§ Order for Second Reading read.
§ 1.40 p.m.
§ Sir Ernest Graham-Little
I beg to move, "That the Bill be now read a Second time."
This is a Bill to provide that certain communications between medical practitioners and their patients shall be privileged from disclosure. The protection which I ask for in this Bill has been rendered more necessary by certain circumstances which have arisen in the past 20 years, and the difficulty really arose or became accentuated with the proceedings of the Royal Commission on Venereal Disease which reported in 1916. I shall crave the indulgence of the House if I read a certain portion of what I have to say, because it deals with a technical 1983 subject and textual accuracy is desirable. The Royal Commission of 1916 on venereal disease demonstrated an incidence of that disease in our country so alarming that it became obvious that very energetic measures were necessary to combat it. It was a very influential Commission, and its report is one of the best reports which has ever been written on the subject of venereal disease. They said that energetic measures for combating it were clearly called for. The Local Government Board, which at that time discharged the functions of the present Ministry of Health, took up that recommendation and issued a very important series of Regulations and a Memorandum which was published in 1916, and that Memorandum remains the operative measure in all hospitals and clinics in this country. They were excellent measures, they were carried out very faithfully by hospitals, and the measure of success that has followed has been very remarkable. These Regulations were issued in 1916, and I should like to read what the Memorandum says as regards the reasons why they were issued. It says:The Commission find that the effects of venereal disease upon the individual and upon the race are grave and far reaching, involving a heavy loss to the community in actual and potential population as well as in money. They report that the medical evidence given before them establishes the fact that by early and efficient treatment venereal diseases could be brought under control and reduced within narrow limits, but that at present"—That is, in 1916—treatment is in most cases unduly deferred and the best modern methods of diagnosis and treatment are not within the reach of the population generally. The problem, therefore, is to provide extended facilities, and when these are available to induce persons affected with these diseases to make full use of the facilities at the earliest possible moment. The Commission accordingly recommend that arrangements should be made for providing free for the whole community adequate laboratory facilities of diagnosis, combined with the provision of adequate and skilled free treatment for all persons affected with venereal disease.I wish to draw the attention of the House to the fact that the Commission stressed the importance of secrecy in these arrangements. They said:It is important that under no circumstances must the names and addresses of patients be divulged by the medical officers of such institution.1984 And it was further declared in a Regulation issued on the authority of the Local Government Board and confirmed later by the Ministry of Health, as set out in Article 2 of the Regulations, that:all information obtained in regard to any person treated under a scheme approved in pursuit of the regulations must be regarded as confidential, and it is essential for the success of any measures to deal with venereal diseases that patients should be fully assured as to the secrecy of the arrangements.Perhaps I may give the House an idea of what is done at the clinics which are run under that system, and I will take as an example the great hospital with which I am connected. The arrangement there is that there is a special officer detailed for the reception of cases under these rules. He is in charge of what is called the secret register, which contains the names and addresses of all those patients. The patient is seen by this officer and is told that his name and address will be entered in that book for the purposes of communication with him, but not to be revealed, that the nature of his disease will be entirely and absolutely secret, and that in no circumstances whatsoever will it be divulged to any other person without his written consent. No disclosure is made, either to employers, parents, relatives or anyone else. No certificate is given as to the diagnosis. If he wishes for further information he is written to, and the envelopes are sealed and then addressed personally to himself, so that there is no communication with any third party. If anything of a private nature was communicated to the doctor who was in charge of the case, the communication was treated as confidential and absolutely secret.
To give some idea of the volume of treatment and the number of patients who have benefited from that system I would give one figure from the last report of the London County Council for the hospitals in London coming under that system. There were over 1,050,000 attendances in one year. If that figure is multiplied by the number of clinics which are distributed throughout the country, the number of cases treated runs into an astronomical figure, and that is the position which is threatened by the present law on the subject.
Doctors and patients alike regarded the rules as being a real protection, until 1985 a case occurred in which a doctor from one of the clinics was called upon by Mr. Justice Horridge to give to a court information which he had obtained during the treatment of a patient. The doctor objected to giving that evidence, but he was told by the judge that he had no privilege and was obliged to reveal confidences made to him by the patient even under those personal assurances. The incident aroused the interest of the medical profession, and the British Medical Association sent a deputation to the Minister of Health at the time urging him to see that his own Regulations were carried out and that legislation was introduced to arrange that such an incident could not happen again. The Minister of the day made the usual promises, but nothing was done.
Another case, more disturbing, occurred in 1927, and as I am basing my plea for the Bill largely upon the circumstances of that case and the comments which were made upon it, I beg to be allowed to give the details. The case related to the V.D. department of one of the great hospitals in Birmingham and was brought before Mr. Justice McCardie. The patient had been attending the clinic, and the pathologist who had made the blood tests in the case was cited and subpoenaed. He pointed out that his own part in the case was a very minor one and that there were other officers who had taken a more important part. He refused to give evidence on his own account or to produce documents, although ordered to do so. Mr. Justice McCardie gave a ruling that, unless the doctor gave evidence forthwith and produced the documents asked for, he would summon the whole of the hospital and all the officers concerned, and all the statements and documents in the case would be produced in court. The effect of that upon a great hospital was so serious that the doctor gave way and gave his evidence under protest. The incident was very striking and produced a great disturbance of public opinion.
