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The Enforcement of Health: The British Debate
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State Intervention, Paternalism, and Resistance

Given the strength of this prevailing liberalism, it should not be surprising that the most dramatic initial inroads on the individual right and duty to monitor one's own health came with a group particularly unable to protect themselves—the insane. The prereform-era English state had permitted the unchecked growth of a uniquely laissez-faire method of managing madness. In most of continental Europe from the seventeenth century onward, some form of state authorization was required for the legal confinement of a mad person by his or her relatives or friends (in France, for example, it was by royal lettre de cachet , in the United Provinces, by order of town councils).[21]

In England, by contrast, the state had kept completely clear of the trade in lunacy. Through most of the eighteenth century anyone could be indefinitely confined in a privately owned madhouse by the agency of friends or family willing to pay the fee; the transaction was purely private. In 1774 medical certification of the insane and licensing of private madhouses were introduced for the first time.[22] Inspection, however, remained rudimentary until the establishment of the Lunacy Commission, set up for the metropolitan area in 1828 and extended to the whole country in 1845.[23] Thereafter, a state-appointed board, chaired for fifty-three years by the indefatigable Evangelical, Lord Shaftesbury, vigorously overruled what would otherwise have been the free contractual relationships of the market, acting on behalf of the putative interests of the insane.

In the case of lunatics, the ground for intervention was simple: By reason of unreason, the insane were legally non compos mentis , incapable of minding their own affairs. Legally irresponsible like minors, they needed a competent body to act on their behalf. Laws licensing and regulating madhouses and preventing improper confinement would protect lunatics; in return for that protection, they were to suffer the suspension of their freedom, their civil rights. In time, the range and number of people undergoing certification increased, as the rationales for confinement were enlarged from the initial restrictive one (preventing harm being done by the lunatic to self and others), to the more expansive ideal of therapeutic cure. In other words, the state became more interventionist by moving from a negative notion of freedom (preventing harm) to a positive one (doing good). At the same time, the scope of


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the activities of the Lunacy Commission expanded, regulating asylum management in greater detail. The case of lunacy exemplifies the emergence of the state regulation of health at its most pure, complete, and unchallenged.[24]

The tacit ideology in the development of compulsory legislation to prevent infectious disease took a slightly different tack. Here advocates of state medicine, such as Sir John Simon and Henry Rumsey, claimed that what we might call the sovereign right of the individual to contract, die of, and spread infectious disease should be suspended for the benefit of the health of the community as a whole.[25] In this context two sets of legislation were passed during the 1850s and 1860s that made great inroads on the civil liberty of individuals to have autonomy over their health and sickness. The Compulsory Vaccination acts of 1853 and 1867 placed a legal obligation on parents to have their children vaccinated within the first year of life; fines or imprisonment were the penalties for default.[26] Compulsory smallpox vaccination constituted a remarkable infringement of the normal rights of parents over their children, especially in view of the fact that few legal restrictions on child labor existed at this time, and there was no statutory obligation on parents to educate their children; parents also still possessed an almost unlimited right to neglect or punish their offspring.

The lunacy laws had met little resistance from normally vociferous libertarians, but compulsory smallpox vaccination proved a very different kettle of fish. A powerful opposition lobby was formed, spearheaded by the Anti-Vaccination League (founded in 1867), pressing for repeal.[27] It had numerous strings to its bow, advancing statistical, technical, and medico-scientific arguments for the inefficacy—indeed, the gross danger—of vaccination itself. But it also campaigned on the platform of freedom from medical tyranny—some of its members seeing compulsory vaccination as a manifestation of the menace of medical imperialism comparable to the growing practice of vivisection.[28] At the heart of the league's campaign lay the philosophy of Mill, summarized in an epigraph at the head of each issue of its journal, the Vaccination Inquirer : "He who knows only his own side of the case, knows little of that."

