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The Duchess of Kingston's Case, the ruling of Lord Mansfield and duty of
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International Journal of Law and Psychiatry xxx (2012) xxx–xxx

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International Journal of Law and Psychiatry

The Duchess of Kingston's Case, the ruling of Lord Mansfield and duty of medical
confidentiality in court
Danuta Mendelson ⁎
School of Law, Deakin University, Burwood, Victoria 3125, Australia

a r t i c l e i n f o a b s t r a c t

Available online xxxx The aim of this article is to demonstrate that the ruling commonly cited as the original precedent1 for the doctrine
that, at common law, medical practitioners' duty of confidentiality to their patients does not apply to
Keywords: court testimony,2 did not, in fact, establish any such theory. The ruling by Lord Mansfield was made in the context
Duty of cross-examination by the Crown of a medical witness in the course of the trial of the Duchess of Kingston
Confidentiality (Duchess of Kingston's Case (1776) 20 Howell's State Trials 355; [1775–1802] All ER Rep 623; [1776] 1 Leach
Courts proceedings
146), and this article will look briefly at: (1) the fascinating life of Elizabeth Chudleigh, the Dowager Duchess
History
Lord Mansfield
of Kingston, and the main events that led to her trial for bigamy; (2) the cross-examination of Caesar Hawkins
Precedent and the different perceptions of the scope of confidentiality held by 18th century lawyers on the one hand and
medical practitioners on the other; (3) Lord Mansfield's ruling that witnesses cannot withhold from the court
facts which the law considers to be in the public domain; (4) the subsequent wide interpretation, usually as ju-
dicial obiter dicta, of its final paragraph during the 19th century, including early jurisprudential responses to the
principle of medical confidentiality; and (5) the influence of John Henry Wigmore's opposition to patients' evi-
dentiary privilege at common law during the twentieth century.
© 2012 Published by Elsevier Ltd.

⁎ Tel.: +61 3 9244 6733/92446062. 1. Introduction

E-mail address: danuta.mendelson@deakin.edu.au.
1
See for example: Dr C v. Complaints Assessment Committee [2006] N.Z.S.C. 48; D v.
National Society for the Prevention of Cruelty to Children [1978] A.C. 171 at 237–240;
Winterthur Swiss Insurance Company, The National Insurance & Guarantee Corporation
Limited v. AG (Manchester) Limited (In Liquidation), Rowe Cohen (A Firm), Ashington
Denton (A Firm) [2006] EWHC 839 at [66]; Three Rivers DC v. Bank of England (Disclo-
sure) (No.4) [2005] 1 A.C. 610, [2004] UKHL 48, per Lord Carswell at 668 [86]; R. v. Der-
by Magistrates Court Ex p. B [1996] A.C. 487 at 504 (Lord Taylor of Gosforth CJ referring
to ‘Sir Cecil Hawkins’ instead of Caesar Hawkins); Slavutych v. Baker, [1976] 1 S.C.R.
254; 55 D.LR. (3d) 224 (SCC) at 228 per Spence J; Watson v. McEwan (1904) 12 S.L.T.
599; Attorney General v. Briant (1846) 153 E.R. 808 at 179; Broad v. Pitt (1828) 172
Eng. Rep. 528 at 529; R. v. Gibbons (1823) 171 E.R. 1117; Upham v. You (1986) 11
C.P.C. (2d) 83, 73 N.S.R. (2d) 73, 176 A.P.R. 73 at [11]–[24] per Matthews JA speaking
for the court; R. v. Young [1999] 46 N.S.W.L.R. 681 at 699, per Spigelman CJ speaking
for the court; Watkins v. State of Queensland [2007] Q.C.A. 430; State of Western Australia
v. PGM [2004] W.A.D.C. 95 at [39].
2 3
For example: Anonymous, Attorney–Client Privilege. 98 Harv. L. Rev. 1501, 1502-03
(1985): Referring to John H. Wigmore, 8 Evidence in Trials at Common Law §2290, 543
& n.3 (M. McNaughton rev. ed. 1961), the author wrote: ‘Although the early utilitarian
theory and the honour-based justification [for attorney–client communications]
co-existed for a time, Lord Mansfield, in The Duchess of Kingston's Case 20 How. St. Trials
355 (1776), explicitly rejected the honour-based justification because the same rationale
might also justify the creation of a privilege for physician–patient relationships’ — at no
stage did Lord Mansfield explicitly aver to the attorney–client privilege. For a different,
though equally erroneous spin see: Thomas J. Reed, Evidentiary Failures: A Structural
Theory of Evidence Applied to Hearsay Issues, 18 Am. J. Trial Advoc. 353, 385, fn 138
(1994): ‘In 1776, Lord Mansfield refused to recognise the Hippocratic Oath as the source
of a common law confidential communications privilege between physician and patient.
The Duchess of Kingston's Trial, 20 How. St. Tr. 573 (1776)’. In fact, Lord Mansfield did
not refer to the Hippocratic Oath; see also Angus H. Ferguson, The Lasting Legacy of a
Bigamous Duchess: The Benchmark Precedent for Medical Confidentiality, 19 Soc. Hist.
Med. 37–53 (2006).
In 1776, Elizabeth Chudleigh, the Dowager Duchess of Kingston,
Countess of Bristol, was tried and found guilty of the charge of bigamy
by her peers, the members of the House of Lords. The criminal trial at
the Westminster Hall, which was adapted to serve as a courtroom, 3 be-
fore King George III, the senior judiciary, with 117 peers of the realm
acting as jury, and some 400 ticket-paying spectators lasted 5 days
(15, 16, 19, 20 and 22 April 1776).4 In the course of the proceedings,5
while being cross-examined, Mr Caesar Hawkins (1711–1786)6 asked
the court whether he, as a surgeon, could be made to disclose in court
‘anything that came before me in a confidential trust in my possession,
For one of several contemporary accounts of the trial written by members of the
gallery, see: Anna Larpent, The Production of a Female Pen (Beinecke; Facsimile edition,
2004).
4
In 1775, in the House of Lords, in the course of Debates Relative to the Trial of the
Duchess of Kingston (20 November 1775), Lord Mansfield, the Chief Justice of the
King's Bench unsuccessfully argued against holding the trial. Great Britain Parliament,
(1813) 18 The Parliamentary History of England from the Earliest Period to the Year 1803
(London, T.C. Hansard 1774–1777), 1108-09.
5
Trial of Elizabeth Duchess Dowager of Kingston for Bigamy as printed by the Order of
the House of Peers in 1776 by Charles Bathurst in London, reproduced (with later in-
terpolations) in Duchess of Kingston's Case (1776) reproduced in 20 Howell's State Trials
355 hereinafter (1776) 20 St. Tr. 355. See also: [1775–1802] All Eng. Rep. 623 and shorter
versions: 168 Eng. Rep. 175; [1776] 1 Leach 146.
6
Sir Caesar Hawkins was serjeant-surgeon to King George II and King George III. He
was created a baronet in 1778. Anonymous, Nova et Vetera. The Serjeant-Surgeons of
England and their Office, 1 Brit. Med. J. (1900), 583.

0160-2527/$ – see front matter © 2012 Published by Elsevier Ltd.

http://dx.doi.org/10.1016/j.ijlp.2012.09.005

Please cite this article as: Mendelson, D., The Duchess of Kingston's Case, the ruling of Lord Mansfield and duty of medical confidentiality in
court, International Journal of Law and Psychiatry (2012), http://dx.doi.org/10.1016/j.ijlp.2012.09.005
2 D. Mendelson / International Journal of Law and Psychiatry xxx (2012) xxx–xxx
… consistent with my professional honour?’7 Lord Mansfield's response
to Mr Hawkins' question is the subject of this article.
The information in the surgeon's possession related to Elizabeth
Chudleigh (1720–1788), Augustus John Hervey, afterwards 3rd Earl of
Bristol (1724–1779), and Evelyn Pierrepont, 2nd Duke of Kingston-
upon-Hull (1711–1773). Their story is fascinating and an essential back-
ground to the legal discussion.
Often referred to as ‘notorious’,8 Elizabeth Chudleigh was a profes-
sional female courtier. Fiercely independent, she relied on her talents,9
beauty and charm rather than nepotism or charity to overcome genteel
poverty,10 to gain one of the few well-paid yet honourable positions
open to women in the 18th century,11 and to raise her status from a
commoner12 to a peeress of the realm. The events that eventually led
to her trial were very much a consequence of social and legal conditions
of Georgian England.
In 1744, Elizabeth, née Chudleigh, secretly married the Honour-
able Augustus John Hervey, 13 the 2nd son of Lord Hervey, and a Lieu-
tenant on H.M.S. Cornwall. The marriage ceremony took place at her
aunt's private chapel and was conducted by the Reverend Amis of the
parish church of Lainston, Hampshire. Ann Cradock, the aunt's maid,
served as witness. Since neither party was resident in the Lainston
Parish, no banns of matrimony were published, no prior marriage li-
cence obtained, and no entry of the private covenant made in the
Lainston Parish Marriage Register; the marriage would have been
classified as ‘clandestine’ under the Marriage Act 1753 26 Geo 2 c 33
(UK).
Though they never lived under the same roof, and Elizabeth never
called herself Mrs Hervey (so as not to endanger her salaried position
7
(1776) 20 St. Tr. 355 at 572.
