Monthly Archives: March 2016

The Use of Medical Testimony in Personal Injury Cases

Coal-miner Thomas Brennan appeared before the Court of Session in Edinburgh in 1955 to seek £3,000 reparation from his employer, the National Coal Board (NCB), whom he claimed had failed to adequately protect his safety. Brennan referred to an incident that had occurred in a coal-mine five years previously. On 10th February 1950, Brennan had been proceeding to his place of work via an underground roadway owned and operated by the NCB. Yet the roadway was slippery and steep, according to Brennan, and it was because of this, he claimed, that he fell with such force that he sustained a hernia. He further averred that he had developed traumatic neurasthenia following the accident, characterised, according to Brennan’s GP, by nervousness, insomnia, hand tremors and dizziness. The NCB disputed Brennan’s account, arguing that there were inconsistencies in the claimant’s story and that his hernia had, in fact, pre-dated his fall by around a decade.

Cases like this are central to my PhD. I focus on the medico-legal sequelae of traumatic accidents in twentieth-century Britain, pivotal to which are concepts like traumatic neurasthenia, neurosis or hysteria — labels which, though marked by considerable semantic slippage, were normally used in this period to refer to the sequelae of industrial or road traffic accidents by the numerous medical professionals who treated, examined and assessed accident-victims. Such accidents typically produced physical injuries of a mild or moderate nature, it was argued, yet also vague and long-lasting symptoms like headaches, dizziness, mood changes, restlessness, sleeplessness, gastric disturbance, social withdrawal or lack of appetite, libido or concentration. Often, these symptoms were causally attributed by psychiatrists, neurologists, orthopaedic surgeons and general practitioners to the systems of compensation and insurance made prevalent by private motorcar ownership and heavy industry. The thinking ran that post-accident symptoms, whilst often understandable, were unconsciously exaggerated or prolonged by the sufferer through the effort required to make and sustain a claim for compensation. As one neurologist commented in the 1940s: ‘The cumbersome machinery [of compensation] itself involves endless delays during which the workman’s symptoms, originally a “traumatic neurosis,” become transformed into a “condition neurosis” in the sustained effort required in a fight for compensation.’[1]

One theme that I am particularly interested in is the use of expert medical testimony in personal injury cases, and especially when claimants allege long-term traumatic sequelae. Brennan’s trial had no shortage of medical testimony, including from his GP, two psychiatrists and the NCB’s own doctor. Much of it related to whether or not Brennan had a hernia prior to his fall. But doctors were also asked to account for the claimant’s psychological sequelae. His GP, Dr. Robert Aitken, explained:

During the time [Brennan] was coming to me while he was still at work he was developing a condition — a hysterical condition. It was a form of traumatic hysteria. He said he was dizzy but we could find nothing wrong with his brain. He said he felt the skin on his legs and thigh was dead and he made all sorts of complaints for which we could find no organic cause. This condition is described as traumatic neurasthenia. I found no physical cause for this condition. […] I think that the man’s troubles are, as we say, upstairs. I am satisfied that the man’s condition prevented him from doing his work. There is no doubt about that.[2]

 

The involvement of medical experts in civil litigation has aroused little attention from historians and legal scholars, most of whom are more interested in criminal than civil law (or in PTSD and shell-shock than whiplash and traumatic neurosis). Those few studies to examine personal injury litigation have related the involvement of expert medical witnesses to the desire, on the part of insurers, to identify malingers, or else to the need for courts to deduce any motives on the part of the claimant.[3]

These arguments have some merit, but I think could be extended, following Jane F. Thrailkill’s suggestion, to include further reference to the unconscious: for, from the nineteenth century onwards, physicians argued they had privileged insight into the claimant’s unconscious, and could use this to illuminate not only motive but also offer an explanation of how the claimant’s post-accident sequelae had developed.[4] This assisted courts in several ways, not least in assessing the severity of the claimant’s disability. But medical testimony was also useful, I want to suggest, because of the perceived imperfections of the claimant’s memory.

