Effective patient care is today contingent on an enshrined principle of confidentiality. Without it, patients’ trust would be eroded and they would be reluctant to seek treatment from within the medical establishment, especially for conditions that carry social or moral stigma. They might instead self-medicate or seek out quacks, thereby creating public-health risks. As Andreas-Holger Maehle demonstrates, maintaining confidentiality was therefore vital for preserving individual and collective health.
But the ideas of privacy and confidentiality that now underpin doctor–patient relationships were still novel at the beginning of the twentieth century. How, then, have they become so integral? In Contesting Medical Confidentiality, Maehle compares the development in Germany, Britain and the United States of unique principles of medical confidentiality. Charting the transitions between different national and time-specific principles, he offers us important glimpses into the philosophical and political underpinnings of medical practice between the 1890s and 1920s. Such principles were the product not only of national legislative traditions, but also of distinct medical cultures and communities.
Although the study of medical confidentiality is not new, Maehle's comparative focus moves beyond a single national context. Instead, he offers up an important new transnational perspective on health policies, the medical professionals who implemented those policies and the often fraught relationships between medical professionals, their patients and the state. He does this through three cases studies: medical privilege in court, the notification of venereal diseases and the reporting of criminal abortions. In each, the principle of confidentiality was placed under considerable strain. We can see how the protection of individual patients through medical confidentiality conflicted with the protection of communal health through the encroachment of the state. This tension regularly manifested itself in medico-legal debates over court privilege – many doctors were reluctant to testify in divorce cases where one spouse had infected the other with venereal disease, or criminal cases against women suspected of terminating their pregnancies.
Throughout the book, Maehle touches on broader philosophical principles underpinning state governance and individual liberty, but his primary focus is the different legal frameworks and medico-legal power relations that shaped medical privilege. Decisions to overrule this privilege were made in the name of society's collective interests and according to each government's understanding of its role in preserving population health. However, the paradoxical result was, in some cases, the undermining of that health. Germany and the United States, with their different approaches to governance – interventionism versus individualism – arrived at similar solutions, specifically a robust defence of medical privilege and patient confidentiality. Greater attention to the ways in which these divergent understandings of state responsibility and individual liberty helped to shape similar utilitarian models of medical confidentiality would have added to Maehle's excellent study.
Medico-legal power dynamics were more equitable in Germany and those US states that adopted medical-privilege statutes. But, as Maehle demonstrates, there were nonetheless in all three countries large bodies of legal opinion that regarded medical privilege as an obstacle to justice. Doctors who declined to disclose information about their patient's abortions or venereal infections were often accused of abetting crime or undermining the effectiveness of measures designed to curtail the spread of disease. Reluctance among doctors to disclose information was born, in large part, of concern for their professional livelihoods. As Maehle rightly argues, doctors resisted pressure from lawmakers and public-health authorities because they needed their female patients’ patronage. In this way, his book helps to revise historiographical assumptions about the passivity of female patients subjected to medical intervention by a predominantly male medical profession. On the contrary, women were able to exercise considerable agency in their medical transactions.
Although Maehle has crafted excellent comparative case studies that are particularly impressive in their transnational focus, the book could have been more ambitious in its scope. Its brevity means that readers must rely on their existing knowledge of medical privilege (and the ways in which it was contested) to draw out the comparisons for themselves. As a historian with expertise in British history, this reader was more at home with the British debates (especially those around venereal diseases) but was left with unanswered questions about the comparable German and US case studies.
Maehle's arguments about medico-legal tensions and their impact on doctor–patient relationships would have also benefited from a historical analysis extending over more than three chapters. How, for example, did the precarious place of medical privilege in Britain affect the experiences of patients and their families? How did factors like class, race and gender inform doctors’ decisions to disclose confidential information? The book relies heavily on legal and medical archives, creating an overwhelming focus on the contestation and defence of privilege at professional and national levels. Less attention is given to the ways this trickled down into everyday medicine, impacting the personal relationships between patients, their families and doctors. These generalizations extend to the German, British and US medical professions themselves, whose diversity is unhelpfully simplified. The book groups together general practitioners, medical officers of health, a growing array of specialists and the burgeoning class of women doctors. Did they all experience the rancorous debates over medical confidentiality in similar ways? Greater attention to this diversity of experience would have made for a more well-rounded and compelling study.
Despite these limitations, the book succeeds on its own terms. Maehle has offered up a rigorously researched piece of historical scholarship that would appeal to legal scholars as well as historians and the wider medical humanities. Moreover, with increasingly fraught political and ethical debates over the use of patient data in the twenty-first century, his book is both timely and relevant. Contesting Medical Confidentiality adds greatly to our understanding of the historical traditions that helped to shape our contemporary expectations of the doctor–patient relationship. When might breaches of medical confidentiality be justified? Any such decisions required a delicate balance of individual and collective interests, but, as Maehle demonstrates, the principle of confidentiality in Germany, Britain and the US was surrounded by legal and moral ambiguities. Medical secrecy has been (and continues to be) controversial.
