of gossips, eavesdroppers, and peeping tomsjournalofmedicalethics, i982, 8, 134-143...

Journal ofmedical ethics, I 982, 8, 134-143

Of gossips, eavesdroppers, and peeping toms

Huw W S Francis Community physician, London

Author's abstractBritish accounts of medical ethics concentrate onconfidentiality to the exclusion ofwider questions ofprivacy. This paper argues for consideration ofprivacywithin medical ethics, and illustrates through the televisionseries 'Hospital', what may go awry when this widerconcept is forgotten.

Breaches of privacy and confidentiality are assumed tobe remote and unusual occurrences. In fact, they arecommon. We appreciate this when we discover our-selves to be the subjects of gossip, or the objects ofeavesdropping and prying. Only had we been borndeaf-mute or remained solitary for the whole of ourlives could we have avoided being either victims orperpetrators. Both gossip and eavesdropping may bebenign or malignant. Benign gossip is easy, uncon-strained talk or writing, especially about persons orsocial incidents; it is the stuff of social gatherings. Allof us, however, have been distressed by the maliciousgossip and the persistent eavesdropper. Fortunately,to experience the voyeur is rare; but the peeping tom isnever benign.Modern technology does not change the nature of

breaches of privacy; it simply increases the efficiencyof the wrong. By 'increasing the efficiency of thewrong' I mean that it aids the penetration of privacy(surveillance techniques); it disseminates the results ofthe breach more widely (the media); and it deepens theimpact on the individual (the collating by computer ofpersonal records). Technology does not present dif-ferent problems, but the old in new forms. Faced withthe demands of technological advance, many act as ifsituation ethics should apply, as if they presupposedthat '. . . our moral reasoning and practice should bebased on a readiness to violate some moral requirementin the face of wholly unique situations . .' (i). Tech-nology, however, adds no benison of grace to actionswhich are otherwise disreputable.

In Western society over the last 300 years or so there

has been an increasing wish to learn how people tick - itis well illustrated in biographies. Those of a religiouscast were inquisitive about the way in which the subjectfaced death. Izaak Walton in his life of John Donneends his long account of the deathbed:

'Thus variable, thus vertuous was the Life; thusexcellent thus exemplary was the Death of thismemorable man.' (2)

Fortitude or fear were touchstones both for the inter-pretation of a life and for the exhortation of others (3).The genre was exploited especially by the earnestEvangelicals of the igth century (4). Emotional andsexual relationships have replaced death as the para-digms by which the person and the life are understood.Aubrey's notorious tale of Sir Walter Raleigh seducingone of the Queen's maids of honour concludes: '. . .She proved with child and I doubt not but our Herotook care of them both . . .' (5). Raleigh is shown as a'gallant' in the worst sense and a 'gentleman' in thebest. These tendencies have been reinforced both bythe belief that the events of childhood are powerfuldeterminants of the course of the subsequent life andby the industry with which modern biographers havepursued their meticulous researches (6). In science, aswell as the arts, privacy may be breached. John Zimanargues that science is not a lonely struggle with taciturnNature by the individual, but a public, corporate activ-ity, depending on publication of results and theirpublic criticism, to reach a public consensus: 'science ispublic knowledge' (7). Insofar as clinical medicine isscientific, it is itself a form ofpublic knowledge. At theother end of the spectrum from the austerities of sci-ence, is the ubiquity ofpornography. '. . . We live ourlives among pornographic images.. . . we absorb suchreplicas as effortlessly as we swallow our daily bread

.' (8). This strong drive to intrude into and toexpose what was once hidden makes the trespass of themedia within the personal but the froth of a deeperfermentation within modern society. Are we inmedicine also less sensitive than we should be to theissues raised by the concept of privacy?

Classical medical ethics present a very exacting stan-dard in this field. The Hippocratic Oath says:

'. . . And whatsoever I shall see or hear in thecourse of my profession, as well as outside myprofession in my intercourse with men, if it be

Key wordsPrivacy; confidentiality; medical ethics; human rights;doctor-patient relationship; media and medicine; consent.

copyright. on June 21, 2021 by guest. P

rotected byhttp://jm

e.bmj.com

/J M

ed Ethics: first published as 10.1136/jm

e.8.3.134 on 1 Septem

ber 1982. Dow

nloaded from

http://jme.bmj.com/

Ofgossips, eavesdroppers, and peeping toms I35

what should not be published abroad, I shall neverdivulge, holding such things to be holy secrets.'(9).

W H S Jones, the editor of the first volume of the LoebClassical Library Hippocrates, draws particularattention to the phrase 'as well as outside my professionin my intercourse with men':

'This remarkable addition is worthy of a passingnotice. The physician must not gossip, no matterhow or where the subject matter for gossip mayhave been acquired; whether it be in practice or inprivate life.' (9).

It requires a total respect for the privacy, not only ofpatients, but of all. The Oath here reflects the distinc-tion Hannah Arendt discerned in ancient Greece be-tween the public and the private realms. The private orthe household sphere was the place where men weredriven by their wants and needs in the maintenanceand perpetuation of life. 'Natural community in thehousehold therefore was born of necessity, and neces-sity ruled over all activities performed in it'. The publicrealm, or that of the polis, was that of freedom; butmastering the necessities of life in the household was aprecondition of freedom in the polis (io). Illness sub-jected men to necessity and therefore was a privatematter.

Florence Nightingale expressed sentiments similarto the Oath in Notes on Nursing, at the end of herchapter on the observation of the patient:

'. . . every nurse should be one who is to bedepended upon, in other words, capable ofbeing a"confidential" nurse . . . she must be no gossip;no vain talker; she should never answer questionsabout her sick except to those who have a right toask them; she must, I need not say, be strictlysober and honest; but more than this, she must bea religious and devoted woman; she must have arespect for her own calling . . .' (i i).