I think it’s helpful at this stage to introduce a conceptual framework to understand the relationship between courts and memory. I want to suggest that, at least in personal injury cases, the modus operandi of the court was to act as a memory-retrieving machine: through the reconstruction of the accident and its sequelae, civil courts activated and acted as conduit for multiple forms of recollection — from claimants and their relatives, from eyewitnesses of the original accident and from expert medical witnesses who had examined the claimant. In effect, the court’s job was to contract different rhythms and durations of temporality into the one, single, homogenous time of the court. Yet this machinic process was subject, like the operation of any machine, to breakdown, interruption or atrophy depending on how its various components interacted. Judge or jury could be dissuaded by medical testimony if it contradicted their established ways of thinking about temporality or causality. As psychiatrist David Henderson, writing in 1956, explained:

The difficulty the psychiatrist is faced with in cases of compensation is the long interval which has elapsed between the accident and the psychiatrist’s examination. Months or years may have elapsed, and during that time the claim, instead of getting less, has usually become greatly increased, and the claimant’s condition aggravated and set […] Often the alleged disability is entirely out of proportion to the precipitating cause, but it may be difficult to prove that the accident has not been the main factor, especially when the person has been in employment until the time of the accident. For instance, a man 28 years old, who had suffered no serious physical injury but experienced a degree of shock, claimed four years later, when I examined him, that he suffered from “turns” and had had a serious loss of memory. In fact, his memory disturbance was a massive amnesia only compatible with a diagnosis of hysteria: the accident had been the precipitating factor, but it was not easy to convince a judge or jury of the true position.[5]

In other words, the court-as-memory-retrieving-machine was circumscribed in its movements and potential, governed by an over-arching set of rules and codifications — what memories judge and jury were willing to accept and also, we could add, what precedent and certain legal concepts permitted.

Indeed, many of these rules and codifications are still around today, in civil and criminal courts alike. Consider one further aspect of the court’s memory-retrieving machine — it pivots on a linear model of recollection. By this, I mean that courts insist upon an unmediated, near-perfect ability to recall past experiences and details. That memory is usually a dynamic process, and that recollection is impossible to insulate from other experiences and emotions, is not countenanced by the court. As has recently been argued with respect to sexual abuses cases (e.g., R. v Ghomeshi), courts require an unbroken, linear model of recollection, where the witness (or complainant) has to able to recall past events in such a way as to be unmediated by later experiences. Or as neurologist James Kirkwood Slater complained in 1948:

The law is well aware that students of applied psychology have all manner of recommendations for revolutionising the so-called commonsense method of obtaining evidence which for so long has stood the test of time. […] For instance they tell us that scores of memory variations can be discriminated. Let your friends, they say, describe how they have before their minds yesterday’s dinner table and the conversation around it, and there will not be two whose memory shows the same scheme and method. They urge that we should not ask a short-sighted man for the slight visual details of a far distant scene, yet it cannot be safer to ask a man of the acoustical memory type for strictly optical recollections…[6]

 

It is by bearing this in mind that we can properly grasp the function of the expert medical witness in personal injury cases: claimants, doctors argued, often had an unconscious or imperfect recollection of the events that had followed their accident. The claimant’s memory of their accident was too heavily coloured by the events that followed it (i.e., the various medical assessments and treatments the claimant had undergone). Indeed, in the cases that I have sampled, claimants were rarely cross-examined about their post-accident sequelae, with attention instead focussing on where they were at the time of their accident, what attempts they had made to check their own safety, etc.

Thus, when he testified in his case, Brennan was asked only briefly about his neurasthenic condition. Legal counsel were more interested in probing the account offered by medical experts. As Dr. Aitken observed:

[Brennan] is quite unaware of the whole business. He believes that something has happened as a result of the accident in his pelvic region — his groin region — and he believes this is the cause of all the trouble and he, accordingly, gets in a very unstable state. He is not capable of a sustained effort either in thinking or action. He isn’t capable of sitting down to thrash out a problem. […] If you asked him about his accident his hands would shake […] At times now when you are speaking to him you feel isn’t grasping properly what you are saying to him.[7]

Hence the involvement of medical experts: for the memory-retrieving machine to function, doctors were needed to bridge the divide between the claimant and the Court.