Appealing to that cluster of populist and radical interests that paraded themselves as Davids ranged against the Goliath of the Victorian establishment, the Anti-Vaccination League was able to flex sufficient muscle to secure a substantial attenuation of the acts: The act of 1898 allowed parents to forgo vaccination if they could prove to a magistrate


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that they had genuine conscientious objections to the practice of injecting contaminated material into the bodies of their infants. Later, in 1907, a further amendment made exemption much easier through formal applications to a justice of the peace.[29] The new legislation merely ratified the status quo in existing antivaccinationist strongholds, such as Leicester, where the original act had proved impossible to implement against the wishes of large numbers of refractory parents, not least because the union authorities had themselves been divided on the issue.[30]

It would be inaccurate to characterize the struggle over smallpox vaccination as a simplistic division of authoritarian versus libertarian ideologies. Simon, the main architect of the 1867 act, was concerned to improve the quality of the system, making it as comprehensive as possible and ensuring the standard of lymph supply necessary for vaccination.[31] He was less concerned about the stringency of compulsion. For its part, the antivaccination lobby was not consistent in its arguments against compulsion. Although it characterized vaccination as medical despotism, it was prepared to support compulsory notification and isolation of smallpox victims in Leicester. The antivaccinationists called this the sanitarian's method, but medical officers of health, who operated notification, hailed it as the triumph of a scientific, medical approach to infectious disease and advocated its use in conjunction with vaccination, as in the 1896 Gloucester epidemic.[32]

Compulsory vaccination was one of two pieces of legislation created during the mid-Victorian period aimed at the prevention of infectious diseases. The second was the Contagious Diseases acts (1864, 1866, 1869). English legislators—all men, of course—had long since essentially accepted that prostitution was a commodity in the market economy, relating to elemental desire. So long as there were men, there would be a demand; so long as there was a market, there would be a supply. Prostitution, therefore, should essentially remain an unregulated free-market activity, subject to sporadic criminal prosecution. This "solution" (which had the additional benefit that the state was not "tainted" by giving sexual vice official recognition) was quite contrary to the system of policing employed for centuries in so many continental nations, in which prostitution came under the aegis of administrative jurisdiction through the close licensing of brothels.[33]

The consequence in England was that the chief legislation regarding prostitution was enacted ostensibly because of its threat to health. During the Crimean War it was discovered that the British army and navy were riddled with venereal disease. The euphemistically named Con-


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tagious Diseases acts (1864, 1866, 1869) attempted to counter venereal disease by enforcing the compulsory medical inspection of streetwalkers in specified garrison towns and ports. Women suspected of common prostitution could be taken into police custody, subjected to medical examination, and if found venereally infected, detained during the course of treatment.[34]

What is significant, however, is the collapse of the acts in the teeth of widespread and varied criticism (the acts were repealed in 1886). As with the antivaccination lobby, opposition to the Contagious Diseases acts formed into societies, such as the National Anti-Contagious Diseases Association (formed in 1869 and led by Josephine Butler), which won the support of a range of radical elements battling against what they saw as the improper encroachments on civil liberties.[35] Libertarian arguments against the acts were advanced: Even the British Medical Journal initially denounced the acts on the grounds that they infringed the "civil liberties" of prostitutes.[36] Medico-scientific arguments were added: The acts (it was alleged) were bound to prove ineffective in reducing venereal diseases. And most powerfully of all, perhaps, a moral groundswell stigmatized the acts—with their explicit avowal of the sexual double standard—as deeply offensive to women and as condoning vice by rendering such sex safe for men.[37]

There is no denying that a vocal section of the medical profession—army and navy doctors in particular—supported the acts, backing their case with an ingrained professional misogyny. Others, including no less an eminence than Sir John Simon, expressed considerable reservations, being unwilling to embroil the profession in the disreputable business of acting as moral jailers.[38] Neither can one find a simple libertarian/ authoritarian polarization in the minds of the repealers. For many members of the Ladies National Association, the "liberal" campaign to spare prostitutes from the police and the "instrumental rape" of the surgeon often accompanied a revivalist "social purity" campaign (eventually organized in the National Vigilance Movement) to "protect" women by introducing legal restrictions aimed at outlawing prostitution. "Votes for women, chastity for men" soon became Christabel Pankhurst's suffragist rallying call.[39]

The argument legitimating compulsory legislation to prevent infectious disease championed the health of the community over the individual's autonomy in matters of health and sickness. The common argument of the repealing organizations objected to the gross invasion of the bodies of its subjects by an authoritarian state: "Against the body of a


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healthy man Parliament has no right of assault whatever under pretence of the Public Health; nor any the more against the body of a healthy infant. . . . The law is an unendurable usurpation, and creates the right of resistance."[40] The development of compulsory intervention in public health began with the bodies of those who were least able to protest. The interventionist state was then able to achieve its aim under the guise of paternalism, protecting those unable to protect themselves—lunatics and children (in the case of vaccination)—and later moved to protecting society against a section of its supposedly least responsible elements, such as prostitutes.