Implicit is the feeling that to reveal what has beenlearnt in private may be damaging to the patient andthe family. Breaches of trust of this kind may be whatthe moral theologians call detraction, which Haringdefines as '. . . any unjustified assertion that infringesthe good name of another, even though it is not for-mally untrue' (I2). Aquinas speaks of detraction as'. . . depreciating another's reputation . .. by expos-ing secrets . . .' (13). The issue is the protection of aperson's honour and good name by not revealing whatmay be discreditable or embarrassing (I4). An associ-ated fault is undue inquisitiveness: '. . . prying into thedoings of others leads to detraction.' (I5). There isalways the temptation of schadenfreude when a personof high reputation slips, but the truth of an allegationabout another is no excuse for its publication. Thestandards of behaviour assumed by these writers ishigh indeed, and consistent with the modern conceptof privacy.

PrivacyPrivacy is difficult to define. This can be exaggerated;though we may not be able to put it precisely intowords, we are all aware of what a private situation is,and of the kinds of actions which invade and destroy it.Westin (i6) has distinguished four related statescovered by the concept: solitude, intimacy, anonymityand reserve.

In solitude a person is free from observation and onhis, or her, own. It may be sought for private thought,to complete a piece of writing or for simple relaxation.It must be differentiated from isolation, which isenforced; an isolated person may seek unsuccessfullythe company of his fellows. Intimacy is desired by morethan one person, usually pairs, to achieve satisfactorypersonal relationships; others are excluded, and physi-cal distractions may not be allowed into the physicalsetting. Apart from the obvious - lovers and families -others seek out such privacy: collaborators completinga joint project, or businessmen in delicate negotiation.In anonymity, while it is related to solitude, the stress ison the avoidance of identification in a public setting.The person wishes not to reveal who and what he is.Public figures, or ordinary people with public roles likepolicemen, when off duty wish especially for anonym-ity. Reserve is the state which enables an individual notto reveal aspects of his innermost self to others.Ingham (17) has argued that privacy fulfils four

important psychological needs. The first is personalautonomy. This may be served by the possession ofcherished objects or by the retention to ourselves aloneof special bits ofinformation or secret thoughts, wishesor fantasies. Privacy also gives a place for emotionalrekase. So, for example, the desire of relatives after afuneril to be left alone with their grief is respected.Goffman (i8) has drawn attention to the phenomena of'on-stage' and 'off-stage' behaviour in workers withexacting public roles; thus waiters who are controlled,courteous and cultured with customers in the restaur-ant may 'regress' to ribaldry and dialect in the kitchen.The third function is self-evaluation, particularly aftersome major upheaval or crisis in one's life. The fourthfunction is to allow limited and protected communicationand is therefore an important aspect of liberty.

Without privacy the closest ofhuman relationships -love, friendship and trust - could not develop (I9). Insuch relationships there must be mutual self-revelationin conditions where each will respect the confidencesand the sides of personality shown only when the per-son is, metaphorically, dtshabike, 'off duty' or 'back-stage'. In Aristotle's words: 'friendship requires timeand familiarity; as the proverb says, men cannot knoweach other till they have "eaten salt together" ... .' (20).Time, familiarity and 'eating salt' need privacy. Ifprivacy is essential to the best and deepest of ourrelationships it is bound up with our idea of ourselvesas persons, and with our humanity (I9). It stronglyimplies Kant's 'practical imperative': '. . . always treathumanity, whether in your own person or in the person



e.bmj.com

/J M



ber 1982. Dow

nloaded from

http://jme.bmj.com/

136 Huw W S Francis

of any other, never simply as a means, but always at thesame time as an end.' (2I).The importance of the concept of privacy in

medicine need not be overstressed. Solitude is clearlyrelated to rest and quiet as a necessity in the recoveryfrom illness. Intimacy in Westin's definition is therequired setting of the doctor-patient relationship; thecircumstances in which trust can grow and the patientcan reveal facts and emotions otherwise kept secret.Anonymity is related to confidentiality, that is to saydata should not be used in such a way that the subjectmay be identified. But since some regard illness asdemeaning to themselves, they might not wish to berecognised when attending a physician's consultingroom or a hospital out-patient clinic. Anonymity ismuch wider than the protection of verbal information.Reserve extends these ideas. The interaction betweenpatient and doctor, requires the patient to lower hisreserve, and this he will not do unless the doctor offershim 'limited and protected communication'. Eventhen the patient may not reveal all. He may entrust tothe doctor sufficient confidence for the treatment of aserious illness; but he may hold to himself his fear anddistress. Reserve must be exercised also by the doctorto protect the secrets of his patients.

It is difficult to maintain privacy when our healthcare is embedded in a system of public institutions. Toenter a general practitioner's surgery or a hospital is toforego some privacy. Serious illness nursed in a Night-ingale ward gets only limited protection: curtains andscreens may hide the patient from sight, but much willbe heard. Moreover, the whole apparatus of thewelfare state depends on the individuals who need tobenefit from its provisions freely making availableintimate facts about themselves and their families. Thedistinction which Hannah Arendt noted in ancientGreece between the private and public realm has beenblurred. The sphere where men are driven by necessity- birth, illness, indigence and death - have been incor-porated into the concerns of the wider society (22).This is not to say that collective provision for healthand social well-being is wrong, but simply that theproblem of preserving individual privacy is greatlyincreased (23).The concept of privacy is crucial to realising our

ideals about the doctor-patient relationship. CharlesFried has argued that the professional relationshipbetween doctor and patient (and between lawyer andclient) whilst in many ways cooler, is akin to friendship(24) and therefore raises issues of loyalty from one tothe other. Privacy imposes a duty which is wider thanthat of the customary sharp focus onto confidentiality,and cannot be divorced from the doctor's whole duty tohis patient as a person (25).

THE RIGHT TO PRIVACYThe modern right to privacy was first proposed in amost influential paper by Samuel Warren and LouisBrandeis in the Harvard Law Review for I890. Thepurpose of such a right was:

'to protect those persons with whose affairs thecommunity has no legitimate concern, from beingdragged into an undesirable and undesired public-ity and to protect all persons, whatsoever theirposition or station from having matters, whichthey may properly prefer to keep private, madepublic against their will.' (26).