8
In 1775, Samuel Foote wrote a defamatory comedy titled Trip to Calais, in which
Elizabeth was caricatured as Kitty the Crocodile. Some of her early ‘biographies’ includ-
ed ‘yellow press’ pamphlets, such as Anonymous, An Authentic Detail of Particulars
Relative to the Late Duchess of Kingston (London, Kearsley 1788); others were sancti-
monious ‘morality’ tales: C.E. Pearce, The Amazing Duchess; Being the Romantic History
of Elizabeth Chudleigh, Maid of Honour, the Hon. Mrs. Hervey, Duchess of Kingston, and
Countess of Bristol (London, Paul & Co. 1911); for ill-researched stories of mainly fic-
tional scandals see: Beatrice Curtis Brown, Elizabeth Chudleigh Duchess of Kingston
(London, Gerald Howe 1927). Lewis Melville (Ed) in his historical introduction to the
transcript of the trial relied almost exclusively on the lurid gossip of 18th century
pamphlets in his L. Melville, Trial of the Duchess of Kingston (Edinburgh and London,
William Hodge & Co. Ltd. 1927).
9
See Elizabeth's copious correspondence in English and French with family and
friends, including her long-term employer, Augusta, Princess of Wales; the Duke of
Newcastle; Catherine the Great of Russia; and Maria Antonia, Electress of Saxony.
Elizabeth Mavor, The Virgin Mistress A study of Survival (New York, Doubleday & Co.
1964); Doris Leslie, The Incredible Duchess; The Life and Times of Elizabeth Chudleigh
(London, Heinemann 1974); Claire Gervat, Elizabeth: The Scandalous Life of the Duchess
of Kingston (London, Century 2003); Matthew J. Kinservik, Sex, Scandal, and Celebrity
in Late Eighteenth-Century England (New York, Palgrave Macmillan 2007).
10
She became wealthy in her own right through property investments, always
conducted under the name of ‘Elizabeth Chudleigh, Spinster’.
11
In 1743 Elizabeth Chudleigh became Maid-of-Honour to Augusta, Princess of Wales
(1717–1772), the consort of Frederic, the Prince of Wales (1719–1772). The position
provided her with a salary of £200 a year, and Elizabeth held it until her marriage to
the Duke of Kingston in 1769.
12
Elizabeth was born into a family of old Devonshire gentry; however, her father,
Colonel Thomas Chudleigh, a Lieutenant-Governor of the Royal Hospital in Chelsea, lost
all his money in the South Sea Bubble. He died when she was six, leaving his widow,
Henrietta Chudleigh, and two children (Elizabeth's brother, Sir Thomas Chudleigh, died
in 1741 at the age of twenty-two while fighting in the War of the Austrian Succession).
With few assets and very scanty income. Henrietta derived some income by sub-letting
rooms in her house in Mayfair.
13
Augustus John Hervey enjoyed a distinguished and lucrative naval career, and became
a Member of Parliament from 1757 until 1775 (when he succeeded his brother to the
Earldom of Bristol); he was appointed Vice Admiral of the Blue in 1778. He also acquired
a well-deserved nickname as the ‘naval Casanova’. Augustus Hervey, Augustus Hervey's
Journal: The Adventures Afloat and Ashore of a Naval Casanova (London, Chatham
Publishing, 2002, David Erskine ed.); Michael Holmes, Augustus Hervey, A Naval Casanova
(Edinburgh, Cambridge, The Pentland Press 1996).
Please cite this article as: Mendelson, D., The Duchess of Kingston's Case, the ruling of Lord Mansfield and duty of medical confidentiality in
court, International Journal of Law and Psychiatry (2012), http://dx.doi.org/10.1016/j.ijlp.2012.09.005
at Court, which was officially only open to unmarried women), 14 both
parties considered their secret marriage valid. 15 On 2 November 1747
Elizabeth gave birth to their child, who was baptised Henry Augustus,
son of the Hon. Augustus Hervey, by Augustus Hervey's brother, the
Hon Rev. Henry Aston. 16 Caesar Hawkins, already a renowned sur-
geon, 17 was present at the delivery. 18 As was the custom of the day,
the baby was put out to nurse. He died 11 weeks later and was buried
on 21 January 1748. 19 At this point, the already strained spousal rela-
tionship ended. 20
In 1751 Elizabeth formed a close, loving, and long-lasting relation-
ship with Evelyn Pierrepont (Pierpoint), Duke of Kingston-upon-Hull.
However, in 1759, without informing either her lover or husband, she
retrospectively registered her marriage to Hervey in the Book of Mar-
riages, Births and Burials at the Lainston parish church, again using
Ann Cradock as witness. 21
By 1768, both parties wished their defunct marriage to be formally
dissolved; but when Caesar Hawkins, acting on behalf of Augustus
Hervey, conveyed the latter's request that Elizabeth agree to a di-
vorce, 22 she refused to go through the humiliating procedure. In the
18th century divorce proceedings required the proof of adultery
through action for criminal conversation, 23 and could only be granted
by an Act of the Parliament. 24 Rather than subject their lives to very
public scrutiny, in November 1768, Elizabeth, with Augustus John
Hervey's agreement, instituted in the Consistory Court of the Bishop
of London a suit of Jactitation of Marriage (a false assertion that one
is married to someone to whom one is not in fact married). 25 Her
lawyers complained that Mr Hervey improperly and without founda-
tion had laid claim to her as his wife (jactitate that she was his wife).
By 1768, both the aunt and Rev. Amis were dead and, since Ann
Cradock conveniently refused to testify, Augustus Hervey was ‘unable’
to produce proof that the marriage took place.26 On 10 February 1769,
the Consistory Court pronounced the sentence stating that the pre-
sumption of Elizabeth Chudleigh's marriage to Mr Hervey did not
arise.27 On 8 March 1769, by special licence from the Archbishop of
14
Augustus Hervey, though a second son of the immensely wealthy Earl of Bristol, at
the beginning of his naval career could only rely on his meagre Navy Lieutenant's sal-
ary. In time, Augustus would become very wealthy in his own right through capture of
enemy ships, which were then sold as prizes. Id. Holmes.
15
(1776) 20 St. Tr. 355 at 577, testimony of Caesar Hawkins. Eve Tavor Bannet, The
Marriage Act of 1753: ‘A most cruel law for the Fair Sex’, 30 Eighteenth-Century Studies
(1997), 233; Hazel D. Lord, Husband and Wife: English Marriage Law from 1750: A Bib-
liographic Essay, 11 S. Cal. Rev. L. & Women's Stud. (2001) 1.
16
Gervat, supra, note 9 at 36.
17
Sir Caesar Hawkins was elected surgeon to St George's Hospital in 1735, and held
this office until 1774. He was described as a ‘good practical’ surgeon, but ‘merely [a
man] of experience’, lacking ‘that scientific mind and mode of working which [John]
Hunter possessed’. In George G.B. Macleod, The Four Apostles of Surgery: An Historical
Sketch, 2 Brit. Med. J. (1877), 433.
18
(1776) 20 St. Tr. 355 at 572–585, testimony of Caesar Hawkins.
19
Gervat, supra, note 9 at 36.
20
It appears that the last time Augustus paid Elizabeth's debts of £500 and £800 was
in 1747 and 1748, respectively. See Hervey (2002), supra note 13 at 68, 76.
21
(1776) 20 St. Tr. 355 at 554; 592. According to the prosecution, Elizabeth registered
the marriage in 1759, believing that the second Earl of Bristol was dying and Augustus
Hervey would imminently succeed to the title and estates of his unmarried brother.
22
Id. at 578.
23
Hervey sent Ann Cradock to inform Elizabeth that he wanted a divorce: (1776) 20
State Trials 355 at 562. According to Ann Cradock's testimony, when she told Elizabeth
that ‘Mr Hervey … was determined to be … divorced and that she had it in her own
power to assist him … the lady replied, was she to make herself a whore to oblige
him?’ (1776) 20 State Tr. 355 at 562.
24
Danaya C. Wright, The Crisis of Child Custody: A History of the Birth of Family Law
in England, 11 Colum. J. Gender & L. (2002) 175 at 176.
25
Henry A. Finlay, Jactitation and Restitution of Conjugal Rights: An Epitaph, 11 U.
West. Austr. L. Rev. (1974) 264.
26
Hervey filed a nominal cross-libel claiming restoration of conjugal rights; however,
since the 1759 retrospective registration of marriage was not mentioned, he was
unsuccessful.
27
(1776) 20 St. Tr. 355 at 389–390.
 D. Mendelson / International Journal of Law and Psychiatry xxx (2012) xxx–xxx
Canterbury, she married Evelyn Pierpoint, Duke of Kingston, an eminent
connoisseur of art, and one of the wealthiest men in Georgian England.
Augustus Hervey did not re-marry.28 The Duke died in 1773 after a se-
ries of strokes; he left Elizabeth his enormous fortune for the period of
her widowhood.29
Not long after his death, the Meadows, the family of the Duke's sis-
ter, whom he had effectively disinherited, alleged 30 that Elizabeth's
first marriage was never lawfully dissolved and, therefore, by marry-
ing Evelyn Pierpoint she committed the clergyable felony 31 of biga-
my. 32 The Meadows hoped (erroneously as it turned out) that if
Elizabeth were found guilty of bigamy they would be able to chal-
lenge the Duke's will successfully, and obtain immediately the receipt
of the vast Pierrepont estates (rather than having to wait until after
Elizabeth's death). 33
The allegation eventually led to the trial, at which the testimony
of Ann Cradock proved pivotal to establishing the existence of mar-
riage between Elizabeth and Augustus Hervey, as well as their collu-
sion in the suit for Jactitation of Marriage. The trial ‘was regarded as
an amusing farce’ 34 because in the 18th century, while female com-
moners found guilty of bigamy were sentenced to imprisonment or
searing of the hand, peeresses of the realm could plead the benefit of
peerage. Though in dispute was her marriage to the Duke — and
thus her title — in accordance with the principle of the English law
that a person is innocent until proven guilty, Elizabeth continued
to hold the status of a peeress throughout the proceedings. The ver-
dict of bigamy meant that she legally lost her title of Duchess. How-
ever, since she was apparently still validly married to Augustus
Hervey who had succeeded to the Earldom of Bristol in March
1775, her title of Countess and the status of peeress of the realm
remained. Consequently, Elizabeth successfully pleaded the benefit
of peerage, curtsied, and was discharged without any penalty but
her conscience. 35
2. Medical confidentiality: medical and legal understanding thereof
This then was the setting for the ex tempore ruling made by Lord
Mansfield in the course of the trial on the question of whether a med-
ical witness is compellable to divulge information relating to the ex-
istence of the marriage and the birth of a child. It arose when Mr
Dunning, counsel for the Crown asked Caesar Hawkins ‘whether he
28
Augustus Hervey established a long-term relationship with the widowed Mrs
Nesbitt, but did not marry her.