May I now give the ruling as it was given that so greatly disturbed the medical profession? It is, of course, in consonance with the law of the country, but it is our view that the law requires alteration. Here is the ruling, as it was reported:The medical profession normally was under the duty of keeping inviolate the secret knowledge that they might gain from treat- 1986 ing their patients, and, indeed, might become liable to a civil action for damages if. without lawful excuse the duty of confidence was broken; but in a court of law a doctor had no privilege similar to that held by a solicitor or other legal adviser, and he was not privileged from compulsory disclosures of communications, however confidential. A further point arose in the present case as to whether these doctors were in a specially privileged position owing to the fact that they were acting in a department under the control of the Ministry of Health through the local health committee. In his view there was nothing in the regulations, or in any regulation he had heard of, which saved a doctor from the obligation of disclosing, if ordered to do so by the court, all the information he might have of the facts he had gained while acting under regulations.The doctor was told that in the event of refusal he himself would suffer imprisonment. In the following week, 23rd July, the "Lancet" made this comment:New arrangements officially organised have involved the treatment of venereal disease on an unprecedented scale. Simultaneously the law has made new demands for evidence. Recent years have witnessed a huge increase in divorce petitions, partly because of the social unsettlement of the war period, partly because divorce has been made easier for the wife, and partly, indeed mainly, because of the remarkable development of facilities for poor petitioners."—This was very largely a scheme for poor patients—To relieve the Law Courts in London matrimonial causes have been made triable locally at assizes with greater local publicity. In so far as this class of litigation gives occasions for medical evidence of venereal disease the occasions have been lately multiplied. Meanwhile another change in the law has enabled a married woman to apply for a separation order on the ground that her husband has insisted on marital relations while knowing himself to be suffering from venereal disease.It pointed out:Here is fresh occasion for inviting a doctor into the witness box and here it is not a case of the patient waiving his or her right to secrecy but of a doctor giving evidence against the legal interests of his patient.The "Lancet" then went on to say:The second point which is clear is that the Ministry of Health cannot leave matters where they stand. Official utterances proclaim that it is peculiarly necessary to maintain strict professional confidence if venereal disease is to be combated; official regulations exact that secrecy is a legal obligation. All this is meaningless if Judges can insist upon full disclosures. Hitherto many have thought it possible to comprise by way of protest on the part of the medical witness. But if protest is to be treated as mere formality, if a hospital doctor is to be treated as though he were the secretary of a limited company, and is to be compelled to produce confidential docu- 1987 ments belonging to other practitioners merely because these documents are within the hospital walls, the public will soon learn to distrust the alleged secrecy which the Ministry of Health professes to ensure. Will the Ministry make it clear by regulation or if necessary by Act of Parliament that the promises of non-disclosure is genuine and inviolable. If not it would be only fair to the patient to qualify the promise and to inform him, when he comes for treatment, that not only can secrecy not be insured but that in the language used to the suspected criminal, anything he may say will be taken down and used in evidence against him.That is the position as it appears to the medical profession. A parliamentary question on the same subject was asked by Dr. Vernon Davies in the same session, and the Minister of Health replied that he would bear the point in mind and give it very careful consideration. The "British Medical Journal" in the following week reviewed the existing position of the doctor under the law and pointed out other instances in which secrecy was important, for example, the notification of stillbirths, a case in which a doctor was called up to reveal the cause of stillbirth and gave evidence under protest. The Journal further pointed out that a doctor could be ordered to produce in court confidential entries on history cards of patients under the National Insurance Act, and it repeated the petition it had made six years earlier for special legislation, which it now suggested should deal not only with venereal clinics but other regulations under which the same or similar questions arise.
In 1927 I introduced a Bill under the Ten Minutes' Rule, and on the advice of legal friends in Parliament at the time I restricted the operation of that Bill to venereal diseases. The terms of the present Bill are very much the same without that restriction. Those of my legal friends in the House whom I consulted at that time were very helpful, and no fewer than five of them were good enough to allow their names to appear on the back of the Bill, namely, Mr. Greaves-Lord, Mr. Boyd-Merriman, Mr. Storry Deans, Mr. Goodman Roberts, and Mr. Hopkin Morris. The Bill was commented upon widely in the Press, and I should like to read one or two of the criticisms upon it, to show the state of public opinion in this country at that time. On 14th November, 1927, I addressed a letter to the "Times" in 1988 which I stressed the difficulties of the subject, and pointed out thatThe position by which a doctor may be ordered by a judge to betray the trust of his patient after a solemn promise of secrecy, endorsed by all the authority of a government department, is naturally and properly intolerable by the medical profession, which for some 3,000 years has held professional communications from patients to be the most inviolable of confidences.The "Times" in a leader on the same day, stressed the absurditythat a Department of Government should describe professional secrecy as 'essential for the success of any measures designed to deal with venereal diseases,' while the Government as a whole leave unamended laws which compel the breach of professional secrecy. At the present moment the arrangements so carefully made to safeguard the confidences of patients who present themselves for treatment at the clinics afford no protection whatever against the ruling of a judge. It is easy to understand the feelings of medical men who are compelled to carry on their work in such circumstances, but public action ought to be based on grounds more substantial than the views of any body or class of citizens. The question for the public is whether or not secrecy is really ' essential for the success of any measures designed to deal with venereal diseases.' If secrecy be essential for the success of these measures, then the further question arises whether deliverance from one of the most terrible of human afflictions is or is not worth the sacrifice in certain cases of the evidence of doctors who are engaged in treating it. The communications of clients to their solicitors are privileged, on the ground that justice could not otherwise he done. The cause of health is not, perhaps, inferior to that of justice. If venereal diseases are not treated and cured, they remain a menace to the whole community. Those reasons, therefore, which support the legal may properly be cited in support of the medical privilege.I was given leave to introduce that Bill, and, while it was under consideration, some legal comments were made which may perhaps have more weight than medical opinion. On 18th January, 1928, Mr. Justice (now Lord) Atkin, gave an address in which he commented on my Bill, observing that:As the law stood at present a doctor was not privileged to maintain his patients' confidence. The claims of justice on one side had to be weighed against the claims of public health on the other. His Lordship himself was of the opinion that in some cases, notably those connected with venereal disease, the claims of public health far outweighed those of justice. He would be very glad to see some changes in the law, even that very limited alteration proposed in Dr. Graham-Little's Bill. The Courts allowed certain facts to be withheld, for instance these disclosed to a legal adviser were withheld in the interests of justice, and those which con- 1989 cerned the State were withheld without any reference to the administration of justice. He failed to see why it might not he just as much to the interest of the State to withhold some facts dealing with the health of the individual as to withhold facts relating to armaments. He recognised the extreme public importance of mutual understanding between lawyers and doctors and familiarity with each others' problems.At the same time I received a letter from Sir Douglas Hogg, now Lord Hailsham, in which, while pointing out the difficulty of differentiating between venereal and other diseases, as was proposed in the Bill, he said that he welcomed the Bill as an opportunity of ventilating the subject. Again, the "Law Journal" on 19th September said that it would welcome the solution of a difficult problem, which would relieve the medical profession without interfering with the due administration of justice.
