 80 U.S.App.D.C. 196, 150 F.2d 593; Wigmore on Evidence, 3d ed., §§ 2263, 2265.
. Orencia v. Overholser, 1947, 82 U.S.App.D.C. 285, 163 F.2d 763.
. D.C.Code 1951, § 24-301. Cf. 24 U.S. C.A. § 211.
. Barry v. White, 1933, 62 App.D.C. 69, 71, 64 F.2d 707, 709. Cf. Durham v. United States, 94 U.S.App.D.C. —, -, 214 F.2d 862, 876, fn. 57.
. E. g., Robertson v. United States, 84 U.S.App.D.C. 185, 171 F.2d 345; Simmons v. United States, 92 U.S.App.D.C. 122, 206 F.2d 427.