This 'right to be left alone' is now widely regarded as afundamental or human right. Two major internationalcodes on rights are subscribed to by the UK: The Univ-ersal Declaration of Human Rights of the UnitedNations adopted in I948, and the European Conventionon Human Rights promulgated by the Council ofEurope in 1950. Article 12 of the Universal Declarationsays:

'No one shall be subjected to arbitrary inter-ference with his privacy, family, home orcorrespondence, nor to attacks on his honour orreputation. Everyone has the right to protectionofthe law against suchinterference or attack.' (27).

The related provision of the European Convention isArticle 8:I. Everyone has the right to respect for his private andfamily life, his home and his correspondence.2. There shall be no interference by a public authoritywith the exercise of this right except such as is inaccordance with the law and is necessary in a democra-tic society in the interests of national security, publicsafety or the economic well-being of the country, forthe prevention of disorder or crime, for the protectionof health or morals, or for the protection of the rightsand freedoms of others. (28).Jacques Velu, Professor of Law at the University ofBrussels, identified five major aspects of the right toprivacy under the European Convention:

I) Protection of an individual's physical and men-tal inviolability and his moral and intellectualfreedom.2) Protection against attacks on an individual'shonour and reputation.3) Protection of an individual's name, identity orlikeness against unauthorised use.4) Protection of individuals against being spiedon, watched or harassed.5) Protection against disclosure of informationcovered by the duty of professional secrecy (29).

Professor Velu's exposition oftheEuropean Conventionright to privacy includes the major points argued so farin this paper, namely: a fundamental respect for theperson; redress for detraction; the need for anonymity;the protection of solitude and intimacy, and the pro-hibition of breaches of reserve and confidentiality.Many of those aspects of privacy which are importantin medicine are therefore justiciable in Europe (3o).

BREACHES OF PRIVACY: AN EXAMPLE

In the autumn of I977, and again in the summer of



e.bmj.com

/J M



ber 1982. Dow

nloaded from

http://jme.bmj.com/

Ofgossips, eavesdroppers, and peeping toms 137

I978, BBC2 transmitted eight programmes, Hospital,based on the then Bolton Area Health Authority,which are likely to remain the most detailed televisedday-to-day examination of the National Health Service(NHS) in the provinces. Hospital is one of the dis-tinguished group of BBC documentaries using techni-ques which are variously called cint vMttM, 'observa-tional filming', actualite, or 'fly-on-the-wall', andwhich includes such programmes as: Sailor, on theformer aircraft-carrier, Ark Royal; two about publicschools, Westminster and Radley; Strangeways, filmedin the notorious Manchester Prison; and at the time ofwriting, Police, about the Thames Valley force. Moreintimate situations may be recorded than with conven-tional methods and, as one ofthe makers ofPolice said:

'You have to accept that you're in an emotionallysensitive position . .. when the stuffof your filmsis not fiction but other people's lives. But nomatter how uncomfortable a situation gets or howmuch you'd like to leave, you have to steel your-selfto stay. You have to steel yourselfto be "intru-sive", if that's the word . . .' (3i)

The Bolton programmes, like their companiondocumentaries, were a success, and were muchpraised. Efforts were made to ensure that the materialtelevised was acceptable, each programme beingviewed before transmission by panels locally and inLondon. Two related features make Hospital unique:first, the publications of the area management team(32-35) permit an analysis of the degree of ethicalunderstanding underlying their enthusiastic participa-tion; and second, from their papers it may be inferred,though they do not say so, that cine vMete might beconsistent with the requirements of medical ethics.The Bolton oeuvre is therefore of considerable interest,though here, where it is being used as a source ofillustration only, a full critique is not attempted.

Excellence did not prevent some episodes in each ofthe BBC documentaries from causing dismay. Hospitalwas not an exception, and several aspects were dis-quieting. In particular, the degree of personal identifi-cation of the people televised, while the norm in cinivbrite documentaries, does not occur in other medicalprogrammes. Usually producers go to much trouble toensure that patients remain anonymous, or that onlysufficient identification is given as is needed for a lucidexposition of the facts. In Hospital the institutions andthe geographical location were known, faces were seenand the personal names were not suppressed. Thenature of certain incidents gave grounds for greaterconcern:

An adolescent girl, under I6, was seen being'washed out' after a suicide attempt. Her face wasclearly seen.The death of, or failure to resuscitate, a young boyafter a drowning accident.

A middle-aged man being treated after beingbeaten up and rolled in pig manure.Elderly patients in a psychiatric ward whose faceswere seen.

An elderly, confused woman was shown beingcleaned of her own excreta. At one point in theprogramme she was seen naked, albeit a backview. Her name became known from a brief inter-view with her husband.

One case must be looked at more fully. A nursingauxiliary, who was fully identified, had been absent on225 days between I974 and I977; all but 30 of theabsences were covered by sick-notes. She had prob-lems at home with her children and her unemployedhusband (36). The Radio Times carried the followingnote, which accurately anticipated the design and con-tent of the programme:

'Two NursesSister Bleakley works in the ophthalmic wardcaring for patients with eye ailments. She is aconscientious nurse and her rewards arecorrespondingly great. She can rejoice with theold lady who can look out over the town at all thefamiliar landmarks now that her sight has beenrestored. And she can share the joy of a young girlwhose severe squint has been corrected bysurgery.While Sister Bleakley plies her skills, anothernurse faces a dismissal hearing. With her unionofficer in attendance she must answer charges ofabsenteeism. The process closely resembles atrial. After the prosecution, the defence and wit-nesses have been heard, three adjudicators retireto consider their verdict. All this was recordedbehind closed doors as it happened.' (37).