I had no opportunity of reintroducing that Bill, but I obtained a place in the Ballot at the end of last year, and am using that opportunity now to reintroduce a Bill which is a little different, because it is not now confined to venereal disease. I will state my reasons for making it wider. The Bill, without the restriction in question, has been "vetted", if I may use that term, by one of our most eminent judges, and he has assured me that in his opinion its Clauses are adequate to make its abuse highly improbable. There is another consideration which seems to me to be in favour of the wider Measure. The whole purport of our public health administration is to secure the early treatment of disease and sufficient treatment—treatment which is likely to succeed in giving greater protection to the individual and to the public. One instance to which much attention has been drawn quite lately is that of the very difficult problem of the reduction of maternal mortality. An admirable report has been issued by a Scottish Commission on that subject, which stresses the vital importance of ante-natal treatment, and I think there can be no question that any doctor in medical practice will endorse that opinion. It may be pointed out that the highest incidence of maternal mortality undoubtedly occurs in the case of the young unmarried mother. The young unmarried mother is a poor frightened creature, whose circumstances at the moment are very sad, and, if she is not confident that the doctor 1990 who treats her can be relied upon to say nothing about her case, the whole scheme for early consultation may become very seriously impaired. The principle embodied in this Bill has also a very wide application to cases under the National Health Insurance Act.
It may be said that from the point of view of the administration of justice the wider application suggested in this Bill is not desirable, but surely we can get some impression of the probabilities of the matter by considering the evidence of facts which are well known. It so happens that in 1935 an International Congress was held at Budapest, which was attended by over 1,000 delegates. I was its vice-president, and was the chairman of a special committee appointed by the Congress to deal with the problem of medical practice as affecting the general public. Taking advantage of that opportunity I put down, as one of the measures to be discussed, what degree of protection was accorded to professional secrets in the countries abroad which were there represented, and there were representatives at that conference of every civilised country of Europe and the United States. We had an extremely interesting discussion and it became perfectly obvious that the protection afforded throughout Europe was incomparably greater than the protection accorded in our courts.
May I give some of the details? The "professional secret" is absolute in Portugal, Holland, Bulgaria and Switzerland. In Switzerland a curious and interesting development was reported. The medical representative of Switzerland said that the practice had grown in his country of dealing with the difficulty of giving medical certificates when the certificate might disclose confidential facts with regard to the death of the patient. He told us that the practice had grown, and was received with approval, that two certificates should be issued, one to the relations which did not reveal the actual cause of death, and a certificate for the medical officer of health which was filed, and which conveyed this information. That system of double certification was adopted really to avoid what is an absolutely inescapable obligation. In Italy, Hungary, Germany, Norway and France the revealing of the professional secret is a criminal offence punishable by imprisonment or a very heavy fine. I have not been able to ascertain what is the 1991 practice in the Oversea Dominions, but I am told that it varies and the professional secret is respected in some and not in others. At the end of the discussion of the subject at the conference the following resolution was unanimously passed:That the Congress is of opinion that the confidences of the patient to his doctor should be legally protected except in cases where professional secrecy would conceal crime or shield the criminal from proper punishment.I should like to stress the procedure in France; it is very interesting. The legal profession in France, I suppose, enjoys as high a status as in any country in the world. It is entirely favourable to the protection given to the medical profession and it happens that there was a very important meeting called in 1927 of the Academy of Medicine in Paris, the most important medical society in France, to discuss the opinion of the profession at the moment on the existing rules regarding professional secrecy. Professional secrecy has been an absolute obligation in France since a decision was taken in 1885, and the Academy of Medicine was called together to see if there had been any change of opinion in the profession as to the relaxation or not of the rules. Here is what was reported:The Commission recommended the Academy to record the most categorical reaffirmation and obligation of professional secrecy which has been the law of France for 40 years following upon a decree of the Court of Cassation in December, 1885. The Commission set up by the Academy of Medicine declared that law and jurisprudence are in accord in France in imposing on the doctor the most absolute reticence whether he be urged by private persons or by private or public bodies or by a court of justice to reveal the nature of the disorders which he may have observed in his patients. Article 378 of the Penal Code of France upon which rests the legal protection of the doctor also provides for his punishment in the case of his revealing the professional secret.The report points out that secrecy is not in the interests of doctors at all. It is in the interests of the patient. Here is what the Commission says:The report points out that the professional secret is imposed not for the convenience of the doctor but in the interests of the patients, and for the maintenance of public order and the doctor cannot be absolved from his obligation even by the death of his patient.Wide experience abroad makes it improbable, to say the least, that we shall have any serious disorders resulting from the extension of the practice in this 1992 country which has been so successful abroad. At present the only alternative when a doctor refuses to give evidence in court is to base his refusal on the citation of medical privilege and to submit to imprisonment if he is forced to accept that course. That is the course recommended now to its members by the great body of professional opinion in this country. In discussing this question a pillar of the Anglican Church said to me lately, "If I were called in court and told to reveal a confidence obtained sub sigillo I should refuse to obey without any hesitation. If I were ordered to go to prison the whole thing would explode at once, because no one would send me there." That is the way in which the law might be altered, but it is more seemly and decent to make the alteration by quiet, orderly, Parliamentary procedure than in response to an explosion of public opinion which may or may not occur, but which is not the best way to reform abuse.
What are the arguments that the lawyers use? What appears to me to be the principal argument is that the statement that if a client were not protected by law from disclosure of information he gives to his solicitor under the seal of legal confidence, he would not consult his solicitor. That is a very deplorable result, of course, but the same argument applies to medical confidence with even greater force. The medical confidence is more painful to make and more serious to interfere with than any confidence that he would make to a solicitor. Again, I would ask my legal friends to consider whether it is not really a fact that this attendance at clinics under the regulation I have quoted becomes a very binding contract between the officers of the hospital and the patient. It is so regarded by the officers of the hospital. Is not that a very serious contract and ought a contract of such sanctity and authority to be overruled by considerations other than those of the supreme importance of public policy? Where such cases are concerned I submit that my Bill provides ample safeguard.