29
In the will of 1770, Evelyn Pierpoint bequeathed Elizabeth all his real property for
the period of her widowhood (which brought her the then huge income of about
£16,000 a year), and all his personal estate forever. Meadows v. Kingston (Duchess of)
(1775) 27 Eng. Rep. 487.
30
They were probably alerted to the existence of the Register at the Lainston parish
church by Ann Cradock; she turned to the Meadows after her approach to Elizabeth
for hush money was rebuffed.
31
Clergyable felonies were capital crimes, for which the ‘benefit of clergy’ was avail-
able. Under the benefit of clergy, once convicted, a prisoner able to read the first verse
of Psalm 51 was released from the jurisdiction of secular courts. The benefit of clergy
was abolished in 1827. John Hostettler, Fighting for Justice (Winchester, U.K., Waterside
Press 2006) 162. Colin Rhys Lovell, The Trial of Peers in Great Britain, 55 The Am. Hist.
Rev. (1949) 69 at 74; Arthur Lyon Cross, The English Criminal Law and Benefit of Clergy
during the Eighteenth and Early Nineteenth Century, 22 The Am. Hist. Rev. (1917) 544.
32
The indictment: ‘That Elizabeth, the wife of Augustus John Hervey, Esq of Hanover-
square, in the county of Middlesex, being then married, and then the wife of the said
Augustus, feloniously did marry and take to husband Evelyn Pierpoint, Duke of Kingston,
the said Augustus John Hervey being then alive, &c.’ (1776) 20 State Tr. 355 at 358.
33
Meadows v. Kingston (Duchess of) (1775) 27 Eng. Rep. 487.
34
John, Lord Campbell, 2 The Lives of the Chief Justices of England (London, John Murray
1849) 500.
35
After the trial, in rather dramatic circumstances, with the help of the Duke of New-
castle, Elizabeth left England. She stayed in St Petersburg as personal guest of the Em-
press of Russia, Catherine II, who gave her an estate in Livonia. However, Elizabeth also
travelled through other countries; she spent considerable time in Italy and in Paris,
where she died.
Please cite this article as: Mendelson, D., The Duchess of Kingston's Case, the ruling of Lord Mansfield and duty of medical confidentiality in
court, International Journal of Law and Psychiatry (2012), http://dx.doi.org/10.1016/j.ijlp.2012.09.005
3
knew from the parties of any marriage between them’, and the latter
replied:
‘I do not know how far anything that has come before me in a con-
fidential trust in my possession should be disclosed, consistent
with my professional honour.’ 36
Surprised by the response, Mr Dunning turned to the bench and
said:
‘I trust your Lordships will see nothing in my question that can be-
tray confidential trust, or dishonour Mr Hawkins in giving it. My
question is simply whether Mr Hawkins knows, from the parties,
of any marriage between them’. 37 [emphasis added]
The surgeon's references to confidentiality and honour, clearly,
took Mr Dunning by surprise, for the question did not relate to any
surgical, medical, or mental condition of Caesar Hawkins' patients,
nor to any disclosures made to him in a ‘confidential trust’. Rather,
the information to be elicited related to the personal status of the
parties. From the legal point of view, the enquiry was not unexpect-
ed, given that in 1747 Caesar Hawkins was present at the birth of
their child in his capacity as surgeon. Nor did his conduct as an inter-
mediary between Augustus and Elizabeth in 1768 regarding the
husband's request for divorce, at least on the face of it, fall within
any professional therapeutic relationship. But this was not necessar-
ily the medical practitioner's perspective.
In the 18th century, leading surgeons, such as Caesar Hawkins, strove
to become a class of independent professionals. In 1745 they broke away
from the Company of Barber-Surgeons (created in 1540) and formed the
Company of Surgeons, expecting that it would eventually evolve into a
College38 modelled on the Royal College of Physicians. Since the latter
was preoccupied with the ethics and standards of medical practice,
the surgeons were very conscious of these matters in the context of sur-
gical practice. Caesar Hawkins probably believed that his response to
Mr Dunning's question would involve a breach of medical ethics.
The duty of medical confidentiality as a fundamental principle of med-
ical ethics went back to the Hippocratic Oath,39 which was known in
England since the Middle Ages.40 Its penultimate clause imposes upon
the physician an obligation to keep secret all that he observed or became
aware of during the course of treatment, and also commands the doctor
not to divulge any information gathered outside of his medical activity if
it may relate to the professional relationship with the patient.41
John Gregory (1724–1773), an eminent Scottish physician, pub-
lished the very influential Lectures on the Duties and Qualifications of
a Physician in 1772. 42 Without specifically referring to the Hippocratic
Oath, 43 he emphasised that it was essential for physicians to have
36
(1776) 20 St. Tr. 355 at 572.
37
Id. at 572.
38
In 1800 the Company was granted a Royal Charter to become the Royal College of
Surgeons in London, and in 1843 a further charter granted it the title of the Royal Col-
lege of Surgeons of England, http://en.wikipedia.org/wiki/Royal_College_of_Surgeons_
of_England#_note-0.
39
Hippocratic Oath, the first known code of professional ethics and etiquette pertaining
specifically to the medical profession forms part of the Corpus Hippocraticum written and
compiled between 460 and 300 B.C.E.
40
See: Carlos R. Galvao-Sobrinho, Hippocratic Ideals, Medical Ethics and the Practice
of Medicine in the Early Middle Ages: the legacy of Hippocratic Oath, 51 The J. Hist.
Med.& Allied Sci. (1996) 438; Danuta Mendelson, Medical Duty of Confidentiality in
the Hippocratic Tradition and Jewish Medical Ethics, 5 J. L. & Med. (1998) 227.
41
‘What I see or hear in the course of the treatment or even outside of the treatment
in regard to the life of men, which on no account one must spread abroad, I will keep to
myself holding such things shameful to be spoken about.’ Transl. Ludwig Edelstein, An-
cient Medicine (1987) 6.
42
John Gregory, Lectures on the Duties and Qualifications of a Physician (London, W
Strahan & T Cadell 1772), repr. in L.B. McCullough, ed. John Gregory's Writings on Med-
ical Ethics and Philosophy of Medicine (Dordrecht, The Netherlands, Kluwer Academic
Pub. 1997), 26–27.
43
For a discussion see Mendelson, supra note 40 at 234.
4 D. Mendelson / International Journal of Law and Psychiatry xxx (2012) xxx–xxx

empathy for their patients and to observe the obligation of secrecy. Caesar Hawkins must have been acutely aware that his testimony
According to John Gregory: would help to incriminate Elizabeth, who had been his patient. And
he might well have agreed with Henry Fienes Pelham, Duke of New-
‘A physician, by nature of his profession, has many opportunities of
castle, one of the 117 Lords acting as members of the jury, who, when
knowing the private characters and concerns of the families in
pronouncing his verdict on the Duchess, varied the usual formula:
which he is employed. Besides what he may learn from his own ob-
‘guilty, upon my honour’ to ‘Guilty erroneously, but not intentionally,
servation, he is often admitted to the confidence of those, who perhaps
upon my honour’. 50
think they owe their life to his care. He sees people in the most dis-
The lawyers saw the matter differently — no evidentiary privilege
advantageous circumstances, very different from those in which the
extended to any demographic and personal status information on the
world views them; oppressed with pain, sickness, and low spirits …
public record. This was the view of Lord Mansfield when, speaking for
Hence appears how much the characters of individuals, and the
the Court, he affirmed that Caesar Hawkins could be compelled to an-
credit of families, may sometimes depend on the discretion, secrecy
swer the question at the bar. It is important to quote Lord Mansfield
and honour of a physician.’44 [emphasis added]
CJ's ruling in full, because subsequent citations of the short final par-
agraph had the effect of totally distorting its meaning. His Lordship
John Gregory then added:
said:
‘Secrecy is particularly requisite where women are concerned. …
‘I suppose Mr Hawkins means to demur to the question on the
there are certain circumstances of health, which, though in no re-
ground that it came to his knowledge some way from his being
spect connected with her reputation, every woman, from natural
employed as a surgeon for one or both of the parties; and I take
delicacy of her sex, is anxious to conceal; and, in some cases, the
for granted, if Mr Hawkins understands that it is your Lordships'
concealment of these circumstances may be of consequence to
opinion that he has no privilege on that account to excuse himself
her health, to her interest, and to her happiness.’