It is worth noting here both the words used, which areassociated with the criminal process, trial, charge, etc -a wholly unjustified implication - and the pejorativecomparison. This is, of course, an extreme example ofthe televising and the printing ofmaterial that is deeplydetractive; but each of these six episodes is a breach ofone or more of Velu's five principles. Each is either anintrusion into a very personal matter (a death, inconti-nence or nakedness); the broadcasting of informationwhich should be kept confidential (a suicide attempt);or the televising and printing of material prejudicial toreputation (the circumstances of a dismissal). Some ofthe explanations the area management team gave fortheir participation, or justifications in the face ofcriticism, were:

Of the death of the child, while they cite anantagonistic comment, they quote with approval aview that 'an honest and balanced presentation ofthe work ofa hospital (which is where most Britonsdie anyway) could not have been given withoutportraying death'; in other words, a defence by



e.bmj.com

/J M



ber 1982. Dow

nloaded from

http://jme.bmj.com/

138 Huw W S Francis

frequency. Intimate behaviour, however, ishighly prevalent in the community. To arguefrom frequency to publication is to suggest that noprivate action is sacrosanct from exposure.The Bolton area health authority had not receiveda single formal complaint from any patient ormember of staff (35). This is an importantmeasure of administrative success; but 'gettingaway with it' is not usually regarded as an ethicalcategory.The Secretary of State is helped by an informedpublic opinion in his bids for resources. True, butdoes effective publicity about the NHS requirebreaches of patients' privacy?The subjects had given their consent. This will beexamined later.

In the light of the undoubted importance of the seriesand the gravity and extent of the violation of privacy,these comments are surprisingly superficial. The mainethical point made by the Bolton team relates toconfidentiality:

'Medical ethics prescribe that a doctor will treatconfidentially the information he has learnedabout a patient in pursuance ofhis clinical respon-sibility towards that patient and will not disclosesuch information without the patient's consent;and his employing authority ... has a parallelduty to ensure that medical records and otherconfidential information are kept securely and arenot released unjustifiably.' (33).

The position of the Bolton team is therefore paradoxi-cal. On the one hand they hold a conventionally highview of the nature of confidentiality; on the other, theywere associated with serious intrusions into what wasprivate and personal. In this they seem to me not to beuniquely blameworthy, but merely to reflect a currentproblem of medical ethics.

The contradictions of confidentialityThe leading statement on confidentiality in the BritishMedical Association's handbook says:

'A doctor must preserve secrecy on all he knows.There are five exceptioais to this principle:

i) The patient gives consent.2) When it is undesirable on medical groundsto seek a patient's consent but is in the patient'sown interest that confidentiality should bebroken.3) The doctor's overriding duty to society.4) For the purposes ofmedical research, whenapproved by a local clinical research ethicalcommittee, or in the case of the NationalCancer Registry, by the Chairman of theBMA's Central Ethical Committee or hisnominee.

5) When the information is required by duelegal process.' (38).

The matter was put similarly by a resolution of theCentral Committee for Community Medicine.

C. . . the confidentiality of medical records is sac-rosanct, and that there is a continuing role fordoctors trained in the fields of preventive andeducational medicine which can only benefit allindividuals in the population if important infor-mation is shared freely, but with full precautionsto maintain confidentiality, between doctors prac-tising curative and preventive medicine.' (39).

Confidentiality is a most important issue and nothingsaid subsequently should be taken as seeming toimpugn this; however, from these statements threepoints arise. First, both statements are logically inco-herent: in each confidentiality is made sacrosanct; yet,by each, breaches are permitted. Both place the weightof the words on disclosure: the first has 96 words, ofwhich only nine deal with confidentiality, but 87 withthe exceptions. Of 54 words in the second, 21 concernsecrecy and 33 discovery. They are, therefore, not somuch statements on confidentiality, as of the condi-tions in which secrets may be made known, the reverseof their intention. Second, most of the conditions forbreaking confidentiality - duty to society, research,law, prevention and education - are all points wherethe interests of the community, the welfare state, orscientific research impinge on the life of the ordinarycitizen. In them, collective or bureaucratic require-ments are invoked to serve needs presumed to be largerthan the individual. Whilst the ideal of keeping secretsis as old as medicine itself, our contemporary conceptof confidentiality is defined in terms which are aresponse to our increasingly bureaucratic and imper-sonal society. Third, both statements treat confiden-tiality as 'given', as a dogmatic rule whose philosophi-cal provenance requires no exposition; in this they donot differ from other enunciations ofthe principle. Theresult is to reduce confidentiality to a technicalrequirement, to a punctilio which, while scrupulouslyobserved, is not well understood.

Recently I have heard both a hospital casualtydepartment and the reception area of a health centredescribed as 'designed for maximum confidentiality',when clearly the architects had in mind the protectionfrom prying of more than private information. Simi-larly, in the Bolton series, confidentiality was thoughtto comprehend the whole duty towards staff andpatients in respect of intrusions into the personal. Toomuch weight tends to be placed on the idea ofconfiden-tiality; it has replaced in contemporary discussion ofmedical ethics, the wider and more fundamental con-cept of privacy. Confidentiality is, as has been arguedalready, a diminished principle in itself. The outcomeis that the application of the principle of confidential-ity, to situations in which it is too narrow or inappro-



e.bmj.com

/J M



ber 1982. Dow

nloaded from

http://jme.bmj.com/

Ofgossips, eavesdroppers, and peeping toms I39

priate, may be reductionist. Far from protecting ourpatients, it may, as in Bolton, expose people to intoler-able disclosures. Our understanding of confidentialityis, therefore, paradoxical.

