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Contesting Medical Confidentiality
Origins of the Debate in the United States, Britain, and Germany
By Andreas-Holger Maehle The University of Chicago Press
Copyright © 2016 The University of Chicago
All rights reserved.
ISBN: 978-0-226-40496-7
CHAPTER 1
Medical Privilege in Court: Protecting Patient Confidence or Obstructing the Course to Justice?
Introduction
One of the main problems for medical confidentiality in the nineteenth and early twentieth centuries was the question of whether doctors could be required to give evidence in court about their patients' physical or mental conditions. The ethical duty of medical secrecy, already expressed in the Hippocratic Oath around 400 BC, was widely regarded as constitutive of the physician–patient relationship, as it would support the trust patients placed in their doctors. This trust would encourage a patient to reveal details of his or her condition and its history that would help the doctor in arriving at the right diagnosis and in choosing the appropriate treatment. Such benefits of confidentiality were seen in some jurisdictions as a reason to exempt doctors from testifying to private details of their patients' medical information in court. Knowledge that personal medical information might be divulged in open court might prevent patients from seeing doctors in sensitive cases of illness, to the detriment of their health as well as of public health. On the other hand, valuable evidence might be lost through exclusions of medical testimony, perhaps even leading to judicial errors. This conflict — between the court's mission to establish the truth and the desire to protect patients' beneficial, fiduciary relationship to their doctor — was at the heart of many debates on medical confidentiality. It was controversial whether a medical privilege in court — that is, a physician's or surgeon's right to refuse giving evidence — was justifiable in the same way as the recognized legal privilege that protected the communications between attorney and client. Moreover, it was questionable whether the relationship between doctor and patient was truly comparable with that between a priest and his penitent and whether medical secrecy should be treated with the same respect as the seal of confession. This chapter discusses the different approaches to tackling the problem of medical confidentiality in court in Britain, the United States, and Germany and highlights the various arguments adduced by legal and medical commentators.
Legal Preconditions in Britain
The question of a medical privilege first arose publicly in late eighteenth-century England in the trial for bigamy of Elizabeth Chudleigh (1720–88), Duchess of Kingston. During this trial, held in April 1776 in front of the House of Peers, the duchess's surgeon and friend, Caesar Hawkins (1711–86), was asked by counsel for the prosecution whether he had known of a previous marriage between her and the naval officer August John Hervey, who had since become Earl of Bristol. Hawkins, who had been present at the birth of Chudleigh's and Hervey's child and had attended to the child before it died in infancy, was reluctant to answer the question. Instead, he raised the issue of medical confidentiality by repeatedly saying, "I do not know how far any Thing, that has come before me in a confidential Trust in my Profession, should be disclosed, consistent with my professional Honour." In response, Lord Chief Justice Mansfield (William Murray, 1705–93) made a statement that would set a precedent for centuries to come:
If no Lord differs in opinion, but thinks that a Surgeon has no Privilege to avoid giving Evidence in a Court of Justice, but is bound by the Law of the Land to do it [...] if all your Lordships acquiesce, Mr. Hawkins will understand, that it is your Judgment and Opinion, that a Surgeon has no Privilege, where it is a material Question, in a Civil or Criminal Cause, to know whether Parties were married, or whether a Child was born, to say, that his Introduction to the Parties was in the Course of his Profession, and in that Way he came to the Knowledge of it. [...] If a Surgeon was voluntarily to reveal these Secrets, to be sure he would be guilty of a Breach of Honour, and of great Indiscretion; but, to give that Information in a Court of Justice, which by the Law of the Land he is bound to do, will never be imputed to him as any Indiscretion whatever.
None of the Lords objected, and Hawkins subsequently gave evidence. The Duchess of Kingston was eventually found guilty of bigamy and "demoted" to Countess of Bristol. However, as a peeress, she was spared the usual corporal punishment for bigamy of being branded on the thumb, and before legal action to contest the will of the late Duke of Kingston could start, she had escaped to France.
