THE MEDICO-LEGAL ASPECTS VENEREAL DISEASE*

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THE MEDICO-LEGAL ASPECTS OFVENEREAL DISEASE*

By W. DERWENT R. THOMPSON, M.R.C.S.Eng., L.R.C.P.Lond.,D.P.H., of the Inner Temple, Barrister-at-Law

MADAM PRESIDENT, LADIES AND GENTLEMEN,-In thefirst place I should like to stress the difficulty of dis-cussing the conflicting views which usually arise when themedical practitioners meet their legal brethren.

For the past I50 years the subject of privilege hasoccupied the attention of both the medical and legalprofessions and to a certain extent the lay Press. Muchdiscussion has taken place in that time, and up to thepresent day the rule of disclosure in the Courts has neverbeen relaxed for all practical purposes, and any attemptto arrive at a harmonious conclusion has always beenrigidly opposed by the legal profession. I, therefore, nowpropose to place before this meeting a historical survey ofthe position and to elaborate to some extent the argumentswhich have been employed from both aspects. Havingdealt with the general conditions prevailing in the Courtswith regard to medical evidence I will pass on to theparticular points appertaining to venereal disease.

It is the law of this country that secrets of patientsobtained by medical men in the course of their professioncannot be withheld from a Court of Law if their revelationbe necessary for the purposes of the law.

Medical men may be compelled to disclose com-munications made to them in professional confidence.

Apart from State officials, such as Ministers of theCrown, Judges of the High Court and others placed insimilar positions of more or less supreme authority, pro-tection so far as professional secrecy is concerned ispractically confined to the law and the Church. Barristersare naturally precluded from being required, in givingevidence, to disclose matters which are communicated tothem by a solicitor, and solicitors are similarly precluded

* Based on an address delivered before the Medical Society for the Study ofVenereal Diseases, February 28, 1936.

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MEDICO-LEGAL ASPECTS OF V.D.

in regard to the confidence of a client. A solicitor whobetrayed such confidence, when he went to the Court,would probably be struck off the rolls.The exact origin of the rule is lost in the past, but it

was founded on professional custom,. backed by strongcommon sense.

So far as the Church is concerned, the privilege appearedto have gained recognition on sentimental grounds whichare respected by the Courts.

In the case of the medical profession, the recognitiongiven in certain countries is much greater than here.Under the penal code of France, imprisonment is imposedfor disclosure of professional matters without consent ofthe patient. A similar enactment exists in some seventeenof the States in America.

In Scotland, in the Court of Session, it has been decidedthat " secrecy is an essential condition of contract betweena medical man and his employers, and a breach of secrecyaffords a relevant ground for an action of damages."

In England there is great confusion of thought anddecision as arising out of recorded cases and dicta ofJudges.The leading case settling the law of this country that a

medical witness cannot claim any such privilege was laiddown at the trial of the Duchess of Kingston for bigamy,before the House of Lords in I776. Lord Mansfield, C.J.,said " that if a surgeon were voluntarily to reveal thosesecrets, to be sure he would be guilty of a breach of honourand of a great indiscretion, but to give that informationin a Court of Justice, which by the law of the land he isbound to do, will never be imputed to him as any indis-cretion whatever."The same rule was followed by Park, B., in R. v.

Gibbons (I823)-" that is no sufficient reason to preventa disclosure for the purpose of justice,"-and in Broadv. Pitt, Bert, C.J., stated that-" there is no privilege ofthis description in the case of a medical man." On theother hand, in Kitsons v. Playfair (I896), a libel action,where the defendant had published a statement that theplaintiff had " had a miscarriage under such circumstancesthat her pregnancy could not have been of a legitimatecharacter," Hawkins, J., in course of his judgment, wasextremely sarcastic in his reference to the medical manwho disclosed what he did in that case, and went to the

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BRITISH JOURNAL OF VENEREAL DISEASES

length of saying that it would make him extremely carefulwhat medical man he himself consulted in the future.

