Should a Doctor Tell? The Evolution of Medical Confidentiality in Britain by Angus H. Ferguson (review)

Given that confidentiality has been part of codes of medical conduct since the Hippocratic Oath, historians have paid surprisingly little attention to this subject. After Raymond Villey’s monograph on medical secrecy in France and the study of disease surveillance and privacy in the United States by Amy Fairchild et al., Ferguson’s is only the third book-length history of medical confidentiality, and the first to comprehensively address the topic for Britain.¹

Ferguson’s narrative starts with an analysis of the Duchess of Kingston’s trial for bigamy (1776), in which Lord Chief Justice Mansfield denied her surgeon, Caesar Hawkins, a privilege to refuse giving evidence. Although, as Ferguson argues, Hawkins’s reluctance to speak had more to do with his wish to bolster his reputation as a gentleman than any deeper concern about professional confidentiality, Mansfield’s rejection of a medical privilege in court set a common law precedent that has been influential in Britain to the present day. A subsequent chapter further explores the tensions between the medical profession’s interest in preserving confidentiality and demands of the judiciary for medical evidence. As Justice Henry Hawkins made it clear in 1896, it was for the judge to decide whether a doctor had to testify in court or not, depending on the particular circumstances of the case. Another contentious question was whether doctors were obliged to notify the police if they became aware of a case of criminal abortion. Ferguson highlights the criticisms voiced in 1914 by Justice Horace Avory, who, unable to convict a suspected abortionist, scolded the medical practitioners involved in the case for having omitted to inform the authorities before the woman died from complications of the intervention. The medical professional organizations rejected such criticism, claiming that doctors’ duty of confidentiality to their patients was higher than their duty to the state.

The core subject of Ferguson’s study, discussed in chapters 4 to 6, is the conflicts that doctors experienced in the 1920s, when they were forced by judges to give evidence in divorce proceedings about their patients’ venereal disease infections, although the Public Health (VD) Regulations of 1916 guaranteed confidentiality for patients who visited one of the government-sponsored VD treatment centers. Drawing upon the archives of the Ministry of Health, the British Medical Association, and the Lord Chancellor’s Office, Ferguson demonstrates in detail how health officials and representatives of the medical profession tried to gain protection for medical confidentiality in court at least for cases involving venereal disease, but failed in the face of rulings of Justices McCardie and Horridge and the resistance of Lord Chancellor Birkenhead. While the key medical argument was that the risk of disclosure in court endangered the success of the public health campaign against VD, the prevailing legal argument was that medical confidentiality must not stand in the way of the administration of justice. As Ferguson further details in chapter 7, two private member bills for a medical privilege in court, introduced into Parliament by dermatologist Ernest Gordon Graham-Little in 1927 and 1936, likewise failed.

In the penultimate chapter Ferguson turns to the post–World War II discussions on the extent of the Crown Privilege, that is, a ban on disclosure for certain classes of documents held by, or on behalf of the state, including medical records of prisoners and military personnel. After extensive debate in various official committees, the judiciary gained also here the upper hand. A case in 1968 (Conway v. Rimmer) established that a minister’s declaration that a class of documents of their department is privileged can be overruled by the court. The final chapter considers additional challenges to medical confidentiality that have arisen since then, especially with the increasing storage and linkage of personal health data in computer systems. Together with the implications of the Human Rights Act 1998, which recognizes a right...