Confidentiality shares with privacy an importantfeature which is usually overlooked. Let us supposethat a family doctor sees a lady with arthritis. He may,at the end of the consultation, consider that as well asmedical treatment, the patient needs social support.He will, with the patient's consent, discuss her illnesswith the social worker.The doctor and the socialworker have a similar ethic, they share a loyalty to thepatient, they have the same aim - the recovery or sup-port of the patient or client, and they will discuss thecase from time to time. The breach of confidence isconstrained by known and acknowledged commit-ments of the professional people involved with thepatient; this kind ofbreach I callconvergent. The familydoctor has a second reason for breaching confidence.He is co-operating with a survey of the causes of arth-ritis. With his patient's agreement, the family doctorintroduces her to the research physician who inter-views and examines her. The research physician, whilehe shares the same ethic as the family doctor, does notshare the same loyalty; his loyalty is to the success ofthe research project, or to the greater good ofmankind,neither necessarily unethical. Nor is his aim the recov-ery of this patient, but the benefit of future patients asyet unknown. His relationship with the patient, whileethical, is but a simulacrum ofthe therapeutic one. Thebreach of confidence is not contained within a knowngroup of continuing professional commitments; thiskind I call divergent.The patient's motives are important too. In accept-

ing the need for a breach of confidence to the socialworker, the patient was acting in her legitimate self-interest, but in co-operating with the research project,she was acting out of altruism (40). Where the lawrequires a breach of confidence, there must be anelement of coercion, but even there altruism cannot beruled out entirely. Some drivers, suffering from illnes-ses which affect their safety at the wheel, may admittheir disabilities and surrender their licences voluntar-ily, out of consideration for others. The Central Com-mittee for Community Medicine places a specialemphasis on the desirability of divergent breach ofconfidence (39). Indeed, without it, the administrationof the service and the pursuit of preventive medicinewould hardly be possible. Because of the need foraltruism, it is important not to assume that breaches ofconfidence can be demanded as a routine. Which leadsus on to the question of consent (4I).

Categories of consentBoth in the right to privacy under the European Con-vention and in the statements on confidentiality, theconsent of the subject releases the professional con-cerned from the obligation of secrecy. The problem of

consent is, as Professor H L A Hart put it, due to ourgreater knowledge of:

'. . . a great range of factors which diminish thesignificance to be attached to an apparently freechoice or to consent. Choice may be made orconsent given without adequate reflection orappreciation of the consequences; or in pursuit ofmerely transitory desires; or in various predica-ments when the judgment is likely to be clouded;or under inner psychological compulsion; orunder pressure from others of a kind too subtle tobe susceptible ofproofin a court oflaw . . .' (42).

It is notorious that medical institutions are in theirnature coercive, even when the staff are sensitive andconcerned. A philosophy don writing of a short stay ina fine teaching hospital said:

'Am I glad to be home? Am I! Everyone wholooked after me was wonderfully careful and con-siderate. Yet the institution was hell . . . Noamount of care can compensate for the loss ofidentity and autonomy.' (43).

There is a more fundamental issue: is consent given bya patient to release medical information about himselfof the same kind as, say, that given for a surgeon torepair a hernia? Paul Ramsey argues that:

'. . . The principle of an informed consent is astatement of the fidelity between the man whoperforms medical procedures and the man onwhom they are performed . . . The principle ofaninformed consent is the cardinal canon of loyaltyjoining men together in medical practice andinvestigation. In this requirement, faithfulnessamong men - the faithfulness that is normativefor all the covenants or moral bonds of life - gainsspecification for the primary relations peculiar tomedical practice.' (Ramsey's italics). (44).

The advice given to photographers who undertake'glamour work' is to use what significantly is called a'model release form'. The form signed by the modelallows the photographer to use the photographs as hewishes, whether retouched or not, to use the photo-graphs to represent an imaginary person and to attri-bute any wording, provided the woman's actual nameis not used (45). That is, the photographer is allowed touse the likeness of his model for what would otherwisebe an attack on her good name, and in a way that isdetractive. The photographer is released from fidelitybetween him and his sitter; there is no canon of loyaltyhere.There is a clear analogy between consent and the

analysis of breaches of confidence above. Ramsey'sidea of fidelity involved in clinical consent stronglysuggests that clinical consent is convergent, a bindingtogether of the parties. Consent to breach of privacy is



e.bmj.com

/J M



ber 1982. Dow

nloaded from

http://jme.bmj.com/

4o0 Huw W S Francis

divergent because the doctor who passes on informa-tion, by the same act also loses control of it. He can giveno fiduciary bond that untoward consequences will notfollow. This applies even to the example above of thesocial worker; the doctor cannot be absolutely certainwhat she might divulge within her own profession ororganisation. Each consent to a breach of privacy orconfidentiality is a release from part of the loyaltybetween a doctor and his patient. The doctor in seekingconsent to disclose is closer to the 'glamour' photo-grapher than to the surgeon offering treatment. Toregard consent to treatment and consent to breach ofprivacy as if they were continuous each with the other,is to be guilty of a category mistake.

In consent for medical treatment, the physician orsurgeon does not take this as an unfettered licence tocarry out the treatment irrespective of the patient'sultimate well-being. If a patient has given consent for,say, a repair of a hernia, but arrives at the hospital witha chest infection, the surgeon will delay the operationuntil the patient's chest is better. Similarly, a consentto breach privacy should not be taken at face value.The doctor is under an obligation to consider the widerinterests of the patient dependent on his professionaljudgment. Is there a possibility that publicity maydamage his client? In the example of the dismissal ofthe nursing auxiliary in Bolton, the printed and tele-vised material was deeply detractive. Moraltheologians would probably regard that publicity forher as morally undesirable, even though she gave con-sent. There is a long-held principle that it is impermiss-ible for anyone to multilate himself physically, or to doanything voluntarily which will damage his health (46).It is but a small extension to regard consenting volun-tarily to the publicising of seriously detractive materialabout oneself as morally reprehensible. There is anelement of ethical peculation in accepting without themost careful thought, and long discussion with theperson involved, a consent to serious self-detraction(47)-

SanctionsIn English law there is little or no redress againstbreaches of privacy or confidentiality. The truth of thestatement is itself an absolute defence in an Englishcourt against defamation, however discreditable itmight be to the person against whom it is directed.There is, however, a certain amount of case law. TheDuchess ofArgyll wished to publish a book, which wasgoing to be serialised in a newspaper, which related tointimate matters relating to her recently dissolved mar-riage with the Duke of Argyll. The Duke took out aninjunction against the Duchess to prevent the publica-tion of this material. During the course of the judg-ment the trial judge said:

'An injunction may be granted to restrain thepublication of information not only by a personwho was a party to the confidence, but also by

other persons into whose possession it has im-properly come.' (48).