With Lord Mansfield's statement, a privilege for medical men to refuse giving evidence about their patients, analogous to lawyers' established right to silence about their conversations with clients, had been rejected in the highest English court. Occasionally, judges lamented the fact that the law of privilege did not include medical practitioners. Justice Buller, for example, remarked during a trial in 1792 (Wilson v. Rastall), "There are cases, to which it is much to be lamented that the law of privilege is not extended: those in which medical persons are obliged to disclose the information, which they acquire by attending in their professional characters. This point was very much considered in the duchess of Kingston's Case, where sir C. Hawkins, who had attended the duchess as a medical person, made the objection himself, but was over-ruled, and compelled to give evidence against the prisoner." However, Buller said this as an aside when the actual issue at stake in the case, which was about bribery of voters in a borough election, was the confidentiality of communications between attorneys and their clients, not between medical men and their patients. Lord Mansfield's opinion in the Duchess of Kingston case was adopted in most English courts, turning it into a principle of common law. It also became accepted in Scots law, particularly after Lord Fullerton, as one of the judges in a case heard in the Scottish Court of Session (AB v. CD 1851), had endorsed it. In this case, a doctor was sued by a kirk elder for a breach of medical confidentiality by disclosing sensitive family information to the minister of the parish. The information suggested that the kirk elder's child had been conceived before marriage, and the elder had therefore been dismissed from the kirk session. Lord Fullerton confirmed the defense lawyer's point, referring to the trial of the duchess, that there was no medical privilege in court. On the other hand, this Scottish case established the principle that secrecy was an integral part of the contract between a medical man and his client.
It has been argued that Caesar Hawkins's reluctance in the Duchess of Kingston case to testify to the personal circumstances of his prominent patient predominantly had to do with his desire to be recognized as a man of honor — a gentleman — which was crucial for his professional reputation and the success of his practice. In fact, contemporary writers on medical ethics, such as the Edinburgh professor of medicine John Gregory (1724–73) and the Manchester physician Thomas Percival (1740–1804), included their demands for discretion in a framework that sought to establish the gentlemanly and professional conduct of physicians and surgeons. A physician, as Gregory had pointed out in 1772, often learned through his profession of the "private characters and concerns of the families" in which he was employed and got to see people "in the most disadvantageous circumstances" and "humiliating situations." His patients' reputations might thus depend on his "discretion, secrecy, and honour." "Secrecy," Gregory emphasized, "is particularly requisite where women are concerned."
Similarly, Percival exhorted the readers of his book Medical Ethics (1803) that "the familiar and confidential intercourse, to which the faculty [that is, medical profession] are admitted in their professional visits, should be used with discretion and with the most scrupulous regard to fidelity and honour." In his view, "secrecy and delicacy, when required by peculiar circumstances, should be strictly observed." For Percival, however, confidentiality does not appear to have been an absolute duty. Rather, medical secrecy, in his understanding, spared patients embarrassment in particular situations. Adherence to secrecy was, for him, one of the professional duties required by medical ethics. Observance of these duties formed the character of physicians and surgeons as gentlemen. In his discussion of their role as expert witnesses in court, Percival reminded physicians of their legal obligation to say "the truth, the whole truth, and nothing but the truth," even if their testimony might lead to capital punishment of the defendant. He did not address the question of medical privilege in this context. Twenty years later, in the case of Rex v. Elizabeth Gibbons (1823), a surgeon, Mr. Cozzens, who had attended to the defendant while she was on trial for having killed her illegitimate child, was held by the judge not to be entitled to refuse testimony concerning her confession to him. The Duchess of Kingston case served as a precedent for this ruling.
Medical Privilege in the United States
In Britain, the rejection of a medical privilege in court seems — initially — to have met no serious opposition beyond the occasional critical remark of a judge or the misgivings of a medico-legal expert. The issue developed differently, however, in the United States. As part of a more general legal reform, the state of New York in 1828 was the first to enact a statute against disclosure of confidential patient information in court: "No person duly authorized to practice physic [that is, medicine] or surgery, shall be allowed to disclose any information which he may have acquired in attending any patient in a professional character, and which information was necessary to enable him to prescribe for such a patient as a physician or to do any act for him as a surgeon."
While the exact circumstances of the introduction of this statute are not known, Justice Buller's statement in the case of Wilson v. Rastall and a wish to grant the medical profession the same privilege as the legal profession in keeping communications with clients confidential seem to have been relevant. The commissioners responsible for the revision of the New York statutes gave two reasons for the rule. First, they argued that in comparison with the established privilege for communications between attorney and client, which enabled proper preparation for legal proceedings, consultations with a medical adviser were even more deserving of protection against disclosure. Without it, people would refrain from seeking the medical help they needed. Second, driven by a sense of professional honor, medical men might be tempted to conceal the truth if they were compelled to give evidence about confidential patient details. The position of the Medical Society of the State of New York on this issue probably had played a role here. In its code of conduct, titled System of Ethics (1823), the society had declared that it was "a matter of justice, necessity and propriety" that the business of physicians and surgeons should always be considered as confidential and that medical secrecy should be "inviolable even in a court of justice." Comparing the duty of medical confidentiality with the secret nature of the Catholic confessional, the society required doctors appearing as expert witnesses in court to remain silent about matters such as questionable pregnancy and paternity, venereal diseases, alleged disabilities, virginity, and other circumstances that were linked with "a degree of shame" and "never mentioned but with an engagement to secrecy." The 1828 New York statute permitted physicians and surgeons to adhere to this code.