 

References
[1] James K. Slater, ‘Trauma and the Nervous System: With Particular Reference to Compensation and the Difficulties of Interpreting the Facts’, Edinburgh Medical Journal, vol. 53, no. 11 (1946), p. 640.
[2] National Archives of Scotland, CS258/1958/1704, ‘Notes of Evidence in Jury Trial: Thomas Brennan V. The National Coal Board’, 1958, p. 97.
[3] E.g., Danuta Mendelson, ‘English Medical Experts and the Claims for Shock Occasioned by Railway Collisions in the 1860s: Issues of Law, Ethics, and Medicine’, International Journal of Law and Psychiatry, vol. 25, no. 4 (2002), pp. 303-29.; Karen M. Odden, ‘Able and Intelligent Medical Men Meeting Together’: The Victorian Railway Crash, Medical Jurisprudence, and the Rise of Medical Authority, Journal of Victorian Culture, vol. 8, no. 1 (2003), pp. 33-54.
[4] See Jane F. Thrailkill, ‘Railway Spine, Nervous Excess and the Forensic Self’ in Laura Salisbury and Andrew Shail (eds), Neurology and Modernity: A Cultural History of Nervous Systems, 1800-1950 (Basingstoke, Hampshire and New York: Palgrave Macmillan, 2010), pp. 96-112.
[5] David Henderson, ‘Psychiatric Evidence in Court’, British Medical Journal, vol. 2, iss. 4983 (1956), p. 4.
[6] James K. Slater, ‘The Medical Man in the Witness Box’, Edinburgh Medical Journal , vol. 55, no. 10 (1948), p. 590.
[7] ‘Notes of Evidence in Jury Trial: Thomas Brennan V. The National Coal Board’, pp. 98-99.

Nonlinear Histories of Feminism

My interest in feminism is fairly limited. But I still enjoy engaging with feminist scholarship — it’s self-reflexive, usually intrepid and normally quite accessible. Furthermore, feminist scholarship has a creativeness to it, an intellectual restlessness. And when these features are turned to towards the feminist movement’s recent past, it animates a set of themes of interest to historians, such as chronology, causality and time. It is these issues that I want to probe in this post, using recent debates on the history of feminism as a conduit for thinking about historical narrative.

Traditionally, the history of feminism has been written with reference to waves — first-wave, second-wave, etc. Yet this narrative has been subject to several criticisms, most recently by Victoria Browne.9781137413154 In Feminism, Time, and Nonlinear History, she argues that there is a Whiggish, ‘progressive’ model of time inherent to the traditional history of feminism, where it is assumed that each wave supersedes, and thereby improves upon, the previous one. Amongst other things, Browne suggests that this approach limits the radical potential of certain sections of the feminism movement — schisms are created between feminists of different generations, whilst any attempt to re-animate, or learn from, past waves is perceived as backwards or anachronistic. Feminism, Time, and Nonlinear History therefore advocates for a less restrictive understanding of time, one that acknowledges nonlinearity and respects the different ways in which events are experienced, understood, become resonant. Browne contends that feminists need to develop a more nuanced approach to history, dispensing with notions of linearity and continuity in favour of repetition, reinvention or re-appropriation.

There is promise in Browne’s work (a full review of which an be found here). I am especially taken with her discussion on the need to rethink the linearity of time and accept that temporality can move in multiple directions. Her comments connect with a similar argument made by Claire Colebrook, who has also critiqued the Whiggish narrative of feminism. Yet Colebrook stresses a different way of reading history to Browne, one that is reliant on a Deleuzean theory of time (c.f., Browne’s criticisms of Deleuze).

What Colebrook calls ‘stratigraphic time’ refers to the potential for each event to be both of its time and thoroughly untimely: an event, she argues, can follow others events in a chronological sequence, but can also reconfigure that sequence in new ways. Think of the archetypical artist, to take one hypothetical example. Let’s say her work is largely unappreciated and ignored during her lifetime. But let’s also say that the occasion of her death imbibes her earlier work with fresh significance and meaning. Her death is thus an event in time, which followed others events in a chronological sequence; but it also possessed a potential to retroactively animate earlier events, the artist’s life and artwork.

Moreover, consider the examples used by Colebrook. She argues that the creation of new philosophical concepts like subjectivity were products of their time, but allowed the re-reading of earlier philosophical texts with this new knowledge in mind (e.g., Plato could now be read by someone interested in subject-positions). Likewise, capitalism is/was a product of its time and followed feudalism in a chronological sequence. Yet capitalism was also able to fold time back upon itself, for it was only after its emergence that we could reinterpret earlier feudal societies in terms of the concepts capitalism prized (e.g., the exchange of labour) or created (e.g., the modern family).