In January, I896, the Royal College of Physicians ofLondon sought the opinion of two eminent counsel,namely, Sir Edward Clarke and Mr. Horace Avory. Thequestion was put: " Has a medical practitioner anyprivilege with regard to secrets confided to him in thecourse of his practice analogous to the privilege as betweensolicitor and client or otherwise?" Opinion: " We areof opinion that there is no privilege attaching to state-ments made to a medical practitioner by his patient."

Certain observations of Avory, J., at the BirminghamAssizes in I9I5 brought the question into prominenceagain. It concerned the case of a woman, who had beencommitted on a coroner's warrant on a charge of man-slaughter following an illegal operation. The deceasedhad confided the name of the person who performed theact to at least one of the three medical men who attendedher. The learned Judge in the course of his remarks said :" I cannot doubt that it is the duty of the medical manto communicate with the police for the purpose of assistingthe administration of justice, by taking the necessarysteps to procure a dying declaration. No one would wishto see disturbed the confidential relation which exists,and which must exist, between the medical man and hispatient, in order that the medical man may properlydischarge his duty towards his patients, but there arecases, of which it appears to me that this was one, wherethe desire to preserve that confidence must be sub-ordinated to the duty which is cast upon every goodcitizen, to assist in the investigation of a serious crime,such as is here imputed to this woman."

This led the medical profession to send an importantdeputation to the Lord Chief Justice (Lord Reading), theLaw Officers of the Crown and the Director of PublicProsecutions (Sir Charles Mathews), to confer on thesubject of professional secrecy. On that occasion SirCharles Mathews was particularly desirous that themedical profession should consent to act in a manner asprivate detectives in the discovery of crime. This thedeputation flatly declined to recognise in any sensewhatever, and were successful in disabusing his mind ofthe idea that the profession would act in that capacity.A new departure was heralded by the Public Health

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(Venereal Diseases) Regulations, I9I6, Article ii (2), asfollows: " All information obtained in regard to anyperson treated under a scheme approved in pursuance ofthis Article shall be regarded as confidential." TheRegulations governing the treatment of venereal diseasein this country are framed to ensure a system so discreetthat not only is the patient safeguarded by anonymitybut it is practically impossible to trace the origin of anycase at a public clinic. Unfortunately the protectionunder the Regulations is overridden when necessities of alaw-suit demand that a medical man shall divulgeinformation that he has learned in professional confidence.The leading case in this conflict is Garner v. Garner inI920. The facts of the case are as follows. The petitionerwas the wife, and adultery by the respondent was proved ;the cruelty consisted in the communication of syphilisby the respondent to the petitioner. The Medical Officerof the Venereal Department, Westminster Hospital, wascalled to prove that the petitioner was suffering fromsyphilis. Before being sworn, he handed to the Judge aletter from the Chairman of the House Committee statingthat the Westminster Hospital had adopted the nationalscheme for dealing with venereal disease, and callingattention to the statutory regulations, one of whichenjoined secrecy. In this case, therefore, it was not aquestion of betraying the confidence of a patient, but ofinfringing an official regulation. McCardie, J., made thefollowing observations: " The doctor (of the venerealcentre) was one of those who were desirous of assistingthe scheme for treating venereal disease in every way,and for the purpose he wished loyally to maintain thesecrecy which was rightly upon him. But the witnesswould appreciate that in a Court of Justice there wereeven higher considerations than those which prevailedwith regard to the position of medical men. He wishedto say that apart from the obligations which might beimposed on medical men by the order of His Majesty'sJudges, it was desirable that there should be the mostloyal observance of the confidence which was reposed inthem by patients. He was glad to say that the history ofthe medical profession was most honourable, and it wasto be hoped that its members would always retain theconfidence placed in them."

