Preserving Confidentiality or Obstructing Justice? Historical Perspectives on a Medical Privilege in Court

Abstract

An important problem 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' condition. On the one hand, knowledge that personal information might be divulged in open court might prevent patients from consulting a doctor on sensitive illnesses, to the detriment of their health as well as of public health. On the other hand, valuable evidence might be lost through exclusion of medical testimony, perhaps even leading to errors of justice. This paper compares the different approaches that have been taken to this problem in the United Kingdom, the USA and Germany, and highlights key arguments, cases, and regulations that have shaped the issue of a medical privilege in court. It shows that the origins of the different routes taken – from rejection of a medical privilege to its inclusion in codes of civil and criminal procedure – lay in the eighteenth and early nineteenth centuries. Moreover, it suggests that the treatment of confidentiality in court reflected the power relations between the legal and medical professions.