Do doctors have the right, indeed the duty, to keep confidential everything that is imparted to them by their patients? Such secrecy certainly seems to be demanded by the Hippocratic Oath:
Whatever, in connection with my professional practice or not in connection with it, I see or hear in the life of men which ought not to be spoken abroad I will not divulge,as reckoning that all such should be kept secret.
But at the turn of the century a number of court cases brought home to British doctors the fact that there were no hard and fast rules governing disclosure. Some in the profession argued that since medical colleagues in Europe and parts of North America had the legal right to defend the secrecy of their "privileged communications", British doctors' reputations would suffer if they did not win the same power to guard secrets. At the June 1920 meeting of the British Medical Association a resolution urged its members to fight to keep confidential what they learnt in their consulting rooms. Doctors opposed to such views immediately made their voices heard. One asked rhetorically if the physician was to remain blithely silent and indifferent when he knew that a male patient suffering from venereal disease risked infecting his innocent family. "Does that resolution mean this - that we are, as a profession, to allow a bounder to live and his wife and child to die?" In conjuring up the image of the chivalrous physician gallantly protecting a wife from her brutish husband, those arguing in favour of a doctor's right to decide when and if to divulge information struck upon an appealing ploy. Who could fail to respond to the call to protect women and children? But if doctors were simply relied upon to use their discretion and good sense in such matters, was it likely that most would turn their knowledge to the purposes of protecting the weak from the strong, women from men, servants from their masters?
Only when a court action ensued was the fact that a doctor had disclosed a patient's secrets brought to public attention. Accordingly, an obvious way of probing the complexities raised by the issue is to examine what was long taken to be Britain's most publicized test of "privileged communication", the sensational Kitson versus Playfair trial of 1896. This celebrated case centred on a doctor's defence of his right of betraying, not a male, but a female patient's confidences. The primary importance of the trial and the responses made to it both inside and outside the medical profession is that it casts a revealing light on late-nineteenth-century doctors' confused understanding of exactly what confidentiality meant, a confusion exacerbated rather than clarified by court rulings. Secondly, the case demonstrates how the medical profession found, to its discomfort, that it was not left alone to police its duties, but was dictated to by its old rival, the legal profession. The last, though certainly not the least significant, aspect of the trial is that it shows how class and gender preoccupations shaped the practices of both law and medicine. The legal wrangles in Kitson v. Playfair took such surprising twists and turns precisely because such preoccupations were used to counter both the leter of the law and the scientific pronouncements of the London medical elite.McLaren concludes -
At the turn of the century the discussion of privileged communication took place within the context of rising public preoccupation with venereal disease, declining fertility, and changing sex roles. The press and laity thought that the Kitson v. Playfair trial had played an important role in establishing a clearer definition of doctors' duties as regards confidentiality. This was, as we have seen, untrue. Despite the general belief that doctors followed some elaborate secret code of ethics, the reality still was, noted one 1905 commentator, that "obedience to the dictates of medical ethics implies application to the ordinary chances of professional life of the rule that a man should do as he would be done by". In the age of AIDS the whole question of medical disclosure is being debated once more. Is the assumed good sense and ethical behaviour of doctors sufficient protection against abuse of the patient's confidences? A review of Kitson v. Playfair serves as a timely reminder that it is not quite that simple, that it is impossible to disentangle ethical issues from class, gender, and professional preoccupations.