By relying on this reading of stratigraphic time, Colebrook is able to argue for a different role for the past in the feminist movement’s present. The past need not simply be disconnected or studied in isolation from the present. Feminism can be both historicist and counter-historicist — it can contextualise texts but also read them anew, from new perspectives and with recourse to different values. In so doing, the past can be affirmative, productive even: we can read earlier texts ‘not according to the time within which [they] occurred to a time [they] might enable.’ The past can animate new futures.

Now, I have little to say on Browne/Colebrook’s contribution to feminist debate: I am not a card-carrying member of the movement, and, were they written down, my feminist credentials could not fill the back of a postage-stamp. But there’s an obvious spillover between the history of feminism and the writing of history more broadly. My attraction to Browne and Colebrook is that they both challenge the idea of time as linear, singular and infinite. But, more significantly, they decouple temporality from causality — e.g., just because third-wave follows second-wave feminism chronologically does not mean that the former cannot operate on the latter, cannot imbibe it with new meanings, new values. The implications of this debate on history-writing are wide-ranging (imagine composing a historical narrative that privileged the retroactive movement of causality, of the way in which time folds continuously back upon itself). It’s for this reason that I remain an avid reader of feminist philosophy: it has a heuristic value, an ability to produce new ways of knowing, thinking, becoming. If we let it, feminist debates over history can fold back upon, and radically transform, how we write history.

Historical Research and Data Protection

I have spent the past few days re-familiarising myself with the Data Protection Act (DPA) – partly because of forthcoming blog-posts I want to write, partly because of recent debates over confidentiality and historical research (for example, see here or here). My research relies quite heavily on archival sources relating to living (or assumed to be living) subjects, and this places particular legal responsibilities on how I secure and disseminate my research, in accordance with the DPA.

I want this week to therefore post a summary, mediated by my own experience, of how the DPA affects historical research. Though I am not in any way an expert on information law, I have reviewed several thousand sensitive patient-files, medico-legal reports and court records throughout my PhD, and offer the following overview in the hope that it might act as a useful starting-point for historians wishing to learn more about the DPA.

 

A Brief Introduction.

The DPA came into effect in 2000, and regulates the use of ‘personal data’ (that is, information related to a living subject, which may be used to identify that subject, and which is being processed or recorded in an accessible, organised way and/or with a view to its later systemisation). The Act defines ‘sensitive’ personal data as that relating to a living subject’s race/ethnicity, religion, political views, physical/mental health, criminal record or any pending or concluded criminal allegations. Sensitive data is to be handled more strictly than others forms of personal data, and there are further restrictions on who can collect it. Consent is usually required if an organisation or individual wishes to collect or hold personal data or sensitive personal data.

The DPA is relevant to any historian ‘processing’ – that is, obtaining, recording or holding – personal data on a living subject or a subject assumed to still be alive. In retaining personal data on a living subject, researchers become its ‘controller’, meaning that they are responsible for that data and have to ensure that they comply with the terms of the DPA. Failure to do so may involve investigation and/or sanction from the Information Commissioner’s Office (ICO) or legal action from the data-subject.

Historians are likely to process or obtain personal data in two ways:

  1. In an archival setting (any notes/photographs/photocopies you take/make may contain personal data); and
  2. In an oral history interview (your recording of the interview will almost always be classed as personal data, as will any consent-form that you ask the interviewee to sign; if you have a list of interviewee’s names/contact-details then this is personal data; written transcripts that are derived from the recording will contain personal data unless they are anonymised).

In my experience, the DPA affects the research-process at three stages – when negotiating access to the archive, when in the field and when in the later retention/dissemination of research-materials.

 

The DPA and Archival Access.

The DPA is governed by eight foundational principles. I paraphrase them as follows:

  1. That data is processed fairly and lawfully;
  2. That data shall be processed/retained only for specific, lawful purposes;
  3. That data should be processed/retained in a way that is adequate for the data-controller’s purposes (i.e., not excessive);
  4. That all data held should, as far as possible, be accurate;
  5. That data should not be retained for longer than is necessary;
  6. That subjects have certain rights with respect to their data (e.g., a right to claim compensation if the data-guardian breaks the DPA);
  7. That data should be appropriately secured;
  8. That data should not be transferred outside of the European Economic Area unless the host country or jurisdiction ensures adequate protections.

None of these principles offer much succour to the historian interested in the recent past (e.g., Principle 5 would pose all sorts of issues for storing materials in archives long-term). But consider the following qualifications to the DPA.