It is often alleged nowadays—indeed, in the case of AIDS itself—that governments, particularly those of the right, irresponsibly whip up scaremongering "moral panics," which they then exploit to introduce repressive legislation dressed up in the benign language of public health.[41] The compulsory smallpox vaccination legislation and the Contagious Diseases acts indicate a rather different scenario. For in both these cases, the legislation itself was passed sub rosa, without a noisy, public panic, because a small band of committed advocates, politicians, and civil servants diplomatically pushed a bill (in the case of the 1853 vaccination act, a private member's bill) through the House with minimal discussion. The grande peur was then created by repealers , who, in the case of smallpox, argued that vaccination was more liable to create epidemics, not prevent them, and in the case of prostitution, claimed that no woman was now safe from suspicion.

The successes of the repeal cause in both cases is a sign of the relative weakness of the alliance between government and the organized medical profession, and of deep internal divisions within both as to the propriety and prudence of health enforcement. No Victorian government was prepared to take its commitment to preventive medicine to the point of great unpopularity. Equally, the scions of the medical profession—above all the Royal Colleges of Physicians and Surgeons—were keen to preserve their independence and to keep government at arm's length.

It is significant, then, that the major instance of the successful introduction of compulsory powers over adults in the sphere of public hygiene and preventive medicine should have been on a local and case-by-case basis. This lay in the development of the idea of notifiable diseases; i.e., those socially contagious infections that had proved such a hazard in the Victorian urban environment. Under the Local Government Act of 1875, medical officers of health were granted powers to remove sufferers from such diseases out of the community and place them


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in isolation or fever hospitals on the ground that they were "nuisances." This procedure was taken one stage further by an adoptive Notification of Diseases Act of 1889, made compulsory under a new act in 1899. This rendered obligatory the notification to the medical officer of health (MOH) of any incidence of a listed infectious disease (including typhus, typhoid, smallpox, erysipelas, scarlet fever, diphtheria, measles, etc.) by the attending physician or head of household. The MOH was subsequently empowered to remove the patient to an isolation hospital until rendered noninfectious and to disinfect the site of infection.[42]

In some ways this legislation represents a striking infringement of the traditional freedom to be sick, and to spread one's sickness, with impunity.[43] There was no organized public opposition to this measure. But some friction was created between the different branches of the medical profession itself. Thomas Crawford, chairman of the Sanitary Institute, pointed out in 1895 that the behavior of medical officers of health regarding the operation of notification and isolation had alienated general practitioners in their districts. The procedure of secondary (bacteriological) diagnosis often undermined the general practitioner's authority, and the detection and threat of prosecution of default infuriated the MOH's clinical colleagues.[44] Crawford claimed that this hostility from general practitioners was matched by that of families who objected to the law: "The English people are not afraid of risking either their lives or their health in the interests of those whom they love and they are consequently not easily persuaded to part with any member of their family simply because he or she happens to be suffering from an infectious disease."[45] The response of medical officers of health, by contrast, was to deny the existence of hostility from family members completely, claiming that the majority was pleased to attend hospital during their sickness, and that in London, at least, the Metropolitan Asylum Board was overburdened by the demand for isolation and its costs. But they were forced to admit the open hostility of the general practitioners, and acknowledged that the success of the notification system depended on the tact and diplomacy of individual officers.[46]

It is noteworthy that Infectious Diseases acts met with so little public opposition. When comparable powers of removal had first been introduced during the 1832 cholera epidemic, the public reacted with extensive rioting[47] (partly on the ground that cholera was what the radical journalist William Cobbett called a "humbug" promulgated to distract attention from the new Poor Law).[48] This new tractability of the British


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public suggests that by the last quarter of the nineteenth century the public was becoming acclimated to a new medical rationality that might involve the trimming of its liberties.