I have stressed the importance of the professional secret in many spheres of medicine. I have been urged by legal friends again that if I restricted the operation of the Bill to venereal diseases they would have less objection to it, but 1993 that restriction is very difficult to justify. If the Bill were restricted to venereal diseases alone the imputation would at once arise when that protection was pleaded in a court of law that the person pleading was, in fact, subject to venereal disease. That makes it a very serious drawback. But there are other cases and an increasing number, not venereal, in which it is equally urgent to get that protection. I say again, that if it is not possible to induce the House to pass the Bill with a wide application, I shall be perfectly prepared in Committee to restrict the operation of the Bill to venereal cases. That course has been suggested to me by a very friendly critic in the House, and if it will facilitate the Bill's progress to Committee, I agree to the suggestion.
§ 2.16 p.m.
§ Mr. Lovat-Fraser
I beg to second the Motion.
Perhaps it would be well if one stated exactly what the law is at present. The law as laid down in Lord Halsbury's "Laws of England," an entirely reliable book, is this:The relationship between a medical practitioner and his patient does not excuse the former, whatever medical etiquette may require, from the obligation, if called upon, to give evidence in a court of law. He is in the same position as any other person who is not specially privileged in this respect by the law. He may be summoned to give evidence in civil or criminal cases, and is liable to imprisonment if he neglects to attend. He may be asked to disclose on oath information which came to him through his professional relationship with a patient; and, if the question is not inadmissible on other grounds, he may be committed to prison if he refuses to answer.The law is very decisive and definite. That has been the law for a long time. I tried to find out the earliest occasion on which this question of medical privilege was raised in court of law. The oldest case I could get was a very interesting one, the case of the Duchess of Kingston, who was tried for bigamy before the House of Lords in 1776. A certain surgeon was called upon to give evidence in that case and the record says that he demurred to giving evidence on matters which he had learned professionally in the case. Lord Mansfield, who was probably the greatest judge who ever administered justice in this country, said: 1994If a surgeon was voluntarily to reveal these secrets, to be sure he would be guilty of a breach of honour and of great indiscretion, but to give that information in a court of justice, which by the law of the land he is bound to do, will never be imputed to him as any indiscretion whatever.What we want to do is to alter the law so as to enable doctors to refuse to reveal in courts of law secrets which they have learned in their profession. There are already a good many cases in which people coming before courts of law have refused to give evidence. Let me give one or two instances. Husbands and wives in cases of communications during marriage are entitled absolutely to refuse to give any information. Lawyers and clients in cases of communication made for the purpose of obtaining legal advice—there again secrets need not be revealed. Public officers privileged from disclosing facts, the disclosure of which they declare to be not in the public interest—they can refuse to reveal secrets. A witness may refuse to answer a question which may incriminate him, a right which is not infrequently exercised. Attempts have been made to add to the classes that are exempt. There are, for instance, priests of the Catholic and Roman Catholic churches, and ministers. At least in most cases judges have been sympathetic with their desire not to reveal secrets acquired in a professional capacity, but the law is quite definite that a clergyman is not exempt from giving evidence. There have been judges who have expressed sympathy with the desire to refuse to give evidence where the revelation of some professional secret comes in. Mr. Justice Hawkins, in a case in 1896, said:I can quite understand a case, especially in a civil case, where a doctor is quite justified in refusing to divulge questions of professional secrecy. The Judge might in some cases refuse to commit a medical man for contempt in refusing to reveal confidences. Every case must be governed by particular circumstances, and the ruling of the Judge will be the test.It would be very foolish indeed, after the most exhaustive and admirable evidence in support of the Bill given by the Proposer of the Second Reading, for a layman to deal with the matter at length. I shall not do so. I content myself with seconding the Motion. Secrets sometimes leak out in spite of the desire to keep them. I remember the story of a French cleric, I think he was a Cardinal, who 1995 was entertaining some of his friends on a certain occasion. In the course of the conversation he said it was a remarkable thing that when he was a young priest the first man who confessed to him confessed to have committed a cruel murder. Just at that moment the door opened, and in walked a distinguished French nobleman, who, as he went up to the cardinal said, "Ah, Cardinal, I can never forget that I was your first patient." Coincidences like that must be very infrequent.
§ 2.23 p.m.
§ Mr. Dingle Foot
I beg to move, to leave out the word "now," and at the end of the Question, to add "upon this day six months."
Those of us who have looked at this Bill find ourselves in a position which is not altogether unusual on a Friday when Private Members' Bills are introduced. We can, of course, sympathise with the objects expressed by the Mover and Seconder of the Motion, but it does seem to me and to some of my friends who have examined the Bill that those who are its sponsors have entirely failed to appreciate what the consequences would be if the Bill were passed into law. The hon. Gentleman, who made a very interesting speech in introducing the Bill, told us about tributes paid to another Bill and an entirely different Bill which he introduced in 1927.
§ Notice taken that 40 Members were not present; House counted; and, 40 Members being present—
§ Mr. Foot
As I was saying, we are not dealing now with the Bill which the hon. Gentleman introduced in 1927, but with an entirely different Measure, to which different considerations apply. If we were confined here to the question of venereal disease, to which the hon. Gentleman devoted almost the whole of his speech, there might be something to be said for a proposal of this kind, but, in fact, we are concerned with proposals which go far outside that particular question. The Bill states in very general terms that any information obtained by a duly registered medical practitioner in the course of treatment of any patient shall be regarded as confidential, and shall be privileged from disclosure if it has been obtained for the purpose of a cure. "Information" is a 1996 very wide term indeed. Under this Bill a doctor must not give evidence of anything that he has discovered in the course of his treatment for the purpose of a cure, except in respect of two very limited categories dealing with fraud and crime. The first and crucial point of the Bill, which neither the Mover nor the Seconder has attempted to deal with at all, is, whose privilege is it? Who is it that can claim the privilege? We were told that the Bill was designed for the protection of the patient, but it does not say that it is the privilege of the patient, and that he can prevent a doctor giving evidence of something which he does not want to disclose. It appears to me—I shall, no doubt, be corrected by a greater authority if I am wrong—that the privilege might be held to attach not to the patient, but to the doctor. If a man wanted to call his own doctor to give evidence on his behalf, the doctor might be able to refuse, or might even be prevented from giving evidence under the terms of the Bill.