Firstly, note that the Act only applies to living subjects: the DPA does not apply to subjects who have already died, so long as this can be proven. The Act does not stipulate what happens if the subject’s death is unknown. But there is a provision (specifically, section 51(4)) that allows the Information Commissioner to liaise with various trade associations to establish best practice. This is precisely what the Commissioner did with various archival bodies over a decade ago, and who agreed on using the 100-year rule when in doubt. Thus, if a subject is over 100-years old, then it is assumed that they are no longer living, and the DPA does not apply. (What happens when the subject’s age cannot be calculated is explained here). If you are using personal data relating to a subject born before 1916, therefore, then the DPA will not impact on your research.

I have heard some contemporary historians bemoan how the DPA stymies access to twentieth-century records. Certainly, the Act does impose some limitations, but it is incorrect to assume that it denies all researchers access to personal data on living subjects. Note this – even if you are working with living subjects, the DPA need not necessarily apply. There is a second exemption from the Act, and it’s a fairly big one.

Section 33 offers qualified exemption for the purposes of historical or statistical research, provided that two conditions are met. These are:

  1. That the data are not processed to support measures or decisions with respect to particular individuals; and
  2. That the data are not processed in such a way that substantial damage or substantial distress is, or is likely to be, caused to any data subject.

I would suggest that these conditions are easy to achieve for practising historians, so long as care is taken in how research is disseminated (historians, furthermore, are unlikely to be taking decisions on living subjects). So long as both of these conditions are met, Section 33 grants exemption from certain aspects of the DPA, specifically:

(2) For the purposes of the second data protection principle, the further processing of personal data only for research purposes in compliance with the relevant conditions is not to be regarded as incompatible with the purposes for which they were obtained.

A very roundabout, obtuse way of saying that Principle 2 need not always apply to researchers, that data can be re-used in a way that it was never originally intended for. Note the circumspect use of language, however – this exemption does not completely invalidate Principle 2, only that re-processing data is ‘not to be regarded as incompatible’ with it.

(3) Personal data which are processed only for research purposes in compliance with the relevant conditions may, notwithstanding the fifth data protection principle, be kept indefinitely.

A much clearer point. You know how Principle 5 states that data must be held for no longer than necessary? Well, that doesn’t apply to historical research. Archives can keep personal data on living subjects for as long as they like; oral historians can do the same.

(4) Personal data which are processed only for research purposes are exempt from section 7 if —

(a) they are processed in compliance with the relevant conditions; and

(b) the results of the research or any resulting statistics are not made available in a form which identifies data subjects or any of them.

The ‘relevant conditions’ are those that I identified earlier (that data is not processed to make decisions about living subjects, that data is not processed in such a way that causes distress). Researchers are exempt from section 7 – which relates to the security of data – provided that they subscribe to the (a) ‘relevant conditions’ and ensure that (b) it is not possible to identify data-subjects from the re-processing of the data.

(5) For the purposes of subsections (2) to (4) personal data are not to be treated as processed otherwise than for research purposes merely because the data are disclosed —

(a) to any person, for research purposes only;

(b) to the data subject or a person acting on his behalf;

(c) at the request, or with the consent, of the data subject or a person acting on his behalf; or

(d) in circumstances in which the person making the disclosure has reasonable grounds for believing that the disclosure falls within paragraph (a), (b) or (c).

This sub-section qualifies the preceding points, and states that personal data is not to be treated as ‘for research purposes’ simply because it has been disclosed for reasons a, b, c or d. In other words, just because data has been distributed to a bona fide researcher by whoever controls the data, does not automatically mean that that data is covered by Section 33.

 

Now, Section 33 does not guarantee access to particular collections of personal data. Discretion in granting access still remains with the data-guardian (e.g., the archivist(s)), who must be satisfied that the disclosure of data is (i) not going to be used to make judgements about a living subject and (ii) is not going to be used to cause them harm or distress.

In my experience, most archives are willing to grant access to personal data provided that the researcher accepts these undertakings. In other words, just because an archive holds personal data on living subjects does not mean that you are automatically barred from access. Section 33 allows data-holders to exercise their discretion, provided that you can convince them of your scholarly intentions.

 

The DPA in the Field.

Adherence to the DPA is an ongoing process, and research in situ – either in an archive or when conducting oral history interviews – raises certain challenges. I can think of two.