The very influential paper by Warren and Brandeis(26) was based on the analysis of a small number ofEnglish cases in the 19th century. Ironically, while thelaw in other countries has progressed, English com-mon law on this point has remained relatively static.The Argyll case may be the beginning of a changeperhaps reflected in the House of Lords' ruling againstGranada Television, upholding the confidentiality of aBritish Steel Corporation memorandum (49). In addi-tion the law of trespass and of nuisance may occasion-ally offer some remedy but in any event recourse to thecourts and appropriate redress are both difficult.There are four other possible means of action, apart

from recourse to the courts, none ofthem very strong.i) There are the Press Council and the new Broadcast-ing Complaints Commission. The effect outside themagic circles of the media is probably small. At least acomplainant has some satisfaction if complaints areupheld.2) An aggrieved person can complain against theNational Health Service to the Parliamentary Commis-sioner, the Ombudsman. Of course, the broadcastingauthorities do not fall under the Ombudsman's pur-view, but to the extent that officers or employees oftheNHS were responsible for breaches of privacy or con-fidentiality, then it is likely the commissioner wouldgive some consideration to them.3) Employees of the NHS would certainly be liable todisciplinary action within the service if they wereresponsible for breaches of confidentiality. Seriousmisdemeanours might bring professionals, at least,under the purview of their registering bodies.4) The European Convention on Human Rights isbacked by the Court and Commission on HumanRights in Strasbourg. Subject to the continuing pleas-ure of Her Majesty's Government, individual citizensof the United Kingdom may take individual com-plaints against government departments and agenciesto Strasbourg. Several have proceeded on health mat-ters, particularly on aspects ofdetention for psychiatricillness. The position of the BBC, as an official butindependent body, is undecided under the EuropeanConvention. But certainly proceedings against NHSauthorities could be taken by individuals who wereaggrieved in matters of privacy and confidentiality,and had gained no satisfaction from other means ofredress (50).

While these powers are either weak or difficult touse, they certainly cannot be ignored by healthauthorities, their officers or their employees, or by thehealth professions as a whole.

The importance of privacyIn discussing a cine veriti documentary on health ser-vices as if it might be consistent with medical ethics,the Bolton authors made a serious challenge to the



e.bmj.com

/J M



ber 1982. Dow

nloaded from

http://jme.bmj.com/


concept of privacy. The practitioners of cine verinthave, at times, 'to steel' themselves 'to be intrusive'(3i), that is, to ignore the ordinary, civilised conven-tions which protect what is rightly personal. Withinethical discourse, the Bolton papers are, therefore, areductio ad absurdum and cannot be seriously enter-tained.

I have been careful to point out that I do not regardthe Bolton team as uniquely blameworthy, but asmerely reflecting, even ifby excess, some current prob-lems of ethical understanding. The contemporaryzeitgeist favours exposure of the private and personal.As was seen earlier, attempts to breach privacy may bemade as readily by the virtuous as the venal, by thesaint as carelessly as the sinner. The dominant ethicalprinciple is confidentiality which covers only a part ofthe relevant field; it deals with some, but not all, of theconcerns which Westin (i6) dealt with under anonym-ity, but hardly touches the issues he raised under sol-itude, intimacy and reserve. There is also the failure todistinguish between what I have called here convergentand divergent breaches ofprivacy. The attempts whichare being made by new law and codes of practice toprotect individuals from breaches of confidentiality incomputer systems or research are to be welcomed,because they particularly aim at the divergent. Thenature of consent is crucial. In relation to breaches ofprivacy it is always divergent: the patient is eithercoerced or has to exercise some degree of altruism togive it; in neither case should a consent given in goodfaith be abused.A peculiarity of the British situation is, however,

that the provision for the protection of privacy by lawor administration is weak, difficult to obtain or remote.This is compounded by the major British handbookson medical ethics (38, 5I, 52) neglecting the subject.None gives an account of privacy as distinct fromconfidentiality. Human rights are mentioned by one(5 i), but the right to privacy is an absentee. The con-cept of privacy needs to be revived for two majorreasons:

I) It relates medical ethics to modem formulations ofhuman rights. The growing bureaucracy of the stateand of large-scale industry and commerce tend toinvade personal and family matters more and more.Individuals require protection against the intrusiveinterests of the collective whether it is constituted asstate, corporation, community or group. As RonaldDworkin put it:

'. . . if rights make sense at all, then the invasionof a relatively important right must be a veryserious matter. It means treating a man as lessthan a man, or as less worthy than other men. Theinstitution of rights rests on the conviction thatthis is a grave injustice, and that it is worth payingthe incremental cost in social policy or efficiencythat is necessary to prevent it . . .' (53)