I will suggest to hon. Members one or two examples as to how the Bill would work out in practice, if the interpretation which I have upon it is correct. Take the ordinary motor car accident. A man is knocked down by a motor car in the street. He is taken to a hospital and there treated by a doctor. Later on, he wants to bring an action for negligence, in order to recover damages against the motorist or the insurance company. The first thing he wants is that the doctor who treated him should give evidence as to the injuries he received. If I am right about the interpretation of the Bill, the result would be that he could not require his doctor to give evidence on his behalf in the proceedings. You might have in that case this curious anomaly. When he started the action the insurance company would, of course, send their own doctor to examine him, but that examination would not be for the purpose of treatment or the purpose of cure and, therefore, the insurance company's doctor could give evidence, but the plaintiff would not be able to rely upon his own doctor, even to prove the injuries he received. Take another perfectly simple case which has occurred again and again—the case of food poisoning. Somebody has brought some tinned or other form of food and has suffered some ill effects after eating, it, becoming violently ill. He brings an action for breach of 1997 warranty against the person who sold the food. It is essential in such a case to be able to call the doctor who has treated the patient. He has to say that this is a case of food poisoning and that it is what might be expected to follow from eating the particular food in question. Here again, under this Bill, that medical evidence could not he given, and the plaintiff would be denied the remedy which he has at present. One could go on reciting a whole category of cases, workmen's compensation, breach of statutory duty, all forms of actions in which the evidence of the medical man is required, and in all probability it would be impossible to obtain it if this Bill became law.
I want to put another consideration to the House. This Bill would make it, if not quite impossible, exceedingly difficult at any time in the future for anyone to bring an action for negligence against a doctor. It is a well-recognised doctrine and has been for many years in our law that, if a man holds himself out to practice a skilled profession whether it be the profession of law or of medicine or any other skilled profession, it implies an undertaking that he will use reasonable care and skill in serving those who consult him. Nobody will object to that doctrine. It is essential for the protection of the public. What will be the position under this Bill, if it becomes law? I know that actions of negligence against doctors are, happily, rare, but they do happen, and even the hon. Gentleman who proposed the Motion for the Second Reading of the Bill would not suggest that it never occurs that a doctor is negligent in treating a patient. If a doctor is negligent, everyone must appreciate that the consequences to the patient may be very serious indeed. A man goes to a doctor, and, let us suppose, he mishandles the treatment. After that, the man leaves his doctor and goes to a second doctor in order to have the mischief put right and a cure affected. He then wishes to bring an action for negligence against the first doctor. If I am right in the interpretation I put upon the words in this Bill, he would not be able to call the second doctor. Anyone who has had anything to do with an action for negligence against a doctor knows how extremely difficult it is at the present time, even if you have 1998 a very strong case indeed, to get one doctor to come and give evidence against another.
§ Sir J. Withers
Will the hon. Gentleman explain why he could not call the second doctor? He would have been called in for the purpose of a cure.
§ Mr. Foot
Precisely for that reason that he would be debarred from giving evidence under this Bill. There are two possible interpretations under the Bill. The first is, that the doctor would be prohibited from giving evidence at all, and the other, that the doctor could, in any case, refuse to give evidence. Either might happen under this Bill. The applicant in that case, who might have suffered considerable injury from the un-skilful treatment he received, and might have been put, possibly, to great financial loss because he had been incapacitated for some considerable time, would not be able to rely upon the one witness who would be entirely essential to his case.
Take another example. They are not fanciful examples. Although I am not quoting actual cases, these are things which do arise from time to time. Let us suppose that a sick man goes to a doctor and the doctor makes a wrong diagnosis. Such things have been known although, happily, they are rare. The man afterwards dies and his widow wishes to bring proceedings against the doctor for negligence. Her case is that the doctor either knew or should have known what was actually wrong with the man. She discovers that a short time before his death her husband was X-rayed and that a radiologist's report was sent to the doctor, although it was not communicated to the patient. That is a kind of thing that does sometimes arise. The widow brings her action and, obviously, it is of the greatest importance to her, if she is to substantiate her case, that she should be able to see the radiologist's report, but, if I am right in my interpretation of this Bill, because it would be information obtained by the doctor in the course of treatment, and presumably for the purpose of a cure, that communication between the radiologist and the doctor would be privileged and she would not be able to use it.
§ Sir J. Withers
If it was made clear that it was the privilege of the patient, then the hon. Member's argument falls to the ground.
§ Mr. Foot
If it were made clear. That is what I am complaining of. It is not made clear in the Bill. I hope that I have said enough to show that as the Bill stands the consequences would be simply appalling. The reasons advanced by the hon. Member who moved the Second Reading of the Bill were connected chiefly with venereal disease. I can appreciate the force of the argument that in a case of that sort the patient does expect that the information which the doctor acquires shall be confidential and shall not be disclosed to anybody. If the patient thought that disclosure was to be made, and therefore the matter was not to be confidential, he would probably postpone his treatment, or he might not be treated at all. That, I understand is the main case upon which the Bill rests, but I would, with due respect to the hon. Member and also to the Seconder of the Bill, suggest that even in connection with venereal disease there is another side to the question. The issue of venereal disease occasionally arises in the divorce court. It sometimes happens that a wife files a divorce petition against her husband, her case being that during the marriage she has been infected with this disease by her husband. The husband defends the case and says either that it is not true that he infected his wife or else he says that he had no knowledge that he was suffering from the disease at the material time. Either of these defences he is entitled to put forward. If the wife is to prove her case—I do not say in every case but in some cases—it will be essential for her to call the doctor who treated the husband. Even if the Bill were amended in the sense that my hon. Friend opposite suggests, it would still be impossible for the wife to call the doctor who had treated her husband. It is said that if you have the possibility of disclosure on the one side it is a hardship, and I agree with that statement, but in the instance which I 2000 have just put forward we have a hardship on one side and a hardship and an injustice on the other.
Would it not be possible in such a case to call the doctor who treated the husband to give evidence of what he himself found in regard to the patient?
Secrecy between the patient and the doctor; secrecy about what the patient told the doctor, but not what the doctor found out for himself.