Firstly, be mindful of Section 33 (4). Principle 7, which relates to security, does not apply if you make it impossible to identify the subject when re-processing the data. But this is perhaps easier said than done. For example, if you record an oral history interview, and the interviewee divulges identifying information (which they will), then the recording is now outside the terms of Section 33(4) and therefore in need of appropriate safeguarding. (Indeed, I would suggest that anonymity is never fully possible to achieve in interviews anyway, as those with privileged insight – such as family members – will always be able to identify the data-subject if given access to a recording or transcript.)

It is a little easier to anonymise personal data in an archival setting, as you can choose not to record a subject’s identifying features in your written notes. But how many historians take notes nowadays? I often take pictures for reasons of speed, not bothering to conceal personal data from my images (sometimes it’s just not possible, or there is too much data, etc.) These photographs thus contain data that, just like the oral history recording, cannot be exempt from the DPA and so must be appropriately secured under Principle 7.

Furthermore, even if you can anonymise your notes, you might not actually want to. For instance, you may need to record personal data for constructing an identifier-key (discussed here), if a collection is incompletely or imperfectly catalogued (oral historians will require an identifier-key anyway, to connect their recordings with the pseudonymous transcripts later derive from them).

Unless you are a scrupulous note-taker, and eschew the use of photography, I suspect that you will have recorded some personal data whilst working in an archive. This is not a problem under the DPA; it just means that you are now the controller of that data, and need to have a system in place to adequately secure it. Oral historians will record lots of personal data, and their need to secure it is just as paramount.

 

Research-Dissemination/Retention.

There are some final issues of compliance needed after having obtained (via interviews) or processed (via archives) personal data. You have obligations under the DPA in terms of how you disseminate this research and how you retain it.

With respect to dissemination, I would advise not to put any personal data into the public domain (via presentations, publications, exhibitions, etc). There are exceptions countenanced by the DPA (e.g., an interviewee may allow you to). But you are on much safer ground if you anonymise all of the personal data that you put into the public domain. This is for two reasons. Firstly, remember that Section 33 of the DPA grants an exemption to historical researchers to access personal data, so long as, in so doing, they do not cause distress/damage to the data-subject. Yet this is ill-defined by the Act, and many data-guardians therefore encourage a cautious approach to dissemination. Best practice is to anonymise everything you disseminate; it just works out safer this way.

There is a second reason why I encourage researchers to anonymise data they place into the public domain, for Section 33 of the DPA does not excuse researchers from Principle 6. Data-subjects may therefore request that they see all personal data that you hold on them. Now, this is unlikely to happen to oral historians (as I assume there would be some relationship of trust between interviewer and interviewee). But for archival research, there is a risk that data-subjects could identify themselves from your publications, exhibitions, etc. In that situation, they are entitled to request what information you hold about them, even if you have simply taken that information from somewhere else. Be very, very mindful, therefore, of how you disseminate your research.

(The ICO’s website offers some helpful guidance on how to anonymise personal data to prevent it being used to identify data-subjects. Again, I would suggest that it is never possible to fully anonymise what you place into the public domain, as those with privileged knowledge will always be able to guess who data-subjects are. Nevertheless, you should aim to make it as difficult as possible to work out whom any personal data you hold belongs to.)

There are other challenges associated with data retention and security, too. Remember that section 33 (3) of the DPA obviates the need to destroy personal data immediately upon the conclusion of your research. However, if you have not anonymised the personal data you hold, then you need to keep it secure, in-keeping with Principle 7. (I suspect that you will not want/be able to anonymise all of the personal data you hold, as you may want to return to it later in your career or whatever).

The main issue with long-term retention of personal data is security. Written or hard-copies of personal data should be handled with commonsense (i.e., not leaving your notes lying around for others to read). I have known of one archive to request that notes are transferred by the researcher in a locked briefcase, but this is fairly exceptional.

If the data is held electronically (oral history recordings or photographs/notes), then best practice is to encrypt or password-protect the individual files (.mp4 or .jpeg), or the media on which they are stored (i.e., the hard-drive of your computer). This is the most effective way of limiting the fall-out of having data stolen, lost or accessed inappropriately. Also remember that you will need to encrypt any back-ups/copies you make of the personal data, and protect the data if it is transmitted at some stage in the future (e.g., if you migrate your data to a new computer). The ICO has some useful advice on encryption (and it’s fairly easy to activate on either Windows or Mac). If you wish to make hard-copies of any electronically-held personal data, then commonsense rules apply.