McCardie, J., thus made it quite clear that the medical91


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man's duty to assist justice by giving evidence was para-mount. The rule was adopted in the cases of Devonshirev. Devonshire and Eve, and Needham v. Needham andBarrett in the High Court in i92i, with result that theattention of the Ministry of Health was drawn to the factthat the medical officer of a venereal diseases clinic mustgive evidence in a civil case as to the condition of apatient under his care at the clinic, thus violating theconfidence between doctor and patient and the directundertaking by the Local Government Board, the pre-decessor in title of the Ministry of Health, that all pro-ceedings at such clinics should be absolutely secret andconfidential. Legislative steps should be taken as wouldrender such an occurrence impossible in the future.

However, the Ministry of Health, with their usual CivilService excuse, a policy adopted which many deplore,could not be drawn to offer any suggestion in the matter,and it was left for individuals to raise the question inParliament.Lord Dawson placed upon the Order Paper of the House

of Lords a motion intended to raise the question of adoctor's obligation to disclose, or to keep secret, what helearned in his professional capacity when called upon toanswer in a Court of Law. The motion was withdrawn,but his remarks in another place are both interesting andinstructive. " Various privileges have been obtained byand for the legal profession for smoothing its procedureand securing its place, for which he did not blame thelawyers for so doing, and was inclined to wish that themedical profession had been similarly insistent. A lawyerdid not like any obstacle put in his path. The questionfor medical men was whether they were going to standout for a form of privilege over and above that accordedto a member of the public. He maintained that theyshould demand a measure of special privilege. Havingobtained the concession of privilege he was quite willingthat the limits and application of the privilege should bediscussed between medical and legal gentlemen. Thepriests also had privilege. The doctor was even moreconcerned with the intimacies of human life and wasreally nearer to the heart of things than a minister of theChurch. How often had they seen a patient lying insickness with something on his mind and quite unable toget better until he had confessed it. The confession was

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one which he made in a moment of weakness and wouldnot have made had he been in health. He pleaded for astrong inequivocal statement that the profession was infavour of special privilege being granted to medical menin Courts of Law."Lord Birkenhead, L.C., in his article, " Should a Doctor

Tell?" from Vol. I. of " Points of View," in discussing themotion of Lord Dawson, sums up the legal aspect, asfollows : " The whole tendency of our law for many yearshas been in the direction of opening the mouths of thosewho can assist the course of justice and not closing them.The obligation of silence with regard to professionalcommunications to lawyers has of late years become moreextensive. It has grown as circumstances required underthe hand of the judiciary who can be trusted to curb anyabuse of it, but it is not such a privilege (medical) as isnow claimed. Now to establish a class who may at willassist or obstruct the Judges in their work would be aretrograde step, not justified by any argument which hasbeen brought forward. These are the opinions, not onlyof myself, speaking with all the responsibility whichaccrues to me as Lord Chancellor, but of most men ofexperience in every branch of law. I have no doubt thatopinion is shared by the great majority, perhaps allJudges of the High Court. It is shared by those mostfitted to give an opinion at the Bar. I am convinced thatit is consonant with the whole scheme of our judicialhistory and that it rests upon a solid basis of equity andcommon sense."Towards the end of I928, Sir Ernest Graham Little

introduced a Bill in the House of Commons which wouldgive to medical men a protection of professional confidence,very moderate compared with that now enjoyed bylawyers and expressly not applicable to shielding a felony.The Bill received its first reading without division, butwas met with opposition as to its further progress fromthe lawyers of both Houses; consequently it lapsed withthe Session. He was further discouraged from intro-ducing the measure again on the grounds that the matterwas considered too important to be dealt with other thanas a Government measure.