§ Mr. Foot
The hon. and gallant Member, whose name is on the back of the Bill, ought to have read the Bill. It does not merely apply to communications between the patient and the doctor, but it refers to any information obtained by a duly registered medical practitioner. Therefore, it is clear that there is prohibition of the use of any information which the doctor discovers in the course of treatment. If it were not so the whole case put forward by the Mover of the Bill would fall immediately. We have been told about the necessity for secrecy. How ridiculous it would be for the doctor to be called, and say: "Yes, this man was suffering from this disease, but I found it out for myself and he did not tell me. Therefore, there is no privilege attaching to it."
I do not want to elaborate these points, but I should like to give a similar case another way round. Suppose the wife brings a charge of that kind against the husband and that the charge is in fact without foundation. A case of this sort is actually given in the Law Reports. The husband says that the charge is untrue and that in fact the disease has been communicated to him by his wife. Such cases have occurred. What is going to happen in that case? If the Bill means complete prohibition so that the doctor cannot disclose anything, or if it is true that the doctor, if he thinks fit, can refuse to go to court even at the instance of the husband, it means that the husband cannot call his own doctor who treated him, to give evidence on his behalf. That would be a very great injustice. 2001 Here you have a physician, and such cases have arisen, who has treated a man against whom a horrible charge is made, and one which everybody would be most anxious to rebut if it were possible, and it may very well be by the terms of this Bill, if it became law, that man would be prevented from calling the only evidence which could effectively clear him of the charge.
I have given these examples of cases which might easily arise. If the hon. Member had confined himself to the actual cases which he had in mind some of us would have taken a very different attitude towards the Bill, but I can only suggest that those who drafted the Bill did not appreciate the effect of what they were doing. If they did appreciate it, it appears to me that it would not merely be a case of righting a wrong, but it would almost amount to conspiracy to defeat the ends of justice. However worthy the motives may be, the House cannot be expected to pass legislation of this kind, and the Bill ought to be rejected.
§ 2.44 P.m.
§ Mr. Ernest Evans
I beg to second the Amendment.
I am sure I am speaking for every Member of the House when I express appreciation of the services rendered to the country by medical men and our sense of indebtedness to them. Therefore, we should not be likely to refuse any privilege which they seek to claim unless there are overriding considerations in the public interest. With that reservation in mind I approach the consideration of the Bill. I think that my hon. Friend who moved it has not taken the best means of seeking to achieve the purpose that he has in mind. When any section of the community claims a privilege it is our duty as representing the community to make sure that the privilege is one which will not interfere with the interests of the community at large. What strikes me in this particular case is that members of the medical profession are claiming a privilege for themselves, not for the general public. If there were a general demand on the part of the public that they should have the right of influencing their own medical adviser that certain things should not be disclosed or given in evidence, it would raise the whole question as to which was the more important, the demands of public justice 2002 or the demands of public health, and in any academic consideration of such a question there would be a lot of things to which one would have to give serious consideration.
It is not necessary to consider that wider aspect of the matter in connection with this Bill, because it is a Bill which asks for a privilege for the doctor, not for the patient. Not only that it gives to the doctor more rights than his patient would wish to give. We are told that a medical practitioner shall be privileged from disclosing in a court of law information which has been obtained by him in the course of treating a patient. Take the case which has been mentioned—the case of a young unmarried woman who is expecting a child, and who is seriously ill. It may be of great assistance to her and to her medical adviser in treating her that she should declare the man who is the father of her child. Supposing she does that, what is the position of the medical practitioner under the Bill? He can say "I have information as to who is supposed to be the father, but I have the privilege of refusing to tell you who the father is." In other words, a privilege which is being claimed for the medical profession in the interests of the patient may in fact act detrimentally to the interests of the patient. That is possible under the terms of the Bill. The hon. Member who moved the Second Reading used a phrase to the effect that he was concerned with the importance of relieving the anxieties of the medical profession.
§ Mr. Evans
I do not think I am misquoting the hon. Member. I wrote the expression down because it struck me as an appropriate expression to be used, although rather surprising, by anyone who is supporting the Bill. He said that one of the things which had caused him to promote the Bill was the desirability of relieving the anxieties of the medical profession. Apart from the general principle which the Bill presents for our consideration there are details which, obviously, have not been sufficiently thought out to justify the House in giving it a Second Reading. Assuming that this privilege is given to members of the medical profession, who is to decide whether the particular member of the pro- 2003 fession concerned shall claim or waive the privilege? As far as I can see the medical man is to be the judge, not the patient or the court. He is entitled to claim the privilege of refusing to disclose information which he has obtained in the course of curing the patient. It does not matter whether the information is for or against the patient. It is enough for him to say that he claims this privilege. That is also the case in regard to the main question as to whether the information was obtained in the course of providing a cure. Who is to decide that? It is the doctor himself. The patient may be dead and the court cannot decide the matter.
The logical interpretation of the Bill is that as long as any medical man claims he has the privilege of refusing to the court information which has come to him in the course of his examination of the patient, that privilege must be accorded to him. That is putting into the hands of members of the medical profession a privilege to which they are not entitled, and, what is much more serious, imposing upon them a responsibility which I should imagine very few of them would wish to have. It might also involve considerable unfairness to the patient and interfere with the course of justice.
§ 2.53 p.m.
§ Sir J. Withers
I take it that the hon. Member for the Welsh Universities (Mr. E. Evans) would apply the same provisions as obtained in the case of solicitors, that if privilege is claimed it would have to be decided by the court as to whether it was a case of privilege. I feel that the doctors are in a difficult position indeed. I have great sympathy with them, and if the Bill goes to Committee and is dealt with sympathetically, I am sure that this question of privilege, whether it is of the doctor or the patient, could be cleared up.
§ 2.54 p.m.
§ The Solicitor-General (Sir Terence O'Connor)
It may be convenient to the House if I offer a few observations on the Bill which is before the House—not upon some imaginary Bill which is not before the House. I am afraid that I shall have to recommend the House to refuse a Second Reading to this Bill. The prime aim of the law is to secure justice between the State and individuals and justice between individuals and individuals. In 2004 order to obtain justice, our courts of law are so constituted that they may be enabled to arrive at the truth. There are one or two cases in which the law does not insist on the best methods of arriving at the truth, and those are cases in which, by custom of law, we say that a privilege exists. It is very difficult to justify a privilege at all, for a privilege by its very nature may involve doing injustice between man and man or between man and the State; but in the time-honoured practice of the law it has been said more than once that there are some cases where greater mischief would probably result from requiring the truth than from permitting the truth to be withheld. Those are the cases—and they are very few—in which the law does not insist that the whole truth should be presented in a court of law.