Arguments from the common good are frequently usedto justify infringing privacy to increase the efficiency ofhealth services, to facilitate research or to aid publicity.It is precisely because it is necessary and wise to yield tothese claims in many instances, but not every one, thatthe protection afforded by a fundamental right isrequired. The right to privacy under the EuropeanConvention is not widely known. Appreciation isincreasing of the importance ofthe European Commis-sion on Human Rights and the European Court ofHuman Rights in matters relating to mental healthservices. Unless awareness grows of the hazards inwhich breaches of privacy may place people in theNHS, then references to Strasbourg on these groundsalso may follow. Even if that possibility did not exist,the obligation in the Hippocratic Oath, to hold as holysecrets '. . . whatsoever I shall see or hear . . .'requires not a narrow confidentiality, but a wider pri-vacy.2) Consideration of privacy leads directly to majorissues of principle. Privacy is integral to the doctor-patient relationship. Without it, the trust the doctorrequires to elucidate the problems of his patient wouldnot be given. In Charles Fried's moving analogy, at itsbest it is akin to friendship (24). Equally, privacyrelates to the dignity of human persons. Public detrac-tion may remove those last shreds of a healing self-respect. The psychiatrically ill and the mentally handi-capped, to create public regard for whom much efforthas been expended, can so easily be misrepresented byill-considered publicity. We must face squarely, toborrow Elizabeth Maclaren's words '. . . our ownpower to make or unmake one another as persons ofdignity' (54). Aquinas divides the virtue of prudenceinto three parts: good counsel, good judgment accord-ing to rules or laws, and good judgment in exceptionalcases (55). The exceptional should be judged, he says,'by certain principles higher than ordinary rules' (56).The advances of modem technology and the greed ofthe media for the newsworthy present doctors andhealth service administrators with decisions which arenovel in their particulars, but not in principle. A graspof the concept of privacy is a sound basis for dealingwith the unanticipated with discretion.

This paper is therefore a plea that ethical discoursein British medicine should be enlarged from confiden-tiality to privacy. It is to ask for very little, since to theordinary, sensitive man and woman there is somethingunseemly in putting on public display a dying boy, agirl after a suicide attempt, or a naked, incontinent oldlady. What is required to protect human dignity issimple: a lively appreciation of the Golden Rule, (57) alittle ordinary kindness and empathy. Despite ourinnate curiosity, our propensity to pry, there is in all ofus a natural modesty, a need to withdraw, a wish forprivacy. Medicine must be careful that its practices andethics correspond to the intuitions of ordinary people,intuitions reflected in the disapproving nuances ofthose common epithets: gossips, eavesdroppers andpeeping toms.



e.bmj.com

/J M



ber 1982. Dow

nloaded from

http://jme.bmj.com/

I42 Huw WS Francis

AcknowledgementsThis paper is based on a much earlier version whichwas given at a meeting in Cheltenham in May I979 ofthe South West region of the Faculty of CommunityMedicine. I am indebted to a number of friends andcolleagues for discussing several points with me and fortheir helpful comments. Gill Welsman, Angela Hul-bert and Linda Fairbairn have patiently prepared thevarious drafts. The views expressed in the paper arepersonal, and are not necessarily those ofany organisa-tion with which I am associated.

References and notes(i) Ramsey P. The patient as person. New Haven: Yale Uni-

versity Press, 1970: 4.(2) Walton I. (i67o) The lives ofJohn Donne, Sir Henry

Wotton, Richard Hooker, George Herbert and Robert San-derson. London:Oxford University Press, Reprint I973:82. World Classics Edition.

(3) One modem interpretation of Donne's death is thereverse of Walton's. It is based on his having been bornCatholic and dying Protestant: 'So far as we know, hedied an apostate and made no sign' - no sign, that is, ofcontrition. RopeH E G, quoted by Carey J.JohnDonne:life, art and mind. London: Faber and Faber, I98I: 26and 284.

(4) Cockshut A 0 J. Truth to life. London: Collins, I974:i6-79.

(5) Dick 0 L. ed. Aubrey's brief lives. Harmondsworth:Penguin Books, I972: 408.

(6) It is ironic, in view of Freud's influence on our know-ledge ofchildhood events in the genesis ofadult person-ality, that his most recent biographer deplores his 'prop-ensity to destroy documents'. Freud wrote to his futurewife in i885, after an orgy of destruction, '. . . I couldnot have matured or died without worrying who wouldget hold of those old papers . .. As for biographers, letthem worry . . .' Clarke R W. Freud: the man and thecause. London: Jonathan Cape and Weidenfeld andNicholson, I980: 63.

(7) Ziman J. Public knowledge. Cambridge: CambridgeUniversity Press, I968: 8-io.

(8) Vincent S. In tears amid the alien porn The SundayTimes i98i Sept I3: 34.

(g) Jones W H S. ed. Hippocrates Vol i. London:Heinemann, I923: 301. Loeb Classical Library.

(Io) Arendt H. The human condition. Chicago: University ofChicago Press, I968: 30-31.

(ii) Nightingale F. (I859) Notes on nursing. Glasgow: Blac-kie, reprint 1974: 70-7I.

(12) Hiring B. Free and faithful in Christ Vol 2. Slough: StPaul Publications, I979: 9I.

(13) St Thomas Aquinas Summa theologiae 2a2ae 73,1. Lon-don: Eyre and Spottiswoode, 1975: I73. Vol 38 Blackfr-iars Edition, Lefebure M. translator.

(14) There is a problem of nomenclature in relation to theclass of moral faults of which detraction is a member. Ihave followed Bernard Hiring - See reference (12) -who uses calumny for allegations which are untruthfuland detraction for those which may be truthful. Aquinas,whilst he recognised the distinction Hiring draws,wrote of contumelia for public allegations and detractionefor secret ones.

(I5) St Thomas Aquinas. Summa Theologie 2a2ae I67, 2.London: Eyre and Spottiswoode, 1972: 209. Vol44Blackfriars Edition, Gilby T. translator.

(I6) Westin A F. Privacy andfreedom. Quoted by Ingham R.Privacy and psychology. In Young J B. ed. Privacy.Chichester: John Wiley, I978: 39-40.

(I7) See reference (I6) Ingham R. 44-46.(i8) Goffman E. The presentation of the self in everyday life.

Harmondsworth: Penguin Books, I969: I09-I40.(i9) Fried C. An anatomy ofvalues. Cambridge, Mass: Har-

vard University Press, i97o: I40-I44.(20) Ross D. translator. The Nicomachean ethics ofAristotle,

ii56b, 25. London: Oxford University Press, I954:I96-I97. World Classics Edition.

(21) Paton H J. The moral law. London: Hutchinson, I948:9I.

