Should A Doctor Tell? : The Evolution of Medical Confidentiality in Britain

Medical confidentiality has long been recognised as a core element of medical ethics, but its boundaries are under constant negotiation. Areas of debate in twenty-first century medicine include the use of patient-identifiable data in research, information sharing across public services, and the implications of advances in genetics. This book provides important historical insight into the modern evolution of medical confidentiality in the UK. It analyses a range of perspectives and considers the broader context as well as the specific details of debates, developments and key precedents. With each chapter focusing on a different issue, the book covers the common law position on medical privilege, the rise of public health and collective welfare measures, legal and public policy perspectives on medical confidentiality and privilege in the first half of the twentieth century, contestations over statutory recognition for medical privilege and Crown privilege. It concludes with an overview of twentieth century developments. Bringing fresh insights to oft-cited cases and demonstrating a better understanding of the boundaries of medical confidentiality, the book discusses the role of important interest groups such as the judiciary, Ministry of Health and professional medical bodies. It will be directly relevant for people working or studying in the field of medical law as well as those with an interest in the interaction of law, medicine and ethics. Cover 1 Contents 6 Acknowledgements 10 List of Abbreviations 12 Preface 14 1 An Introduction to the History of Medical Confidentiality 18 Medical Confidentiality 18 Essentialism and Presentism 19 Continuity 19 Change 21 Ideal Types 22 Interest Groups and Issues 23 Format and Structure 25 2 The Duchess of Kingston Precedent 30 The Duchess 30 Background to the Trial 31 The Spectacle and Theatre of the Trial 32 Professional Reputation and Personal Honour 38 The Outcome 40 An Enduring Precedent 41 Influence in Scotland 42 Medical Jurisprudence 43 Opposing views 44 3 The Long Nineteenth Century 46 Professional Identity and Ethics 46 The British Medical Association 49 The General Medical Council 49 Growing State Activity in Health and Medicine 50 Penumbral Areas of Law 52 Growing Dual Loyalty Obligations 53 GMC Memorandum on Confidentiality 1899 54 Mixed Signals 55 Notification of Abortion 56 Royal College of Physicians – Avory and Clarke 57 Avory and Annie Hodgkiss 60 BMA Central Ethical Committee and Saundby’s Memo 62 The GMC, RCS and RCP 66 Summary 69 4 The Ministry of Health 72 Royal Commission on VD 72 Ministry of Health 74 Confidentiality of VD Treatment 75 Garner v Garner 78 Approach to the Lord Chancellor 81 International Comparisons 85 Dr Elliot: The Ministry’s Medical Martyr 88 5 The BMA 96 With Cries of ‘No’ and ‘Yes’ – The Central Ethical Committee, 1920 97 ‘For They Did Not Wish to be Anarchists’ The CEC, 1921 100 Summary of 1921 Developments 110 The Guiding Light of Conscience – the First Meeting of the BMA Professional Secrecy Committee, 1922 111 The Second Meeting of the BMA Professional Secrecy Committee 116 Sibling Rivalry and the ‘Spoilt Child of the Professions’ 122 The Annual Representatives Meeting, 1922 123 Moved to Inertia – the BMA Put Privilege on Long-Term Hold 125 6 The Lord Chancellor 128 A Barometer of Legal Views 128 Gathering Legal Ammunition 130 Should a Doctor Tell? 138 The Very Pernicious Heresy About Medical Privilege 140 7 The Attempts at Legislation 142 Medico-Legal Problems in Relation to VD 143 The Background to the 1927 Bill 144 Anything You Say Will Be Taken Down and Used in Evidence Against You 147 In Mr Neville Chamberlain’s Hands the Matter Will Not be Allowed Again to be Forgotten 149 The Medical Practitioners’ Communications Privilege Bill 155 One Hour and Forty Minutes on a ‘Not Altogether Unusual’ Friday Afternoon 162 Conclusion 168 8 The Nature and Extent of Crown Privilege 172 Common and Statute Law 172 Military and Civilian Medicine 173 Crown Privilege 174 Personal Injury Cases 177 Background to Committees and Reports on Privilege 178 Official Committee on Crown Privilege 180 Ministerial Committee to Consider the Report on Crown Privilege 185 Lord Chancellor Statement, 1956 188 Continued Unrest in the Courts 190 Working Party on Crown Privilege for Service Medical Records 193 Law Reform Committee Report on Privilege 198 Conway v Rimmer 200 Conclusion 204 9 Old Issues and New Challenges: Confidentiality and Privacy 206 Information Sharing Within Medicine and Access to Medical Records 207 The Growing Information State 209 Early Attempts at Privacy Legislation 210 Younger Committee on Privacy 212 Government White Papers on Computers and Privacy 214 Data Protection (Lindop) Report, 1978 216 Law Commission Reports and Continued Interest in Medical Privilege 219 Mulholland and Foster – Journalist Martyrs 224 D v National Society for the Prevention of Cruelty to Children (NSPCC) 226 VD Regulations 228 Hunter v Mann 232 BMA Handbook, Critiques and Crossroads 233 Confidentiality and Privacy 238 Epilogue 240 Bibliography 242 Index 252 The Evolution of Medical Confidentiality in Britain This volume places the key precedents in the development of the law governing medical confidentiality back into their socio-historical context. By re-examining important precedents, the work brings fresh insight to oft-cited cases thus providing an introduction to key issues and the background to current debates.