from giving an answer, that then, under the authority of your
Lordships' judgment, he will submit to answer it. Therefore, to sa-
Caesar Hawkins may well have had in mind this passage from John
ve your Lordships the trouble of an adjournment, if no Lord differs
Gregory's Lectures when he referred to the ‘confidential trust’ and his
in opinion, but thinks that a surgeon has no privilege to avoid giv-
‘professional honour’. 45 For John Gregory considered that the obliga-
ing evidence in a Court of justice, but is bound by the law of the
tion of medical confidentiality admitted no exceptions, 46 presumably
land to do it; (if any of your Lordships think he has such a privi-
extending to court testimony. His approach reflected a general as-
lege, it will be a matter to be debated elsewhere); but if all your
sumption that medical practitioners testifying in court were not com-
Lordships acquiesce, Mr Hawkins will understand that it is your
pelled ‘to divulge the secrets of their patients, reposed in them in the
judgment and opinion that a surgeon has no privilege, where it is
course of professional confidence’ 47 without the consent of their pa-
a material question, in a civil or criminal cause, to know whether
tients. That Caesar Hawkins regarded himself under duty to protect
parties were married, or whether a child was born, to say that his in-
confidential information he gained about or from his patients is
troduction to the parties was in the course of his profession, and in
clear from his reply to the question about the time and place of the
that way he came to the knowledge of it. I take it for granted that,
child's birth:
if Mr Hawkins understands that, it is a satisfaction to him, and a
‘… If I ever put down anything in writing at the time, I might have clear justification to all the world. If a surgeon was voluntarily to
destroyed it afterwards, according to my custom, which is to de- reveal these secrets, to be sure, he would be guilty of a breach of
stroy papers that are of no use, and which might be improper to honour, and of great indiscretion; but, to give that information in
be found after my decease.’ 48 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.’ 51
The Hippocratic Oath's conception of medical confidentiality and
John Gregory's interpretation of it have a much wider ambit than mere- When taken out of context, the final paragraph — a rider designed
ly the information conveyed by the patient to the physician in the to mollify the surgeon and directed specifically to him — creates an
course of their therapeutic relationship. The medical duty of confidenti- impression of having a much wider scope than Lord Mansfield and
ality was considered not just a matter of etiquette or professional pru- their Lordships in the Duchess of Kingston's Case had intended; for
dence, but the foundation that underpinned the relationship of trust the actual holding of the court was that:
or fiducia between the doctor and the patient. The salient feature of a
‘A surgeon has no privilege where it is a material question in a civil
trusting relationship is the reliance by one party on the ethical conduct
or criminal cause to know whether parties were married or wheth-
of another. 49 This involves fulfilment by physicians of their ethical duty
er a child was born, for he is bound to give that information in a
of confidentiality as well as the obligation to act in accordance with the
court of justice when asked to do so.’52 [emphasis added]
principle of non-maleficence, encapsulated in the Latin maxim primum
(or saltem) non nocere [above all, at least do no harm]. Ethical medical
In other words, the original ruling was limited to the compellability of
practitioners would render assistance by avoiding conduct that may
testimony by a medical witness about the marital status of his patients
permit detriment or cause harm to their patients' best interests.
(and the birth of a child). It was specifically to ‘these secrets’, and not
any other information obtained by surgeons from patients in the course
44
Gregory, supra, note 42 at 172. of their professional relationship, that Lord Mansfield referred to in the
45
Id. at 26–27. final passage. As Caesar Hawkins testified under cross-examination,
46
Laurence B. McCullough, John Gregory and the Invention of Professional Medical their marital status and the birth of a child were ‘secrets’ only because
Ethics and the Profession of Medicine (Dordrecht, The Netherlands, Kluwer Academic
Elizabeth and Augustus wished at the time to conceal them:
Pub. 1998), 223.
47
John Ayrton Paris & John Samuel Martin de Grenier Fonblanque, 1 Medical Jurispru-
dence (London, W. Phillips 1823), 160.
48
(1776) 20 St. Tr. 355 at 577. Apart from confirming the facts about the existence of
the marriage, the birth and death of the child, throughout a lengthy cross-examination,
Caesar Hawkins did not reveal any confidential information he might have been privy
50
to by virtue of his professional therapeutic relationship with the parties (in his non- (1776) 20 St. Tr. 355 at 625.
51
professional capacity, he acted as a go-between for Elizabeth and her first husband). Id. at 573. Emphasis provided by the author.
49 52
Mendelson, supra note 40. Id. at 573.

Please cite this article as: Mendelson, D., The Duchess of Kingston's Case, the ruling of Lord Mansfield and duty of medical confidentiality in
court, International Journal of Law and Psychiatry (2012), http://dx.doi.org/10.1016/j.ijlp.2012.09.005
 D. Mendelson / International Journal of Law and Psychiatry xxx (2012) xxx–xxx
‘Was the marriage, and the birth of that child, at that time kept se-
cret? — I was told it was to be a secret.’ 53
Neither fact amounted to a medical condition. The 1759 registra-
tion of Elizabeth's previously clandestine marriage to Hervey in the
Book of Marriages, Births and Burials at the Lainston parish church
made it official. The 1747 baptismal certificate of their child, Henry
Augustus Hervey, was on the public record; likewise, the 1748 regis-
tration of his death.
In Lord Mansfield’s view, the subject-matter of the specific ques-
tion that the medical witness was compelled to answer involved pub-
licly available information, and therefore—uncontroversial. It did not
merit an adjournment of the Court. The evidentiary status of the in-
formation (on the public record) that the Court wished to elicit
from Mr Hawkins explains the impatience with which Lord Mansfield
handled the matter:
‘to save your Lordships the trouble of an adjournment, if no Lord
differs in opinion, but thinks that a surgeon has no privilege to
avoid giving evidence in a court of justice, but is bound by the
law of the land to do it; (if any of your Lordships think he has such
a privilege, it will be a matter to be debated elsewhere, but) if all
your Lordships acquiesce …’ 54
Thus, the content of the surgeon's query was approached by the
court strictly from the point of view of its evidentiary status: regis-
tered marriages and births did not attract privilege of confidentiality
in the law of evidence.
The matter sought to be elicited by Mr. Dunning did not raise any
novel legal questions nor did it depart from established precedents. In
the late eighteenth century, the theory of precedent began to be taken
very seriously; Sir William Blackstone discussed it in his Commentar-
ies, 55 and in R. v. Wilkes (1770) 4 Burrow 2527; 98 Eng. Rep. 327, Lord
Mansfield emphasised its importance as the fundamental element of
justice:
‘we must act alike in all cases of like nature: and what we do now,
ought to be agreeable to former precedents, and will become a
precedent in future cases of a like kind.’ 56
The Wilkes case, which involved questions relating to the law of
outlawry, serves as an illustration of Lord Mansfield's practical adher-
ence to the principle that knowledge of precedents is the essential
prerequisite to validity of judicial determinations:
‘from the able assistance of those who have taken the trouble to
make searches and to collect materials, I think I am now thorough-
ly master of a subject [of outlawry], which I am not at all ashamed
to say I knew very little of before: and I never give a judicial opin-
ion upon any point, until I think I am master of every material ar-
gument and authority relative to it. It is not only a justice due to
the Crown and the party, in every criminal cause where doubts
arise, to weigh well the grounds and reasons of the judgment;
but it is of great consequence, to explain them with accuracy and
precision, in open Court; especially if the questions be of a general
tendency, and upon topics never before fully considered and set-
tled; that the criminal law of the land may be certain and
known.’ 57
53
Id. at 574.
54
Id. at 573.
55
William Blackstone, 1 Commentaries on the Laws of England (Oxford, Clarendon
Press, 1st ed. 1758) 69. Discussed by Cecil H. Fitfoot, Lord Mansfield (Oxford, Clarendon
Press 1936), 200–201.
56
R. v. Wilkes (1770) 4 Burrow 2527 at 2543; 98 Eng. Rep. 327 at 335-6.
57
Id. at 2549; 339.
Please cite this article as: Mendelson, D., The Duchess of Kingston's Case, the ruling of Lord Mansfield and duty of medical confidentiality in
court, International Journal of Law and Psychiatry (2012), http://dx.doi.org/10.1016/j.ijlp.2012.09.005
5
There are other cases, in which Lord Mansfield CJ, if in doubt,
would search for and examine the relevant precedents 58; yet even
the most comprehensive report of the Duchess of Kingston's Case 59
does not provide any precedent as an authority for the ruling. 60
Moreover, at least one contemporary report did not even transcribe
Caesar Hawkins's query and Lord Mansfield's response. 61 The princi-
ple that information on public record attracts no evidentiary privilege
is so self-evident that it does not need authority of precedent.
The bracketed clause within the body of the ruling, ‘if any of your
Lordships think he has such a privilege, it will be a matter to be debat-
ed elsewhere’, suggests that Lord Mansfield assumed that the issue of
privilege relating to non-public information obtained in the context
of professional relationship between patients and medical practi-
tioners would be debated when an appropriate case came before
the court. This did not happen.
Instead, the ruling in the Duchess of Kingston Case, which, as a pre-
cedent, should have been confined to a proposition that medical prac-
titioners cannot claim privilege on behalf of patients in relation to
matters of public knowledge, came to be cited as the primary author-
ity for the doctrine that, while the common law recognised the attor-
neys' privilege of client confidentiality, a similar privilege did not
apply to confidential communications within a therapeutic relation-
ship. 62
3. Subsequent history of Lord Mansfield's Ruling
Wilson V. Rastall (1792) 4 Term. Rep. 753 at 760; 100 Eng. Rep.
1283 at 1287 was the first case in which the difference in the ap-
proach of the common law between the two kinds of confidential
communications — legal and medical — was considered unsatisfacto-
ry. The action involved recovery of penalties from Rastall under The
Sale of Offices Act 1551 (U.K.) 5 & 6 Edw. 6 c. 16, known as the Bribery
Act. 63 In his judgment, Buller J, having held that the legal professional
privilege belonged to the client and was confined to the counsel, so-
licitors and attorneys acting in professional capacity, observed that:
‘There are case[s] to which it is much lamented that the law of
privilege is not extended; those in which medical persons are
obliged to disclose the information they acquire by attending in
their professional characters. This point was very much consid-
ered in The Duchess of Kingston's Case, where Sir C. Hawkins, who
had attended the Duchess as a medical person, made the objection
himself, but was over-ruled, and compelled to give evidence
against the prisoner.’ 64
58
For example, in Pugh v. Duke of Leeds (1777) 2 Cowper 715; 98 Eng. Rep. 1323, Lord
Mansfield adjourned the court to research every case decided between 1562 and 1777
relating to the issue of commencement leases in possession and in reversion (at 716;
1324); cited in Fitfoot, supra, note 55 at 213. See also, John Oldham, 1 The Mansfield
Manuscripts and the Growth of English Law in the Eighteenth Century (1992) at 102.