They are strictly confined; the first class consists of communications between husband and wife, on the fiction that a husband and wife are one person and that complete and absolute confidence should prevail between them upon what communications they have had. Evidence of judges and jurymen as to matters which have taken place while they were acting judicially is another privilege, and an absolute one; it is a privilege which arises from the circumstances in which they obtain their information, namely, that they are actually dispensing justice at the time. A further privilege surrounds State secrets, because the safety of the State is, after all, the supreme law. There are also a few matters on which decency forbids disclosure. Perhaps I need not elaborate that category, but there was a much-contested instance of it in a celebrated divorce case some years ago, in which it was re-laid down, that what transpired in the marriage bed was not matter for discussion, except in very exceptional cases, in a court of law.
Lastly, there is the only other case that bears any possible similarity to the case which the hon. Gentleman has put forward, and that is communications between a client and the legal advisers whom he has called in for the purpose of giving legal advice. The justification for that last class of privilege is that the communications are given for the express purpose of obtaining justice in a court of law, and it is the privilege of the client and not that of the solicitor. It is in- 2005 formation that is given for one purpose, and one purpose only—in order that a case may be presented before a court of law—and it would be manifestly impossible that communications in these circumstances should, in regard to the very justice that was being sought, be open to public disclosure in court. Those are the limited cases in which, by custom, less than the truth can be told in courts of justice. If anybody attempted to put into statutory form any of those classes of privilege, he would find the task a very difficult one. They are matters concerning which the custom of the law has erected the privilege which I have just described. I think that the promoters of the Bill, when they came to describe what privilege was, found themselves in the same difficulty as I should be in if I attempted to put into statutory form any of the safeguards of justice that I have tried to describe.
Let me now turn to the Bill that is before the House. May I say at once that, of course, everybody, looking at the matter academically, must feel a great deal of sympathy with the kind of case that lies at the back of my hon. Friend's mind, that of a patient who suffers from venereal disease. Obviously a claim for sympathy, at any rate, can be made in regard to those cases; but I must ask hon. Members for one moment to look at what the promoters have done in this Bill. I need not be very elaborate, since we have heard an admirable speech from the hon. Gentleman the Member for Dundee (Mr. Foot), and I do not quarrel with most of the instances that he gave of what would occur if this Bill were to become law. In the first instance, there is no definition of what the privilege is. Is it the privilege of the doctor or the privilege of the patient? I am inclined to think that, as the Bill is drawn, it is the privilege of the doctor. There will be some remarkable consequences if this Bill, or anything like it, is passed. For instance, what would happen in criminal courts? Supposing, for example, that a person were found to be dying of assault and that person was seen by a doctor who tried to cure him, and said, "It was so and so who did this to me," there is an absolute privilege under this Bill against the doctor disclosing that information. I do not know even whether the doctor could waive his own privilege.
2006 Let me take another case which is unfortunately more common. A doctor in the course of his duties is called in to attend some young woman upon whom an illegal operation has been performed; he discovers unmistakable signs that there has been an illegal operation, and the name of the abortionist who did it is disclosed to him by his patient. The privilege would prevent him if the Bill became law, from doing in that case what the law says is his duty as a citizen, namely, to communicate to the police the knowledge of the crime. Those are two instances. I could go on giving similar instances in all branches of the law. The divorce instance given by the hon. and learned Gentleman the Member for Dundee was a perfectly correct one. Many wives have obtained release from an impossible bondage only because they have been able to find out the doctors who were treating their husbands for illness. They have had no other evidence that they could rely on, and they have obtained justice only because they have found a prescription or something else which showed that their husbands were suffering from venereal disease. Apart from the power of compelling those doctors to give such evidence, they would never be able to obtain justice.
Again, take the case of a nullity suit, the case of an unhappy couple one of whom is unable to consummate marriage, and a doctor is in attendance on that patient—should it be impossible, in those circumstances, for the other party ever to obtain redress because the information which that doctor obtains in the course of treating the patient is absolutely privileged against disclosure in a court of law? Workmen's compensation cases and other cases come to my mind. Indeed, I venture to think that I am not overstating the matter when I say that there is hardly any branch of the law, civil or criminal, in which the passage of this Bill in anything like its present form would not impede the administration of justice. I was very interested in the account which the hon. Member for London University (Sir E. Graham-Little) gave of the success with which comparable measures had been attended in other countries. I do not know the details of the legislation in this respect in other countries, and if I may say so I do not think the hon. Gentleman knew them either, but it did not escape my 2007 observation that he had discovered, in the course of his inquiries, that in Switzerland where similar legislation existed it was necessary for doctors to make false declarations in order to avoid disobeying the law—in other words, that they had to give false death certificates because if they did not give false death certificates they would be disobeying the law which created the privilege.
§ Sir E. Graham-Little
I said that there are two certificates. One is the official certificate which can be handed into the court. The other is in the nature of an explanation to the relatives of the person concerned and is a different matter.
§ The Solicitor-General
I understood that, but if there are two certificates and one is different from the other, then one must be false. I do not think I have said anything which the statement about the two certificates did not justify. Of course that is the kind of circumstance that would be bound to arise if a Bill of this kind were passed into law. It has been suggested that there might be a possibility of amending the Bill in Committee so that it would be less harmful to the administration of justice than it is now. I am sorry that I cannot hold out any hopes that any pruning or alteration of the Bill could make it a workable Measure. Any Committee which had to consider the Bill would be faced with some very difficult questions. Why, for instance, should the new privilege which it is proposed to make statutory be confined to doctors? Would not the clergy have a very strong case for their inclusion in a Bill dealing with privileges? The Roman Catholic clergy have claimed for a long time that the secrets of the confessional should be absolutely privileged. Can it be conceived that if this Bill went into Committee there would not be Amendments seeking to extend this absolute privilege to communications that were made, either to Roman Catholic clergy or any other clergy? And, if clergy, why not children? It has been my unfortunate duty, even since I have held my present office, to have had to call as witnesses children of persons who were accused of crimes, in order to see that justice was done. It is an odious task, but it is essential if justice is to be administered. Could not an equally good case be made out for including the 2008 children of a person charged with a crime within the ambit of the law of privilege? And if children, why not brothers and sisters?