Lord Atkin, a Lord of Appeal, later commenting on themeasure, stated: " As the law stood at the present, adoctor was not privileged to maintain his patient's con-

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fidence. The claims of justice on one side had to beweighed against the claims of public health on the other.He was of the opinion that in some cases, notably thoseconnected with venereal disease, the claims of publichealth far outweighed those of justice. The Courtsallowed certain facts to be withheld, for instance dis-closure between solicitor and client, and those whichconcerned the State were withheld without any referenceto the administration of justice. He failed to see why itmight not be just of as much interest to withhold somefacts, for instance as those relating to armaments. Herecognised the extreme public importance of mutualunderstanding between lawyers and doctors and fami-liarity with each other's problems."On October Ist, I934, it was judically held at the

Mayor's and City of London Court, that a tuberculosisofficer need not voluntarily produce his dispensaryrecords. The officer made a protest, both on the generalground that the evidence required of him was obtainedby him in confidence as a medical practitioner, and underspecial ground of a statutory obligation to secrecy. ThePublic Health (Tuberculosis) Regulations, I930, Articlelo, directs that: " Every notification and every docu-ment relating to a person notified under these Regulationsshall be regarded by the Medical Officer of Health and byevery person who has access thereto as confidential."The Public Health Act, I896, Section i, Sub-section 3, asthe witness reminded the Court, refusal to obey theRegulations would expose him to a penalty of fioo. TheJudge upheld the protest, and the tuberculosis officer wasabsolved from giving evidence. The Mayor's and City ofLondon Court is classified as an inferior Court of Record,and therefore judgments emanating from this source donot influence the main issue, but the case illustrated thatjudicial opinion was impressed by the argument. It ishardly necessary to add that regulations made under anAct of Parliament have just as much force as the Actitself, unless a competent Court holds tllat they are ultravires. Parliament has enjoined the principle of secrecyin a wide variety of circumstance such as income tax,census information, telegrams and the Adopted Children'sRegister, though in these special cases the protection isnot absolute and official disclosure (as in criminal pro-ceedings for fraud) are not unknown. Such analogies,

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however, lack the all-important element of confidentialrelationship which exists between patient and doctor.

In recent months the question of professional confidencein relation to police investigation of crime has come beforeprivate practitioners. It arose last July, when the ChiefConstable of Brighton was making inquiries in theBrighton Trunk Mystery No. i. The opinion of somemembers of the medical profession was expressed asfollows : " The request by the police to a member of themedical profession to give the names and addresses of anypatients who had consulted the practitioner for symptomsparticularised by the police ought to be declined on theground that to accede to such a request would be a grossbreach of professional confidence and might well involvethe practitioner in an action for damages by the patientor patients concerned." The view was not accepted bythe profession, the position finally arrived at was one ofcompromise: " That the disclosure should be a matterfor the conscience of the individual doctor, as the medicalpractitioner should not forget that he was also a citizenand should do what he could to help the authorities todiscover the author of a brutal crime."

Venereal disease, with the exception of ophthalmianeonatorum, is not a notifiable disease under the PublicHealth (Notification of Infectious Disease) Regulations,I9I8. This is an attempt by the legislature to preservethe secrecy with regard to persons treated under thescheme by limiting official recognition of the disease tothe bare essentials required. The State realises that thesuccess of a V.D. scheme depends largely upon theprinciple that the utmost secrecy must be maintained toensure the attendance of patients at the earliest oppor-tunity when signs of disease appear and treating them onthose lines until they are rendered permanently non-infective. The Central Authority has always taken greatpains in the administration of the scheme to make thelikely sufferers fully aware of these conditions of treat-ment in an unostentatious manner. The fear of dis-covery has deterred many patients from seeking adviceat a public clinic, causing them to resort to chemists,quacks and practitioners not skilled in the treatment ofthis disease, and deliberately delay attendance at thecentre until some complication has frightened them ortheir funds have run low.

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However, these measures are to some extent negativedor impaired by the knowledge of the general public of thefact that the rule of absolute disclosure of evidence bymedical men operates in the Courts if requested by theJudge. This has led to vigorous and often undignifiedprotests against giving evidence in these matters bymedical officers of V.D. clinics which are unfortunate asthey give rise to widespread publicity in the lay Press-with its pernicious consequences. The problem must be-tackled from a different standpoint, that is to say, thatthe proper preservation of professional secrecy necessitates-a measure of special consideration being recognised formedical witnesses in Courts of Law above and beyond*what is accorded to ordinary witnesses. Perhaps thismight be a useful item of agenda for the Statute LawRevision Committee to consider.