(22) See reference (10) 45.(23) It would be wrong to leave the impression that the

welfare aspect of the state's activity is uniquely intru-sive. The returns on which income tax is based, stem-ming from William Pitt's Act of I799, are almost i5oyears older than the welfare state and the inquisitorialfeatures affect more people more frequently. See Mon-roe H H. Intolerable inquisition?. London: Stevens,I98I: 4-II.

(24) Fried C. Right and wrong. Cambridge, Mass: HarvardUniversity Press, 1978: 179-I83.

(25) My paper has been influenced more than I can easilyacknowledge, since my indebtedness is general ratherthan specific, by I E Thompson's essay, The nature ofconfidentiality,Journal ofmedical ethics I979; 5: 57-64.I believe, as will be obvious from the text, that Thomp-son is incorrect, however, to treat privacy as part ofconfidentiality, and not the reverse.

(26) Warren S D, Brandeis L. The right to privacy. Harvardlaw review I890; 4: 193.

(27) Brownlie I. Basic documents on human rights. Oxford:Clarendon Press, i97I: I09.

(28) See reference (27) p 343.(29) Velu J. The European Convention on Human Rights

and the right to respect for private life, the home andcommunications. In Robertson A H. ed. Privacy andhuman rights. Manchester: Manchester UniversityPress, I973: I2-95.

(3o) This paper does not deal with the case law which hasdeveloped in the USA some of which has affected mat-ters as diverse as contraception (WingW R. The law andthe public health. St. Louis: C V Mosby, I976: 55-69)and the withdrawal of life support in the case of KarenQuinlan (Ramsey P. Ethics at the edges of life. NewHaven: Yale University Press, I978: 268-299).

(3I) Stewart C producer (with Graef R) ofBBC series Police.Quoted by Burn G. Focus on the force. Radio TimesI982 Jan 2-8: 76.

(32) Elwood W J, Beveridge M D, Hunter T R, SutherlandR B, Ryder T, Woodcock C. The Bolton TV hospitalseries: (I) How did it happen?. Hospital and health ser-vices review I978; 74: 43.

(33) Elwood W J, Beveridge M D, Hunter T R, SutherlandR B, Ryder T, Woodcock C. The Bolton TV hospitalseries: (2) Were we right to say 'Yes' to the BBC?.Hospital and health services review I978; 74: 43.

(34) Elwood W J. Letter. British medical journal i978; Feb25: 504.

(35) Elwood W J. The NHS and the media. Communitymedicine I979; I: 97.



e.bmj.com

/J M



ber 1982. Dow

nloaded from

http://jme.bmj.com/


(36) The examples are taken from my own notes, made whileviewing the second screening of the series in the summerof 1978.

(37) Radio Times i978 Aug 28: 31.(38) British Medical Association. The handbook of medical

ethics London: British Medical Association, i98i: 12.(39) British medical journal i98i; 282: i8i6.(40) I use the word altruism as defined by Thomas Nagel:

'. . . I do not mean abject self-sacrifice, but merely awillingness to act in consideration of the interests ofother persons, without the need ofulterior motives.' Thepossibility ofaltruism Oxford: Clarendon Press, 1970: 79.

(41) My argument which distinguishes convergent anddivergent breaches is, I appreciate, oversimplified.Most breaches of privacy have both elements. I do notthink that this invalidates the argument.

(42) Hart H L A. Law, liberty and morality. London: OxfordUniversity Press, I963: 33.

(43) Belsey A. Don's diary. Times Higher Educational Sup-plement I978 June 2.

(44) See reference (I) 5.(45) Practical photography I978 Dec: 5I-55.(46) Donagan A. The theory ofmorality. Chicago: University

of Chicago Press, 1977: 76-8I.(47) The Bolton workers make much ofthe fact that the BBC

employed a nurse to obtain consents. In their view thiswas an ethical advance. They seem, however, to havemistaken a new procedure for a matter ofprinciple. Fewof the participants seem to have seen the programmesbefore they were screened, and it is doubtful that thepublicity material was discussed with anyone. Therewas also a marked discrepancy between the agreement

between the BBC and the authority, and the consentform signed by the participants. The consent pro-cedures in Bolton fell far short of the medical require-ment of fully informed consent. The Bolton workersalso discuss the problem of consent from, or on behalfof, incompetents, which I do not deal with in this paper.

(48) Quoted by Kidd C J F. Freedom from unwanted public-ity. In: Bridge J W, Lasok D, Plender R 0, Parrott D L,eds. Fundamental rights. London: Sweet and Maxwell,1973: 52. Case reference: Argyll v Argyll [i967] Ch 302.

(49) British Steel Corporation v Granada Television Ltd[I980] 3 WLR 774.

(5o) Robertson A H. Human rights in Europe. Manchester:Manchester University Press, i977.

(5i) Thomson W A R. A dictionary of medical ethics andpractice. Bristol: John Wright, 1977.

(52) Duncan A S, DunstanG R, Welbourn RB. Dictionary ofmedical ethics. London: Darton, Longman and Todd,I98I. Revised edition.

(53) Dworkin R. Taking rights seriously. London: Duck-worth, I977: I 99.

(54) Maclaren E A. Dignity.Joumnal ofmedical ethics I977; 3:40-4I .

(55) St Thomas Aquinas. Summa Theologiae ia2ae 57, 6.London: Eyre and Spottiswood, i969: 56-6i. Vol 23Blackfriars Edition, HughesW D. translator.

(56) St Thomas Aquinas. Summa Theologiae 2a2ae 5I, 4.London: Eyre and Spottiswood, I974: 105. Vol 36Blackfriars Edition, Gilby T. translator.

(57) '. . . Whatever you wish that men would do to you, do soto them . . .' Matt 7:12, The Bible, revised standardverston.



e.bmj.com

/J M



ber 1982. Dow

nloaded from
http://jme.bmj.com/

of gossips, eavesdroppers, and peeping tomsjournalofmedicalethics, i982, 8, 134-143...

Documents