For reasons initially more connected with improved nutrition and a healthier environment than with innovations in curative medicine, infectious diseases that had constituted lethal, epidemic health hazards in earlier centuries gradually ceased to pose such a threat. The Notification of Diseases Acts still remain on the statute books but, mercifully, rarely have to be invoked. It is perhaps, then, not surprising that the key debates this century upon the propriety and necessity of compulsory powers for the treatment of disease and the prevention of epidemics have centered on venereal disease (V.D.). New methods of detecting and curing syphilis, with the development of the Wasserman test in 1906 and Paul Ehrlich's development of salvarsan in 1910, revived a preoccupation with reducing the prevalence of the disease[49] (one estimate claimed that in 1913 there were half a million sufferers in London alone).[50] The advent of World War I also fueled fears that wartime morality and concentrations of soldiers would swell the disease to epidemic proportions, threatening the armed forces' fighting ability.[51]

The Royal Commission on Venereal Diseases was therefore established in 1913 and reported to Parliament in 1916. A notable shift in medical and official opinion emerged from the debate. The failures of the Contagious Diseases Acts were accepted from the outset, and the terms of the inquiry were to regard a return to these measures as a nonoption—not least because the prostitute was no longer seen as the most dangerous source of infection. Increasing social emancipation for women—especially as the result of high levels of female employment during the war—led to increased sexual freedom for "ordinary" as well as "professional" women. These so-called amateurs were held responsible for spreading venereal disease at a far greater rate than prostitutes.[52]

The commission made an important discrimination between the prevention of socially transmitted diseases and those that are transmitted sexually—the former being visible and necessitating treatment in their earliest stages, the latter lying dormant and being difficult to detect; sexually transmitted diseases remained contagious without presenting life-threatening symptoms to the carrier. The commission's report acknowledged that early detection was essential to prevent spread, and required the voluntary, active cooperation of infected persons presenting themselves for treatment. It consequently concluded that the stigma


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of official notification would hinder rather than help effective control, driving venereal disease underground to quack physicians and their remedies.[53]

Instead, a system of V.D. clinics, for men and for women, was to be established. Attendance would be voluntary. Anonymity and confidentiality would be preserved, and for that reason, the clinics were to have no formal connections with general practitioners and hospitals. Attenders would be encouraged, but not compelled, to inform their sexual contacts. Treatment would be free. It was a system that would "condone vice" no less than the Contagious Diseases Acts. But—a sign of the times—it condoned male and female vice equally, and involved no stigmatization of prostitutes. The underlying philosophy was to create conditions that encouraged maximum cooperation and attendance among patients.[54] These recommendations were issued as new regulations by the Local Government Board in July 1916 and became law under a 1917 act.[55] The commission had also recommended that the task of mass education be given to a voluntary organization, the National Council for Combating Venereal Disease (NCCVD), formed in 1914. The NCCVD (later to become the British Social Hygiene Council) subsequently undertook a propaganda lecture program among the troops and the civilian population, together with poster campaigns and documentary films.[56]

The medical profession's response to the commission's report was generally favorable; the doctors welcomed the free treatment centers and laboratory services provided by the state.[57] A section of the profession (mostly those who had served in the army and navy medical corps during the war) formed themselves, however, into the Society for the Prevention of Venereal Disease, which promoted the adoption of compulsory notification and the free dispensing of prophylactics, which had been so successful in reducing levels of infection among the troops. They pressed also for penalties to be imposed on defaulting patients who failed to complete, or deliberately refused, treatment.[58]

In 1923 the Trevethin Committee examined the workings of the clinics and argued that their success made notification unnecessary.[59] Those who continued to support notification, however, cited the successes of Sweden and Western Australia, which had adopted compulsory systems in 1915 and 1911. Sweden had attacked vice and venereal disease at their heart, it was claimed, by making detention compulsory, introducing prosecution for knowingly spreading infection, and making marriage illegal for a patient until he or she was cured.[60] The medical


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profession largely rejected these examples. The Lancet in 1916 suggested that the Swedish approach could be successful only for a small population, and emphasized that because it "bristles with penalties," it ran the risk that patients "may so dread this compulsory pilgrimage to health that they will refuse to seek medical help, . . . a risk which must be avoided in the working of the new legislation in this country."[61] In 1937 a delegation from the Ministry of Health was sent to Scandinavia and Holland to report on the system but concluded that "the degree of success in reducing the incidence of syphilis in the countries employing compulsory treatment and in those which rely on a voluntary system is broadly similar."[62]

