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

Maehle, Andreas-Holger

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Abstract

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

Citation

Maehle, A. (2015). Preserving Confidentiality or Obstructing Justice? Historical Perspectives on a Medical Privilege in Court. Journal of medical law and ethics, 3(1-2), 91-108. https://doi.org/10.7590/221354015x14319325750151

Journal Article Type Article
Acceptance Date Mar 12, 2015
Online Publication Date Aug 1, 2015
Publication Date Aug 1, 2015
Deposit Date Apr 30, 2015
Publicly Available Date Aug 18, 2016
Journal Journal of Medical Law and Ethics
Print ISSN 2213-5405
Publisher Paris Legal Publishers
Peer Reviewed Peer Reviewed
Volume 3
Issue 1-2
Pages 91-108
DOI https://doi.org/10.7590/221354015x14319325750151
Keywords Medical confidentiality, Privacy, Medical evidence, Medical privilege, USA, Britain, Germany
Publisher URL http://www.uitgeverijparis.nl/tijdschriften/tijdschrift/2/Journal-of-Medical-Law-and-Ethics-JMLE#archief
Related Public URLs http://www.uitgeverijparis.nl/tijdschriften/tijdschrift/2/Journal-of-Medical-Law-and-Ethics-JMLE

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