Missouri, in 1835, was the next state to adopt a medical privilege statute. A wave of such enactments followed in the late nineteenth century. By 1889, twenty American states or territories had introduced statutes restricting or prohibiting disclosure of patients' details in court by their physicians or surgeons, unless the patient had consented to it or the duty of medical confidentiality had explicitly been waived. Often, the rules for a medical privilege were set alongside those that protected the communications between attorneys and their clients and the confessions made to clergymen or priests. By September 1895, the number of states or territories recognizing a medical privilege had further increased to twenty-five. The other states continued to follow the English common-law rule that there were no restrictions on disclosure of patient details in court. By the beginning of World War I, Arizona, West Virginia, and the District of Columbia had joined the list of states that had enacted a medical privilege, but initiatives to this effect in Illinois and Massachusetts had failed. Twenty-one American states had no such law in 1914.
The formulations of the relevant statutes varied from state to state, leaving room for different interpretations and applications. For example, the scope of information that was necessary for a doctor to treat a patient, and that was thus protected, was controversial. Moreover, physicians or surgeons consulted for the means of procuring an abortion could, in some states, be forced to testify about this, regardless of a general medical privilege in court. Abortion, then regarded as a crime, was not meant to be "shielded" by medical confidentiality. In several states, the statutory medical privilege applied only to civil actions. In Ohio, it was legal practice to remove the medical privilege in criminal cases — for example, in a trial for rape. Finally, if a patient sought damages from her physician for malpractice, or from another party for personal injury, and for this purpose revealed in court full details of her condition and treatment, she could then lose the right to insist on the physician's confidentiality and to prevent him, or another physician who had been called in as a consultant at this occasion, from giving evidence. This so-called implied waiver of the privilege could also extend to the patient's records in a hospital, as later decided in a personal injury case in Missouri.
The range of medical practitioners to whom the privilege was applicable also was not entirely clear. In 1895, the Supreme Court of Michigan held, against previous opinion, that dentists were not included under the category of "surgeon" in the statutory privilege. It also took the view that the original purpose of the medical privilege was to "invite confidence in respect to ailments of a secret nature" but would not apply to cases "where the infirmity was apparent to every one on inspection." On the other hand, in a personal injury case in 1910, the Supreme Court of Indiana excluded the offered evidence of a medically unqualified superintendent of a gymnasium and orthopedic institute as privileged, although the relevant statute of this state referred to "physicians." And the Supreme Court of Idaho confirmed in an injury case in 1918 that a radiologist's observations were privileged alongside those of the attending physician.
Incorporated into the Code of Remedial Justice (1876) and its successor, the Code of Civil Procedure (1877), the New York statute itself was further revised several times in the late nineteenth and early twentieth centuries. The revisions provided the option for patients or their attorneys to issue waivers of confidentiality in trials and permitted physicians and surgeons to give evidence on the previous mental or physical state of a deceased patient with the consent of a relevant relative or other interested party, as long as the information did not include confidential communications or facts that might disgrace the memory of the patient. In 1904, professional or registered nurses were included under the medical privilege in court, and in 1905, an addition was made to section 834 of the Code of Civil Procedure compelling disclosure of information when a crime against a child under the age of sixteen was suspected.
Medical Confidentiality in German Law
In Germany, yet another approach was taken toward the question of medical secrecy. Here, state involvement in matters of health care was part of the Enlightenment concept of "medical police," which assumed that public measures to control and enhance the health of the population would strengthen a state's political and military power. Within this broader context, medical secrecy was an element of official health regulation. For example, a Prussian regulation forbidding medical personnel to disclose private details of their patients has existed since the early eighteenth century: the Prussian Medical Edict of 1725 ruled that "medical men must not reveal to anyone the secret faults and ailments which they have discovered." A more comprehensive regulation was included in the Preußisches Allgemeines Landrecht (Prussian General Law) of 1794, determining that doctors, surgeons, and midwives must not reveal "ailments and family secrets that come to their knowledge, as long as these are not crimes." Offences against this rule carried a fine between five and fifty thalers. Considering that according to the Prussian regulations on medical fees (Medizinaltaxe, 1725 and 1815), doctors could charge one thaler for a patient visit, this was a notable but not excessive punishment.
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Excerpted from Contesting Medical Confidentiality by Andreas-Holger Maehle. Copyright © 2016 The University of Chicago. Excerpted by permission of The University of Chicago Press.
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