Furthermore, you should limit access to the personal data you hold as far as possible, preferably just to yourself (or to one researcher if you work as part of a team). You can share personal data with other researchers, but they must handle it appropriately (they become responsible under the DPA, just as you are). I would strongly discourage this practice, however, and would personally refuse if another academic requested that I show them the personal data on which my research is based (they can go and visit the archive where I processed it from if they’re that bothered).

A final comment on storage-clouds, either services like DropBox or internal university networks. Note Principle 8. This need not apply if the data-subject consents that you can transfer their personal data. However, if the subject refuses consent (or consent is not sought), then you should still be alright. Although most data-storage clouds are based in the US,  the EU has recently struck a deal with American authorities to ensure that firms based there are compliant with legislation like the DPA. You should therefore not be in violation of Principle 8 if you decide to use a cloud-based service based in the US, at least for the foreseeable future.  However, I would still be careful in what you upload to cloud-based services – pick a strong password, etc., or someone may gain access to the personal data you hold. I would also recommend that you encrypt anything that you upload to a cloud platform. I’d do the same with any personal data that I store on an internal university network, and I’d think carefully before relying on one (you need to be confident that no-one else will have access to the files you upload).

Guide to Further Reading.

You can consult the DPA here (or as a PDF here).

Oral historians are spoilt for choice when it comes to issues of data protection and ethics, especially from the Oral History Society (e.g., see here).

The UK Data Archive also has some useful guidance on anonymisation and the DPA.

Many archives offer advice to researchers, too, on compliance with the DPA. In particular, see the advice from the National Archives of Scotland (here) and the Modern Records Centre (here). The National Archives have also produced a very detailed guide for archivists and other data-guardians, which I recommend that historians peruse as it’s very comprehensive.

Conceptualising Time and (Re)Thinking History.

Two newspaper articles have caught my eye recently as they, somewhat obtusely, pivot around themes central to how we study the past; they illustrate what are, I think, deep and profound challenges to writing history in the way that we currently do.

Firstly, the Financial Times. A few weekends ago, it carried a feature on so-called ‘millennials’, the generation born between c.1980 and 2000, who are characterised by both a lack of brand loyalty and an unwillingness to plan long-term. The article pondered the economic consequences of millennials’ spending, and expressed concern that they would rather, say, blow their savings on a holiday than hoard it for retirement.

Elsewhere, Wednesday’s Guardian carried a long, densely-packed article on the haunting past, of how various cultures appropriate past grievances or atrocities for present-day ends. Its author, journalist David Rieff, is of the view that we are now overburdened by memory, that both western and non-western societies alike need to move on and learn to forget. He asks:

What if collective historical memory, as it is actually employed by communities and nations, has led far too often to war rather than peace, to rancour and resentment rather than reconciliation, and the determination to exact revenge for injuries both real and imagined, rather than to commit to the hard work of forgiveness?

 

My interest is not whether millennials actually exist as a homogenous social group. Nor do I have a strong opinion on whether we should let the past be the past. Instead, I think it is more profitable to reflect on the temporal relationship that these phenomena express, and what this means for academic history.

I would suggest that millennials are a product of what François Hartog identifies as the new regime of presentism, of a culture that privileges the here and now over the past or future — millennials live entirely in the moment, we are told, with no concern for their past (brand loyalty) or future (retirement).[1] They are imbricated in, shaped by, a culture of instantaneity (online shopping, dating, etc.) and financial short-termism (after all, what is the purpose of low interest-rates if not to encourage spending over saving?).[2]

Hartog’s regime of the present finds expression in Rieff’s article, too, in his references to what scholars dub ‘retrospective justice’ (i.e., attempts, in the present, to right the perceived wrongs of the past).[3] Reiff alludes to various conflicts, from the middle-east to Bosnia, where collective memory and national identity have been mobilised to commit all nature of atrocities. We could extend his discussion further: the UK is awash with allegations of child sexual abuse against former politicians, children’s entertainers and celebrities. A number of inquiries and investigations are being pursued, and they have been motivated, I would suggest, by a similar use of  memory as in the conflicts discussed by Rieff; they, too, have created a new, present-day framework for viewing the past, one that emerged following the death of Jimmy Savile in 2011, and which is animated by the believed superiority of present-day knowledge, or of knowing what we know now.[4] These inquiries are also facilitated by the new centrality of trauma to medical thought and are further bound up with, and enabled by, what Hartog identifies as the rise of ‘victim culture’ in the twentieth century. Instances of retrospective justice, in other words, are a product of present-day concerns and values, and have colonised the past in their image.