59
(1776) 20 St. Tr. 355.
60
Daniel W. Shuman, in The Origins of the Physician–Patient Privilege and Profes-
sional Secret, 39 Sw L. J. (1985), 661–687 at 673, referring to Rex v. Duchess of Kingston
(1776) 20 St. Tr. 355, writes that ‘The Duchess of Kingston's Case cites only one other
case involving physician testimony in support of its rejection of a physician–patient
privilege. That case, The Trial of Lawrence Earl Ferrers, was decided in 1760.’ The Trial
of Earl Ferrers' (1760) 19 How. St. Tr. 885 is referred to once in the Duchess of Kingston
Case, (1776) 20 St. Tr. 355 at 639, but only in connection with punishments meted out
to peers; the issue had nothing whatsoever to do with physicians' testimony (Ferrers'
Case concerned opinion evidence, not disclosure of confidential information). See,
Danuta Mendelson, The Expert Deposes but the Court Disposes: The Concept of Malin-
gering and the Function of Medical Expert Witness in the Forensic Process, 18 Interna-
tional J. L. & Psychiatry (1995), 425–436.
61
The Duchess of Kingston's Case [1776] 1 Leach 146.
62
See, supra, note 2.
63
Rastall was convicted for bribing voters at the election for the borough of Newark
upon Trent, to vote for one of the candidates.
64
The footnote in the Wilson v. Rastall (1792) 100 Eng. Rep. 1283 at 1287 reads: ‘11
St. Tr. 243. See also the examination of Lord Barrington, page 246, 7.’
6 D. Mendelson / International Journal of Law and Psychiatry xxx (2012) xxx–xxx
Wilson v. Rastall (but not the Duchess of Kinston) was relied upon
by the Court of Exchequer in Falmouth (Earl of) v. Moss (1822) 11
Price, 455; 147 Eng. Rep. 530, which concerned a dispute relating to
the lease of land. 65 Mr Baron Garrow, having confirmed at 470-71;
535 that the evidentiary privilege was strictly confined to ‘Counsel,
Attorneys and Solicitors’ commented that:
‘Cases of the most deplorable hardship may arise, and very often
do, and that argument has been much pressed. What can be a
stronger appeal to the feelings on this question than the sensibly
delicate situation in which men of the medical profession are so
frequently placed, to whom communications of the most anxious
kind must often be made, admitting of not a moment's delay,
and frequently by the other sex, having the strongest claims on
their confidence and fidelity: and yet, we have seen that, on au-
thority, they are liable to be called on to disclose with bleeding
hearts, the painful secrets which have been necessarily entrusted
to them, and under the most distressing circumstances; but sacred
as those communications must ever be held, the ends of truth and
justice have been hitherto deemed paramount.’
Purple prose aside, Mr Baron Garrow's observations regarding
forced breaches of confidentiality in the name of ‘truth and justice’
(no matter the cost in personal anguish, tragedy and loss of trust in
the therapeutic relationship), would become powerful arguments
for statutory enactments protecting patient–doctor communications.
The final paragraph of Lord Mansfield's ruling was cited for the first
time as an authority to compel a medical practitioner to disclose infor-
mation provided by a patient in a criminal trial in R v. Gibbons (1823) 1
Car & P 97; 171 Eng. Rep. 1117. Elizabeth Gibbons was tried at the Old
Bailey for the murder of her bastard child. The surgeon, Mr Cozens, spe-
cifically objected to giving evidence about ‘certain confessions made by
the prisoner to him’ on the ground that at the time ‘he was attending …
[her] in the capacity of a surgeon’.66 However, Park J 67 declared: ‘that
[was] no sufficient reason to prevent a disclosure for the purposes of
justice.’68 The Gibbons case exposed the arbitrariness and inconsistency
of this rule. For, if Elizabeth Gibbons had made the confessions as a cli-
ent of her defence counsel rather than a patient of a surgeon,69 the
counsel would have been able to rely successfully on the legal profes-
sional privilege affirmed in Wilson v. Rastall.
The Gibbons case — a criminal trial at first instance — did not con-
stitute an authoritative precedent under the system of stare decisis.
65
The court determined that the privilege of confidentiality did not extend to the
Steward who administered the plaintiff's leases.
66
By the second decade of the nineteenth century, the accused could plead privilege
against self-incrimination and remain silent on the witness stand. See in general, John
H. Langbein, Privilege and Common Law Criminal Procedure: The Sixteenth to the
Eighteenth Centuries in The Privilege Against Self-Incrimination (Richard H. Helmholz,
et al. eds. Chicago, London, The University of Chicago Press 1997) 82–109.
67
John Henry Wigmore, 4 A Treatise on the System of Evidence in Trials at Common
Law, Including the Statutes and Judicial Decisions of all Jurisdictions of the United States,
‘Communications between Physician and Patient’, (Boston, Little, Brown, and Company
1905) §2380 at 3347. Wigmore wrongly refers to the case as R. v. Powell (the defendant
was charged with stealing two hen eggs). He also erroneously attributes the denial of
patient–prisoner's privilege in R. v. Gibbons (1823) 1 Car. & P. 97; 171 Eng. Rep. 1117 to
Parke J who never served as a judge at the Old Bailey; he was appointed to the Court of
King's Bench in 1828.
68
R. v. Gibbons (1823) 1 Car. & P. 97; 171 Eng. Rep. 1117. Elizabeth Gibbons was ac-
quitted on other grounds.
69
In Rex v. Hannah Kingston (1830) 4 Car. & P. 387; 172 Eng. Rep. 752, a young girl
was charged in the Court of Nisi Prius with administering arsenic with intent to mur-
der. While in prison, she was seen by a surgeon who told her: ‘you are under suspicion
of this, and you had better tell all you know’. She then ‘made a statement’ to him. Pos-
sibly because the ‘statement’ had the colour of a forced confession, ‘Mr. Justice Parke,
having conferred with Mr. Justice Littledale, held, that evidence of this statement
was inadmissible’. Hannah was found not guilty. The court did not refer to either the
Duchess of Kingston, or the Gibbons case.
Please cite this article as: Mendelson, D., The Duchess of Kingston's Case, the ruling of Lord Mansfield and duty of medical confidentiality in
court, International Journal of Law and Psychiatry (2012), http://dx.doi.org/10.1016/j.ijlp.2012.09.005
Yet it, together with the Duchess of Kingston's Case, came to be cited
in support of the denial of patients' privilege of confidentiality in a se-
ries of civil cases that had nothing to do with medicine or therapeutic
relationships. For example, Broad v. Pitt (1828) 3 C & P 518 involved
an action on replevin; having determined that the client–attorney priv-
ilege should only apply to ‘communications made for the purpose of
bringing or defending actions’, Best CJ added a comment that there ‘is
also no privilege of this description in the case of a medical man.’70 In
the like manner, in Greenlaw v. King (1838) 1 Beav.137; 48 ER 891,
while determining the issue of production of documents concerning se-
curity of an impeached transaction, Lord Langdale MR declared that:
‘the cases of privilege are confined to solicitors and their clients;
and stewards, parents, medical attendants, clergymen and persons
in the most closely confidential relation are bound to disclose
communications made to them.’ 71
In time, the Duchess of Kingston, Gibbons, Broad and Greenlaw cases
came to be regarded as binding precedents, 72 though some judges did
question the exceptional — in its exclusivity — nature of the client–
attorney privilege.
Thus, Lord Chancellor Brougham in Greenough v. Gaskell (1833) 1 My
& K 97; 39 ER 618, a case involving proceedings for fraud against a solic-
itor, explained that legal professional privilege was based on ‘regard to
the interests of justice’ and the administration of justice, ‘which cannot
go on, without the aid of’ professional lawyers.73 But Lord Brougham
added that ‘it may not be very easy to discover why a like privilege
has been refused to others, and especially to medical advisers’.74
In Russell v. Jackson (1851) 9 Hare 387; 68 ER 558, a case concerning
a challenge to the validity of a testamentary trust on the grounds that its
secret purpose was either charitable or illegal,75 Turner VC, holding that
communications between the testator's agent and a solicitor during the
testator's lifetime should be admitted in evidence, observed:
‘It is evident that the rule which protects from disclosure confi-
dential communications between solicitor and client does not rest
simply upon the confidence reposed by the client in the solicitor,
for there is no such rule in other cases in which at least equal con-
fidence is reposed: in the cases, for instance, of the medical adviser
and the patient, and of the clergyman and the prisoner.’ 76
70
Broad v. Pitt (1828) 3 C. & P. 518 at 519. Best CJ cited the Duchess of Kingston's case
as ‘11 Howells Stat Tr 248 and Rex v. Gibbons, 1 Carr & P 97’.
71
Greenlaw v. King (1838) 1 Beav. 137 at 145; 48 Eng. Rep. 891 at 894.