As the result of a sharp rise in the incidence of venereal disease from 1939 to 1941, and a slower but steady increase in 1942,[63] the government added Regulation 33B to the Defence (General) Regulations. This regulation made compulsory the medical treatment of a person identified as a contact by two or more people. The relative merits of a voluntary system and a compulsory one were once more evaluated.[64] Advocates of compulsion, including prominent members of the Medical Society for the Study of Venereal Diseases (MSSVD) claimed that the rates of people defaulting on treatment in some parts of the country had reached 82 percent compared with only 2.5 percent in Sweden.[65] The operation of Regulation 33B was questioned by promoters of general notification, such as Dr. Edith Summerskill.[66] She claimed it operated unfavorably against women, who were more reluctant to identify contacts[67] and were, moreover, liable to imprisonment for failing to comply with treatment, while her male contacts were not: "Can the minister justify the position in which an individual informed against under Regulation 33B can be sent to prison, but the two informers, people suffering from the disease and liable to transmit it . . . are not penalised in any way?"[68] The Health Ministry dodged Dr. Summerskill's questions and her demands for a comprehensive system of compulsory notification for all patients, which she believed would restore the balance.

The British Medical Journal lent its support to the arguments of M. J. Laird who, at a widely reported meeting of the MSSVD in April 1942, suggested that to assert that compulsion was not consonant with the "British idea of the liberty of the subject" was outdated by the facts of rising incidence and default from treatment. The journal suggested that it was "late in the day to talk about the liberty of the subject" when the medical profession and the British public


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raise no objection to a law which may inflict a penalty upon any person who, "(a) knowing he is suffering from a notifiable disease, exposes other persons to the risk of infection". . . . Nor is any voice raised against the regulations which make it possible to "remove to hospital any person suffering from a notifiable disease if . . . [there is] a serious risk of infection being caused to other persons."[69]

The editorial believed that notification of venereal disease would operate efficiently and equitably, provided that confidentiality were maintained. By the end of the war it was clear that this line of argument was supported, as The Lancet pointed out, by a majority of medical officers of health but was opposed by "those in closest touch with the patient."[70]

Critics of compulsion, such as Dorothy Manchee from the British Hygiene Council, deplored the fact that notification "struck at the root of the relationship of trust and confidence between doctor and patient"; it would, moreover, open the door to blackmail. Colonel L. W. Harrison, who was the inspector at the Ministry of Health responsible for the V.D. service, believed that "private practitioners would not notify their cases." Manchee also agreed that doctors would "not comply" with such a system, which "smacked of Hitlerite Germany."[71] Physic and police should not be unwisely mingled.

The medical profession generally came out strongly in favor of the existing system of voluntary clinics, whose efficacy could best be improved by free and frank educational campaigns, removing shame and the conspiracy of silence, and putting V.D. on an equivalent footing with every other disease. The wartime Ministry for Information, the Central Council for Health Education, and the Ministry of Health combined forces to launch a new propaganda campaign through the newspapers and via the radio, giving out "Ten Plain Facts about V.D."[72] The publicity was more explicit than ever before, so much so that it only just managed to carry the support of the church (the archbishop of Canterbury demanded that the government should insist on denouncing the moral evils of promiscuity).[73] The propaganda stressed that family life was the safe, if not the sole, sexual course. For some, the campaign still fell short of what was needed. The Lancet suggested that "unfortunately, as the Daily Mirror has pointed out, the original wording of the advertisement has been watered down to meet the mistaken sense of delicacy of the proprietors of the daily press."[74]

Correspondents to The Lancet agreed that "prudery, hypocrisy and cant"[75] continued to dog efforts to educate the public about the plain fact that V.D. was preventable. This body of opinion held that the pub-


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lic should be told that "if abstinence is not possible, a condom intelligently used will give a high degree of protection."[76] John Ryle, the first professor of social medicine, was criticized, for example, for taking only a long-term view of the need for social and economic change, and not acknowledging the immediate need to inform the public that "if during the next six months every man in the British Isles wore a condom for extramarital intercourse, syphilis . . . would disappear entirely."[77] The campaign continued throughout the war, and the demobilized population was targeted by new propaganda in 1945 and 1946.[78]


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