Once you attempt to put into statutory form the very anomalous restrictions that we have now upon the duty to give evidence in court, you run into so many other anomalies that it is hardly possible to conceive of any Measure of the kind which could be made workable. These are the reasons which impel me to advise the House that this is one of those cases in which, with every sympathy for the intentions of the reformer, one cannot help feeling that the reformer is creating more anomalies than he is attempting to remedy; and, much as one sympathises with his point of view, especially in relation to venereal disease, with which, for the reasons that the hon. Gentleman gave, the Bill does not deal specifically, I am afraid that this is a Bill which I cannot recommend to the House, and which would present so many administrative difficulties, if it were passed, that we cannot possibly contemplate any amendment which would make it a workable Measure.
§ 3.11 p.m.
§ Mr. H. G. Williams
My approach to this Bill was one of great sympathy with its objects, but I saw very great difficulties in giving effect to those objects without creating evils greater than those which it was trying to cure. We all know the great sincerity of the hon. Member for the University of London (Sir E. Graham-Little) and that, in bringing forward this Bill, he was endeavouring, not to protect the interests of the profession with which he is so honourably associated, but that he was thinking of the difficult cases which arise in connection with patients from time to time.
May I, as an example of the difficulties which I think might arise, give particulars of a case that came to my knowledge not long ago? A man was driving a motor car, which crashed into a lamp standard. Various people rushed out, and they found the driver in a condition of faint in the driving seat. By chance, the accident happened outside a doctor's house, and the doctor, an elderly gentleman retired from active practice, was first on the scene. He attended the driver, who was not hurt, but who was for the moment unconscious, and the doctor came 2009 to the conclusion that the driver of the vehicle was suffering from an epileptic fit. It is true that the driver had not called the doctor in, because he was unconscious when the doctor arrived. Nevertheless, the doctor treated him, and therefore for this purpose the doctor might claim to be a privileged person. What did the doctor do? He informed the local authority that the man was an epileptic and, in his judgment, ought not to be permitted to drive a motor car. That is one of the disqualifications, I think, and as a result the local authority exercised their powers and withdrew the man's licence to drive. Subsequently, as a result of representations which the driver made on his examination by a number of other doctors, it was decided to restore his licence, and then, a few months later, a similar accident occurred, and his licence has now been taken away for good.
It is clear that it was the duty of that doctor to the general public to stop a man who was an epileptic driving a car about the roads, because it was only through good fortune that there was not a very grave accident when he ran into the lamp standard. I take it that the privilege conferred by this Bill would apply in that case and that this man if the Bill had been the law of the land, would have been driving round the country still, a danger to himself and to every other human being in the way; and that, I think, is something which we could not contemplate. Not being as learned in the law as I should like to be, having only taken some part in drafting Bills that lawyers afterwards say are quite unintelligible when they come before the courts, I am not quite clear as to what is meant by this Bill, because in the very first words it says:Any information obtained by a duly registered medical practitioner in the course of treatment of any patient shall be regarded as confidential, and shall be privileged from disclosure in a court of law.I am not clear, and I do not think the Solicitor-General was, as to the real significance of those words. Do they mean that a court of law cannot compel a medical practitioner to give evidence, or do they impose on the practitioner the obligation of silence? Obviously, they are very different things. If it merely means that the court cannot extract the information from the witness, then this is 2010 going to put a medical practitioner in the very extraordinary position that he is to have free discretion whether he discloses the facts to the court or not. That is a position into which no witness ought to be put. It ought to be an absolute prohibition. As I read it, the medical practitioner would be free to give such evidence as he thought fit and to suppress such evidence as he thought fit. What would be the state of our law if every medical witness were in a position to tell as much of the truth as he thought desirable? It would make the medical evidence irrelevant because you would not know how much of it was important evidence and how much unimportant.
Although the medical profession is one of the most honourable in the country, we know only too well that there is a proportion of black sheep in it. What will be the position of the medical man who has not yet come under the notice of the General Medical Council, who is still in practice, but is not practising in a very desirable way? He may be called in to some accident case and become possessed of the vital evidence as to whether an injured person can recover heavy damages from some insurance company. A medical man of that type might go to his client and say, "If I give the right kind of evidence it is worth £2,000 to you; how much it is worth to me?" We are not dealing with the great mass of medical practitioners but from time to time there are proceedings before the General Medical Council, when Mr. So-and-So has to be struck off the roll for infamous conduct. There is a small proportion of such people, and from time to time they will be in a position to blackmail their clients—using the word in a wide sense—because they will be in a position to say, "Unless you promise me a fat fee in excess of the normal fee I will not disclose to the court the facts without which you cannot win your case."
That will be an intolerable position for patients to be put into. I can see that from time to time a medical man will be in possession of knowledge about a patient which it would be very disadvantageous to the patient ever to be disclosed. The needs of justice would not require that exposure, and the doctor could say to the judge, "I think that in all the circumstances I do not believe that what I have to say has any effective bearing on the case, and I ask to be relieved from 2011 answering that question". I am certain that in most cases, if it is a legitimate reason for making that request, a discreet judge would see that the doctor was not unduly pressed by counsel, particularly if there were some private notification to indicate why it was desirable that the information should not be disclosed. That kind of difficulty can always be overcome, but the medical man will be put into an extraordinary position of difficulty under this Bill for he will have to take the terrible decision whether he is to suppress the truth or not. While I have sympathy with the hon. Member for the University of London, I think that, for the reasons explained by the Solicitor-General, this matter having been well ventilated, the hon. Member might not press the Bill. I have no doubt that those eminent in the law will take notice of the discussion, and, possibly, where the practice has been defective it may be improved as a result of the debate, but I think on balance that my hon. Friend would probably be serving the cause he has so much at heart if he did not ask the House to vote on the Bill.
§ Question, "That the word 'now' stand part of the Question," put, and negatived.
§ Words added.
§ Main Question, as amended, put, and agreed to.
§ Second Reading put off for six months.