72
For example, in Lee v. Hammerton (1864) 12 The Weekly Reporter 975, Kindersley
VC, cited the Duchess of Kingston's Case as the sole authority in support of a holding that
a confidential report by a medical officer to a life insurance company was not
privileged and had to be produced in a foreclosure suit. See also Doe d. Peter v. Watkins
(1837) 3 Bing (N C) 421; 132 Eng. Rep. 472 regarding legal advice about investment
properties, Vaughan J at 426; 474, noted that ‘the privilege is confined to the legal pro-
fession as appears from the Duchess of Kingston's case …’
73
Greenough v. Gaskell (1833) 1 My. & K. 97 at 101; 39 Eng. Rep. 618 at 621.
According to Brougham LC, in the absence of the privilege, ‘everyone would be thrown
upon his own legal resources; deprived of all professional assistance, a man would not
venture to consult any skilful person, or would only dare to tell his counsellor half his
case.’ Id.
74
Greenough v. Gaskell (1833) 1 My. & K. 97 at 103; 39 Eng. Rep. 618 at 620.
75
The illegal purpose was the establishment of a school for the education of children
in the doctrines of Socialism.
76
Russell v. Jackson (1851) 9 Hare 387 at 391; 68 Eng. Rep. 558 at 559–560. See also
Joseph Chitty, 1 A Practical Treatise on Criminal Law (Philadelphia, Edward Earle 1819),
at 417: ‘As the law stands at present, though it has been regretted by the courts, phy-
sicians, surgeons, catholic priests who receive confessions, and others whose situation
entrusts them with concerns as delicate as these, are compelled to the fullest disclo-
sures’. Later, in Edward Smirke & Henry Roscoe's Digest of the Law of Evidence on the Tri-
al of Actions at Nisi Prius (London, V. & R. Stevens and Sons 1861) at 142 it would be
categorically asserted that: ‘Physicians, surgeons, and divines are not privileged from
compulsive disclosures of communications, however confidential. R v. Duchess of Kingston,
20 How. St. Tr. 573’.
 D. Mendelson / International Journal of Law and Psychiatry xxx (2012) xxx–xxx
Turner VC then referred to the judgment of Lord Brougham in
Greenough v. Gaskell, 77 although he did not elaborate on the rationale
for the common law's refusal of the privilege of medical duty of con-
fidentiality. It was Sir George Jessel MR who in Wheeler v. Le Marchant
(1881) 17 Ch D 675, an action for specific performance of a building
contract, expressly discussed the reason why the law safeguarded
confidences between solicitor and client but set its face against pro-
tection of confidential information divulged by patients to their med-
ical attendants. 78 The Master of the Rolls began by commenting that:
‘The communications made to medical men whose advice is
sought by a patient with respect to the probable origin of the dis-
ease as to which he is consulted, and which must necessarily be
made in order to enable the medical man to advise or to prescribe
for the patient, are not protected.’ 79
He then provided the most cogent explanation of the common
law's preferment of the professional legal privilege and its relatively
narrow scope:
‘The protection is of very limited character, and in this country is
restricted to obtaining the assistance of lawyers, as regards the
conduct of litigation or the rights to property.’ 80
Indeed, throughout the nineteenth century most of the cases in
which the courts affirmed the existence of the client–attorney privi-
lege while confirming the absence of a similar patient–doctor privi-
lege, involved disputes about property. Historically, the common
law elevated the interest in property — real and personal — above
other legal interests. 81 Since, as a general rule, therapeutic relation-
ships do not encompass property rights, with few notable exceptions,
judges, while acknowledging doctors' moral obligations, did not re-
gard the confidences reposed by the patient in his or her medical ad-
viser as worthy of legal protection. It is a moot point whether Lord
Brougham and Jessel MR would have been prepared to reverse the
default-based approach towards patients' evidentiary privilege, had
the issue come before them squarely for determination.
4. Commentators and legislators of the early 19th century and the
patients' evidentiary privilege
The wide common law doctrine of compellability of medical disclo-
sure had supporters as well as critics. The policy underlying the doctrine
was framed in terms of the physician's duty of confidentiality to the in-
dividual patient based on compassion and trust, being trumped by the
physician's duty to disclose confidential information to the court
based on the requirement for an unimpeded administration of justice.
Jeremy Bentham in his Rationale of Judicial Evidence82 argued that the
exclusion of probative evidence on the ground of its possible ‘unpleas-
ant’ consequences is ‘one of the most pernicious and most irrational no-
tions that ever found its way into the human mind.’ 83
77
Greenough v. Gaskell (1833) 1 My. & K. 97; 39 Eng. Rep. 618.
78
Earlier, in Anderson v. Bank of British Columbia (1876) L.R. 2 Ch. D. 644, Jessel MR
commented at 650-51 that: ‘Our law has not extended that privilege [of confidentiali-
ty], as some foreign laws have, to the medical profession, or to the sacerdotal profes-
sion. We know that in some foreign countries communications made to a medical
man are privileged, upon the ground that it is as desirable that a man shall be perfectly
free in his communication with *651 his medical man, as that he shall be free in his
communications with his lawyer. That has not been recognised in this country.’
79
Wheeler v. Le Marchant (1881) 17 Ch. D. 675 at 681.
80
Id. at 681-182.
81
See Lord Camden CJ's statement made in the context of trespass to land, but equal-
ly applicable to personal property in Entick v. Carrington (1765) 2 Wils. K.B. 275 at 291,
95 Eng. Rep. 807 at 817: ‘Our law holds the property of every man so sacred that no
man can set foot upon his neighbour's close without his leave.’
82
Jeremy Bentham, 5 Rationale of Judicial Evidence (London, Hunt and Clarke, John
Stuart Mill ed. 1827) at 193–194. The book was originally published in French in
1818, and parts of it were translated into English in the early 1820s.
83
Id. at 194.
Please cite this article as: Mendelson, D., The Duchess of Kingston's Case, the ruling of Lord Mansfield and duty of medical confidentiality in
court, International Journal of Law and Psychiatry (2012), http://dx.doi.org/10.1016/j.ijlp.2012.09.005
7
The response to the doctrine of compellability by writers on medical
jurisprudence depended on whether their approach to the nature of
medical care and obligations of medical professionals was teleological
or deontological. John A. Paris, a physician, and John Samuel Martin
Fonblanque, a barrister, in their treatise on Medical Jurisprudence
(1823) adopted a teleological approach. Consequently, when quot-
ing Lord Mansfield's truncated passages from the ‘celebrated trial
of the Duchess of Kingston,’ they observed that although ordinarily
medical practitioners:
‘are not bound to divulge the secrets of their patients, reposed in
them in the course of professional confidence … when the ends of
justice absolutely require disclosure, there is no doubt that the med-
ical witness is not only bound, but compellable to give evidence’.84
Paris and Fonblanque commented ‘that the examination should not
be carried further than may be relevant to the point in question: of this
the court will judge, and protect the witness accordingly’,85 thus con-
fusing the nature of the privilege as claimed by Caesar Hawkins.
In particular, no test or guidance of relevancy was provided, and ju-
dicial protection did not encompass patients. For example, the Gardner
Peerage Case, (1825) Le Marchant's Report, 86 involved the question
whether Mr. Henry Fenton Gardner ‘was born within that period of
time, when, by the laws of nature’, 87 he could be regarded as the legit-
imate son of the late Alan Hyde, Baron Gardner. The case was tried be-
fore the House of Lords, and after listening to the testimony of 17
expert witnesses (physicians, surgeons and midwives) called to testify
about the probability or otherwise of such protracted pregnancy, their
Lordships determined that gestation lasting 43 weeks and 4 days fell
within ‘that period’. The majority of medical witnesses refrained from
naming patients to whose pregnancies they averred by way of example.
Dr Richard Byam Denison, referred to a patient who told him that her
‘pregnancy was beyond the usual time’. When asked by ‘a Lord’ whether
he had any objection to state the name of the ‘lady’, Dr Denison replied:
‘I should beg to be excused; it is professional confidence’. 88 The question
was prurient, and the court rightly ignored it. Another witness, Dr Con-
quest, when asked ‘Will you give the name of the woman, if you re-
member it?’ responded: ‘I put the question, before I was called to this
bar, to the attorney, Whether it was necessary for me to give the
names and residence of individuals? because I am confining my re-
marks entirely to cases of private practice.’89
However, five medical practitioners and a midwife who appeared on
behalf of the claimant volunteered full names, addresses and the most
intimate medical details regarding conception dates, menstrual cycles
and gestation periods of several patients.90 None of these female pa-
tients were parties to the suit, none gave their consent to disclosure,
yet several were summoned and cross-examined. Admittedly, some of
these witnesses also happily testified that they gave birth to live infants
well after 10 months of gestation.91
84
Paris & Fonblanque, supra, note 47 at 160.
85
Id.
86
Denis Le Marchant, Report of the Proceedings of the House of Lords on the Claims to
the Barony of Gardner: with an Appendix Containing a Collection of Cases Illustrative of
the Law of Legitimacy (London, Henry Butterworth 1828).
87
Id. at 221.
88
Id. at 133.
89
Id. at 88.
90
One of the medical witnesses, Mr. John Sabine Esq, surgeon and accoucheur gave
graphic details taken from his wife's personal diary records of her menstrual periods,
and entries referring to ‘heartburn, pains in the breasts, the ring round the navel …
[becoming] dark’. Id. at 111–112. The surgeon's wife-cum-patient was in no way asso-
ciated with the trial at which her husband was testifying as an expert witness.
91
Mary Parker, one of the patients named by Dr. Augustus Bozzi Granville was sum-
moned and cross-examined; she claimed to be 11 months pregnant at the time of her
testimony. Id. at 194. The credibility of one of the witnesses claiming a 10 month-long
pregnancy, Sarah Mitchell, was destroyed when the naval records of her late husband
were produced. Id. at 194; 216–220.