Before leaving the Venereal Diseases Regulations Iwish to point out that there should be free and unfetteredcommunication between practitioners who have a directand common interest in a case of venereal disease. Thisinformation should be given in confidence and a noteshould be inserted to that effect, such as is printed on themodel B.M.A. form for consultative opinion, and on thereports received from the leading hospitals. Such with-holding of necessary information is not in the best interestof the patient and not an act of good faith.

I will now pass on to the reliability and necessity ofmedical evidence in relation to venereal disease. It hasbeen stated that there is a misuse of the services of theV.D. medical officers at clinics to compel them to come upto furnish evidence for divorce. Some patients make useof their attendance at the centre as proof of their adultery.It is practically impossible to obtain an ocular demon-stration of the act of adultery, so litigants make use ofother available evidence which will appear unassailable.Therefore, evidence of venereal disease has come to beregarded as in many instances a proof of adultery without-inquiring into the merits of the case. I have no doubtthat this Society is in a position to give numerousexamples and illustrations to show that medical evidenceon the question of venereal disease can be both mis-leading and dangerous. There is a suggestion that a-medical assessor might be available to assist the Courtin valuing the testimony in order to prevent a mis-

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carriage of justice. The Bar is willing to admit that theability to cross-examine a professional expert witnesswell is rare. However, it is just as well to consider theopinion, none too flattering of the Bar, with reference toexpert testimony from one of the standard books on"Evidence."

" Some of the Courts have very plainly intimated thatthis class of witness is very unreliable. A professionalexpert witness has been defined ' to be a man who is paida retainer to make a sworn argument.' Experts as aclass are shrewd and cunning, and are usually selected onaccount of their eminence in their professions or skill intheir avocations, and they are presumed to speakguardedly and carefully upon topics with which they havethe greatest familiarity, for often they stake their reputa-tions upon the result of the.trial in which they are calledto testify." It often happens that the so-called experts are mere

shams and pretenders and utterly unqualified to expressan opinion upon the subject under investigation. But, ifthe testimony of the expert witness is not to be shakenit is better to examine him on a few unimportant mattersand then let him go." There is some measure of truth inthis indictment which could even be enlarged upon.The diagnosis of syphilis frequently relies upon Wasser-

mann and other serological reactions as well as the findingof the Spirocha ta pallida in lesions, and that of gonorrhoeaupon the evidence of the gonococcus in discharges.Experienced pathologists will admit that there may bealways an element of doubt whether these tests aresufficiently accurate prima jacie to be utilised as evidencein a Court of Law. Particularly in divorce proceedingsthe moral effect of such a charge, if proved, will bedevastating to the person involved. Specimens areliable in a fractional percentage of cases to be confusedand there is no fool-proof scheme yet devised to obviatethis error. The labelling and identifying of specimens inthe best regulated laboratories has been known to breakdown.The standard of reading in laboratories differs sometimes

in marked degree, which was proved by the report givenat the Serum Conferences at Copenhagen in I923 andI928. As a result, in the leading clinics and practices, allsera reactions are performed at the first attendance,

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irrespective of the report issued from the previous source.Such a practice very often saves an erroneous diagnosis.A pathologist is usually not subpoenaed to give evidence

of the results of the test, and consequently the clinicianis virtually giving hearsay evidence, which is inadmissible.The collection of specimens is not performed with theextreme care with which those are taken for an ordinarypolice court prosecution for adultery of food and drugs,yet the results accepted quite formally are capable ofgiving rise to grave miscarriages of justice.

It will be observed from this sketchy outline there isroom for much reversion of procedure with regard to thecharacter of medical evidence on legal and ethical grounds.To accomplish this, the sooner the members of the legal

and medical professions meet on a common ground andsettle down to a reasonable unbiassed discussion, eachadding without prejudice his quota to the common stock,the better it will be for the reputation of British justice.

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Documents

THE MEDICO-LEGAL ASPECTS VENEREAL DISEASE*