8 D. Mendelson / International Journal of Law and Psychiatry xxx (2012) xxx–xxx
Adopting a deontological approach to medical ethics, John Gordon
Smith, Scottish surgeon and Professor of Medical Jurisprudence, in his
Analysis of Medical Evidence (1825),92 expressly disagreed with the doc-
trine of compellability and contended that medical practitioners should
be able to claim the same privilege barristers and attorneys held for
their clients. Paris and Fonblanque cited with approval the final para-
graph of Lord Mansfield's ruling; in contrast, John Gordon Smith relied
on Buller J's critique of this truncated ruling in Wilson v. Rastall.93 Focus-
ing on the ethical and moral dilemmas raised by the width of the rule,
he commented that the doctrine was ‘particularly distressing’ [to a
medical witness wishing to resist disclosure]:
‘because … he not merely exposes himself to personal suffering,
but incurs the charge of disregard to the interests of justice, and
dereliction of duty to his country; in other words, he will be con-
sidered allowing private claims of an individual to set aside those
of the public weal’ 94
In other words, the argument for compellability of disclosure
might be relevant to criminal trials, but in civil matters ‘it may be,
of the last importance to the character of individuals, and the peace
of families, arising out of circumstances of a purely private nature,
and in no way relating to affairs of state or municipal interest.’ 95
Echoing John Gregory, John Gordon Smith observed that:
‘… in regard to females, we might be called upon to reveal that of
which the promulgation would, to them, be worse than death itself.’96
97
John Gordon Smith quoted from Dr Jean Jacques Belloc, a well-
known French writer on forensic medicine, and from the ‘father of
legal medicine’ the Italian Paolo Zacchia, 98 both of whom stressed
that in Europe, the medical duty of confidentiality was absolute and
extended to courtroom proceedings. He concluded by invoking Hip-
pocratic ethics:
‘as I consider physicians to be virtually bound by the spirit, if not
the letter of the Hippocratic oath, I am not satisfied that the
strong and overbearing voice of authority would be adequate to
release me from misgivings of my own mind, after having re-
vealed matters that I never should have known, but from an im-
plied belief in the force of my professional obligations to be
secret.’
The views of Buller J, Baron Garrow and John Gordon Smith found
support in the United States, where in 1828 the New York legislature
enacted a statutory physician–patient privilege, which read:
‘No person duly authorized to practise physic or surgery, shall
be allowed to disclose any information which he may have ac-
quired in attending any patient, in a professional character, and
which information was necessary to enable him to prescribe
for such patient as a physician, or to do any act for him, as a
surgeon.’ 99
92
John Gordon Smith, Analysis of Medical Evidence (London, Thomas and George
Underwood 1825).
93
Id. at 91–92.
94
Id. at 93–94.
95
Id. at 94.
96
Id. at 94.
97
Jean-Jacques Belloc, Cours de Medecine Legale, Theorique et Pratique (Paris, Chez
Mequignon L'aine, Societe de Medecine 1811) at 17.
98
Paolo Zacchia (1584–1659) 6 Questiones Medico-Legales (Rome, A. Brugiotti for
J. Mascardus, 1621–1650) tit i.q.3.
99
2 N.Y. Revised Statutes pt. 3, ch. 7, § 73, at 406 (1828–1829). For a discussion, see
Anonymous, Development in the Law — Privileged Communication. Part IV, 98 Harv.
L. Rev. (1985), 1530 at 1532.
Please cite this article as: Mendelson, D., The Duchess of Kingston's Case, the ruling of Lord Mansfield and duty of medical confidentiality in
court, International Journal of Law and Psychiatry (2012), http://dx.doi.org/10.1016/j.ijlp.2012.09.005
This provision (and its pendant protecting secrecy of clergymen
and communicants) specifically aimed to place physicians in relation
to their patients, in the same position as the common law placed legal
advisers and their clients. 100 In the course of an 1836 revision of the
legislation, the public health policy behind the original New York
statute was thus explained:
‘The ground on which communications to counsel are privileged,
is the supposed necessity of a full knowledge of the facts, to ad-
vise correctly, and to prepare for the proper defence or prosecu-
tion of a suit. But surely the necessity of consulting a medical
advisor, when life itself may be in jeopardy, is still stronger. And
unless such consultations are privileged, men will be incidentally
punished by being obliged to suffer the consequences of injuries
without relief from the medical art, and without conviction of
any offence.’ 101
By 1881, twenty American States and Territories enacted provi-
sions similar to the New York statute. 102 In Australia, presumably per-
suaded by public policy arguments similar to those put forward in the
United States, 103 and within two years of establishing its own legisla-
ture, 104 the Parliament of Victoria enacted a similar provision to that
of the 1828 New York statute. 105 In Canada, the Province of Québec
retained the doctrine of medical professional secrecy. 106
5. John Henry Wigmore and the Duchess of Kingston Case
However, in jurisdictions where statutory privilege of a patient's
right to medical confidentiality did not exist, the courts have tended
100
Renihan v. Dennin 103 N.Y. 573 at 576; 9 N.E. 320 at 320 (1886), citing 5 Edm. Stat.
726, 727, revisers' notes.
101
Extracts from the Original Reports of the Revisers, 3 N.Y. Rev. Stat. app. pt. 3, ch. 7, §
73, at 737 (1836); cited in Anonymous, supra, note 99 at 1532.
102
Gartside v. The Connecticut Mutual Life Insurance Company, 76 Mo. 446 at 452
(1882) contains a chronological table of the twenty statutes. According to Daniel A.
Cantu, When Should Federal Courts Require Psychotherapists to Testify About Their
Patients? An Interpretation of Jaffee v. Redmond, University of Chicago Legal Federal Fo-
rum (1998) 375 at 376, 383-4: a hundred years later, all fifty states and the District of
Columbia had enacted an evidentiary medical and psychotherapist–patient privilege.
Different states, however, allow various exceptions to this privilege. Thirteen states
provide for virtually no exceptions. Ten states terminate the privilege whenever the
patient becomes a threat to others. Fourteen states exempt child abuse cases from
the psychotherapy privilege; four exempt trials involving homicide or other violent
crimes; Nebraska exempts crimes involving controlled substances; the District of Co-
lumbia exempts medical fraud cases; and two states deny privilege in criminal trials.
Furthermore, twenty-six states allow otherwise confidential information to be used
for involuntary hospitalization proceedings; and twenty-nine states disallow the priv-
ilege when the defence raises psychiatric evidence as an element of a claim, or in court-
ordered medical examinations.
103
Legislative Assembly of Victoria, Parliamentary Debates (21 January 1857) at 323
only reports that ‘On clause 18 [Evidence Law Amendment Bill], on the question
whether or not medical men should be exempted from divulging particulars entrusted
to them by patients, the House divided, when the question was decided that they
should not be compelled to divulge such statements’. Cited in Legislative Council,
281 Parliamentary Debates (28 April 1966) at 3754-5.
104
Victorian Constitution Act 1855 (UK) 18 & 19 Vict. C. 55 with Constitution Act.
105
Law of Evidence Consolidation Act 1857 21 Vict. No. 8, s. 18 read: ‘… no physician or
surgeon shall without the consent of his patient divulge in any civil suit action or pro-
ceeding unless the sanity of the patient be the matter in dispute any information which
he may have acquired in attending the patient and which was necessary to enable him
to prescribe or act for the patient.’ This wording was retained in Law of Evidence Con-
solidation Act 1860 24 Vict. No. 100, s. 19, and Statute of Evidence 1864 27 Vict. No.
197, s. 47.
106
See Mutual Life Insurance Co. of New York v. Jeannotte-Lamarche (1935) CarswellQue
115; 59 B.R. 510. For discussion in different jurisdictions see, for example: Rignal W.
Baldwin, Confidentiality between Physician and Patient, 22 Md. L. Rev. (1962) 181;
Israel A. Ludwig, The Doctor's Dilemma, 6 M.L.J. (1975) 313; Christine L.M. Boyle, Con-
fidence v. Privilege, 25 N.I.L.Q. (1974) 31; Laural C. Alexander, Should Alabama Adopt a
Physician–Patient Evidence Privilege?, 45 Ala. L. Rev. (1993) 261.
 D. Mendelson / International Journal of Law and Psychiatry xxx (2012) xxx–xxx
to defer to John Henry Wigmore's authority.107 In his 1904-5 Treatise on
the Anglo-American System of Evidence in Trials at Common Law (known
as Wigmore on Evidence),108 Wigmore quoted parts of Lord Mansfield's
ex tempore ruling, including the final sentence (‘If a surgeon was volun-
tarily 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.’). He concluded that: ‘This
has ever since been accepted by English judges’ 109
Most of the cases discussed above — in reality, a motley collection
of obiter dicta — were cited (not always accurately) 110 in support.
John H. Langbein, referring to Wigmore's statements regarding the
confession rule and the status of the Crown witness noted that:
‘Wigmore treated the remarks [of Lord Mansfield in Rex v. Rudd
(1775) 1 Leach 115, 168 Eng. Rep. 160] as a lucky piece of dictum,
and he did not probe its context.’ 111
Professor Langbein's observation is equally apposite to Wigmore's
use of Lord Mansfield's dictum in the Duchess of Kingston's Case. 112
Wigmore was opposed to the concept of privilege, considering it an
impediment to the judicial truth-seeking function. He designed a test of
‘four fundamental conditions … necessary to the establishment of a
privilege against the disclosure of communications between persons
standing in a given relation’.113 According to Wigmore: ‘(1) The com-
munications must originate in a confidence that they will not be
disclosed; (2) This element of confidentiality must be essential to the
full and satisfactory maintenance of the relation between the parties;
(3) The relation must be one which in the opinion of the community
ought to be sedulously fostered; and (4) The injury that would inure
to the relation by the disclosure of the communications must be greater
than the benefit thereby gained for the correct disposal of litigation.’114
107
Globe & Mail v. Canada (Procureur général) [2010] 2 S.C.R. 592 at [54]–[57]; D v.
National Society for the Prevention of Cruelty to Children (NSPCC) [1978] A.C. 171 at
237, 241; Canada (Solicitor General) v. Ontario (Royal Commission of Inquiry into Confi-
dentiality of Health Records) [1981] 2 R.C.S. 494 at [26]; A v. B [1995] 4 R.C.S. 536 at [40];
R. v. National Post; [2010] 1 S.C.R. 477 at [159]; A.(L.L.) v. B.(A.) [1995] 4 S.C.R. 536 at
[40]; Kalen v. Brantford (City) 2011 ONSC 1891 at [22]; M. (A.) v. Ryan [1997] [1997]
1 S.C.R. 157 at [50]; R. v. Fosty (sub nom. R. v. Gruenke) [1991] 3 S.C.R. 263 at [24]–
[26], [109]–[111]; Slavutych v. Baker [1975] 4 W.W.R. 620, [1976] 1 S.C.R. 254 at [15],
[18]; Clements v. Fougère; 2007 N.B.C.A. 4; (2007) 311 N.B.R. (2d) 368 at [4], [19];
Commissioner of Australian Federal Police v. Propend Finance Pty. Ltd. (1997) 188 C.L.R.
501 at 525 (professional legal privilege); The Queen v. Bell; Ex parte Lees (1980) 146
C.L.R. 141 at 159; but see R. v. Young (1999) 107 Austr. Crim. R. 1 at [84]. See also John
Sopinka and Sidney N. Lederman, The Law of Evidence in Civil Cases (Toronto, Canada,
Butterworths, 1974), at 13–14; 156-69; 206–209.
108
Wigmore, supra, note 67 at §2380, 3347. John H. Wigmore, revised edition by John
T. McNaughton 8 Evidence in Trials at Common Law (1961) §2285, 528 is usually cited
as the authority (the relevant text in both editions is the same).
109
Wigmore, supra, note 67 at §2380, 3347.
110
See supra, notes 68, 72 and 107.
111
John H. Langbein, Shaping the Eighteenth-Century Criminal Trial: A View from the
Ryder Sources, 50 U. Chi. L. Rev. (1983) 1 at 105.
112
Not atypically, Wigmore, supra, note 67, at §2380, 3347 refers to the Gardner Peer-
age Case, (1825) Le Marchant's Rep. 65, 88, 133 as an example ‘of an occasional and
proper dispensation by courtesy’ in relation to ‘names of women whose periods of ges-
tation were testified to’. This statement is only partly accurate, for the ‘dispensation’
was motivated not by ‘courtesy’ but by appreciation that the names of these third
parties were totally irrelevant to the matter before the court. Moreover, the court did
nothing to halt or impede expert witnesses from volunteering the names together with
personal and medical details of their female patients.
113
Wigmore, supra, note 67, at §2285, 3185.
114
Id. at §2285, 3185. Wigmore wrongly attributes to Wigram VC the following quo-
tation from Russell v. Jackson (1851) 9 Hare, 387, 391, which he cites as the authority
for his four-point test: ‘The rule which protects from disclosure confidential communi-
cations between solicitor and client, does not rest simply upon the confidence reposed
by the client in the solicitor, for there is no such rule in other cases in which at least
equal confidence is reposed; … it seems to rest, not upon the confidence itself, but
upon the necessity of carrying it out’. The text appears in the Vice-Chancellor, Sir G.J.
Turner's judgment; Sir James Wigram VC retired from the bench in 1850.
Please cite this article as: Mendelson, D., The Duchess of Kingston's Case, the ruling of Lord Mansfield and duty of medical confidentiality in
court, International Journal of Law and Psychiatry (2012), http://dx.doi.org/10.1016/j.ijlp.2012.09.005
9
Applying the test, he decided that at least three conditions are
present (the fourth being open to dispute) in the client–attorney
privilege 115; however:
‘In the privilege (denied at common law) for communications be-
tween physician and patient, the fallacy of recognising it lies in the
incorrect assumption that the second and fourth conditions are
generally present.’ 116
With regard to the first requirement, he argued that the instances of
confidential communications between patients and doctors are con-
fined to facts involving venereal disease and criminal abortion.117
In contrast to copious citations of authorities in support of his legal
propositions, Wigmore does not provide any theoretical or empirical
evidence in support of his assertions that compelling the disclosure
of communications between patients and their medical practitioners
has no deleterious effects on patients as individuals, the therapeutic
relationship and public health. Nevertheless, his views appear to
have been representative of a considerable body of legal and some
medical practitioners 118; they remained influential throughout the
20th century. 119
6. Conclusion
Modern divorce laws would have precluded the case of the Duch-
ess of Kingston from arising today. Since both wished to end their
matrimonial ties and there were no claims to spousal property by ei-
ther side, Augustus and Elizabeth would have obtained the divorce
order without having to go through the public humiliations inherent
in the 18th century proceedings. That said, what lessons are to be
learned from the trial, the ruling of Lord Mansfield and its history?
Elizabeth's trial for bigamy is not one of the highlights of English
legal history. The treatment of Lord Mansfield's ex tempore response
to Caesar Hawkins' query, was lifted out of its very specific context,
115
Under the common law legal professional privilege, as a general rule, confidential
communications between legal practitioner and client for the sole purpose of obtaining
professional legal advice for use in litigation cannot be disclosed in evidence without
consent of the client. Wigmore, supra, note 67 at §2285, 3185.
116
Id.
117
Id. at §2380, 3350.
118
See for example Watson v. McEwan [1905] A.C. 480; Watson v. McEwan (1904) 12
S.L.T. 599; AB v. CD (1904) 7 F. 72: Mrs McEwan instituted divorce proceedings against
her husband on the ground of medically documented ‘ill-use’ (violence) and cruelty.
Sir Patrick H Watson, a ‘very eminent member of the medical profession in Edinburgh’,
against the express wishes of his patient, Mrs McEwan, ‘at his own hand and without
being called on, voluntarily produced … his private note-book’ containing her clinical
notes' (AB v. CD (1904) 7 F. 72, at 73–74). He asserted that the former patient was
addicted to (medically prescribed) morphine and wanted an abortion (proved to be
untrue). The majority in the Scottish Court of Session (Inner House, Second Division)
determined that Watson's privilege as a witness in court was absolute; though he
might not have been immune from liability in slander for the claims he made to the
husband and his agents. Lord Young in dissent opined ‘that there is here no relevant
case against Sir Patrick Watson, and I think it only just and fair to him to state, so far
as my opinion goes, that nothing which he is alleged to have done or said was improp-
er’. In the House of Lords (Watson v. McEwan [1905] A.C. 480), Earl of Halsbury L.C. re-
ferring to Watson's conduct, at 489 stated: ‘I do not care whether he is what is called a
volunteer or not; if he is a person engaged in the administration of justice, on which-
ever side he is called his duty is to tell the truth and the whole truth.’ Lord James
and Lord Robertson agreed. Lord Mansfield's ruling with its injunction against
volunteering was not cited.
119
For example, in R v. Young [1999] 46 N.S.W.L.R. 681 at 699, Spigelman CJ cited
amongst authorities for the proposition that no evidentiary patient's privilege exists
at common law, the case of Nuttall v. Nuttall & Twyman (1964) 108 The Solicitors' Jour-
nal 605. According to the journal report: ‘In the course of the hearing of a divorce suit,
the husband subpoenaed as a witness a psychiatrist who had been consulted by the
wife and the co-respondent. When examined-in-chief by the husband's counsel as to
what the wife and co-respondent had said to him, the psychiatrist protested against
answering the questions on the ground of professional confidence. Judge Edgedale said
that what a person said to a doctor in a professional consultation was not privileged,
and the witness must either give the evidence or be committed to prison for contempt
of court. The witness then gave evidence.’
10 D. Mendelson / International Journal of Law and Psychiatry xxx (2012) xxx–xxx

abridged and cited as an obiter dictum in a string of mainly property
law cases in which no medical witnesses were involved. Neither the
object nor the scope of what was said by his Lordship was analysed.
Though constantly referred to, it does not appear that many judges
actually read the full ruling, let alone the judgment; a practice that
is inimical to the development of coherent and fair legal principles.
Just as importantly, the cross-examination of Caesar Hawkins il-
lustrates the very different ways in which the content of the same
terms was understood by the medical practitioner and the lawyer.
Perhaps the ruling would not have been necessary if Mr Dunning,
rather than turning to the Court, had asked Mr Caesar Hawkins to ex-
plain what he understood by ‘professional honour’ and ‘confidential
trust’. The problem of parallel rather than mutual comprehension of
superficially common phraseology is as pertinent to testimony by
medical practitioners in court today as it was in the 18th century.
The divergence in understanding of such concepts as patients'
right to confidentiality and the state interest in disclosure reflect
very different hierarchies of ethical and social values that underpin
medicine and law. Where the law places the public interests of justice
and its administration at the apex of the hierarchy of its values, for
medicine it is the individual patient and his or her well-being. Both
sets of values are essential to a civil society, and they may not be
easy to reconcile, but Wigmore's dismissal of medical concerns 120
has resulted in many avoidable personal tragedies and misery.

120
‘There is nothing to be said in favour of the [patients' right to confidentiality] priv-
ilege, and a great deal to be said against it.’ Wigmore, supra, note 67, at §2380, 3352.

Please cite this article as: Mendelson, D., The Duchess of Kingston's Case, the ruling of Lord Mansfield and duty of medical confidentiality in
court, International Journal of Law and Psychiatry (2012), http://dx.doi.org/10.1016/j.ijlp.2012.09.005
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