That our age privileges the present, and violates the past-present distinction, is of significance to academic history, for it challenges our comonsense understanding of time, the backbone of historical research. Generally speaking, time acts as a medium or plane through which historians can locate events, and is often conceived, rather simplistically, as objective, neutral, chronological, universal, singular and unending. Furthermore, historians install a firm demarcation between the past and the present in their writings, and stress the linearity of time. Hence why any attempt to impose present-day values onto the past is anathema: historians insist that the past is and should remain detached from the present.

There seems little appetite for moving away from this model of time. Indeed, my worry is that historians will simply capture, and thereby mollify, new temporal challenges within pre-existing narratives, that the discipline has nothing novel or insightful to say about what is changing in front of us. Disconcertingly, historians often assume that time just exists, and eschew any attempt to conceptualise it more thoroughly. Witness the way in which ‘big history’ and ‘deep history’, recent attempts to study the past across long durations, posit time as central to their methodology but then fail to conceive of it as anything other than a neutral, objective medium for stratifying events.

The recent debates over the emotional dynamics of historical research are another case in point. Incorporating themes such as distance, fantasy, presence, affect and materiality, these debates have found their fullest articulation in historical research influenced by queer studies, feminism, trauma theory and psychoanalysis.[5] Its adherents are all in broad agreement that researching and writing about the past implicates the historian’s psychology, facilitating emotional investments between scholar and the object of her study that transcend temporal distance.[6] But though at first glance such histories suggest a willingness to experiment with a new past-present relationship, they follow traditional accounts in relying on the distinction between a temporally demarcated then and now. For ‘affective history’, past-present connections can be formed through an emotional bond, but this can only ever be a bridge between — not a dismantling of — the separate domains of past and present. The historian’s belief in the linearity of time remains unshaken.

Why historians privilege this linear model of time over any other is unclear. It stymies any attempt to engage imaginatively with the new past-present relationship, and seems quaint when considered from the perspective of a physicist or anthropologist (whose disciplines long ago discarded the belief in universal, objective, linear time). Indeed, there is something naive in relying on a temporal model that assumes an ‘objective’ plane in which all events can be located, and made all the more so given the energy devoted by historians to rescuing those disempowered by class, race, gender and other distinctions. I would also ask whether historians (plus journalists like Rieff), in claiming that time is objective, neutral and irreversible, eschew moral engagement with the past and excuse themselves from historical acts of injustice (imagine telling a proven victim of abuse or sufferer of PTSD that their experiences are in the past, no longer of validity or importance).[7]

So, how should historians respond to this new present-centric culture? Outright denial would risk estrangement and instead offer further evidence of historians’ disdain of anything that smacks of ‘theory’. Hartog’s response, meanwhile, is insipid and reactionary, articulating a wish that historians vigorously (but fruitlessly) police the new culture of the present whilst preaching the importance of the past-present divide. My own view is that history needs to reflect the temporal order around it — that is, historians need to be more self-critical of their understanding of time, more open (indeed, experimental) with the concepts that they adopt. They need to respond to the new cult of the present, not by entrenching old concepts but by working to create new methodologies. I don’t know what form the eventual solution(s) will take, but I don’t think it’ll emerge until we look more critically at what we’ve got.

Footnotes.

[1] François Hartog, Regimes of Historicity: Presentism and Experiences of Time, trans. by Saskia Brown (New York: Columbia University Press, 2015).
[2] A culture of instantaneity that I am bound up in, too (why is blogging so popular, if not for its immediacy, its unmediated dissemination of ideas?)
[3] On retrospective justice, see Berber Bevernage, History, Memory, and State-Sponsored Violence: Time and Justice (London and New York: Routledge, 2012).
[4] As allegations were made against Ted Heath in the summer of last year, an article in one broadsheet explained: ‘So what should we read into new police investigations [into Heath]? Probably not too much at this stage. As we know now, historically the police failed to take this type of allegation seriously and ignored or possibly covered up child abuse claims made against prominent individuals such as Cyril Smith and Jimmy Savile.’ The italics are my own. See Oliver Wright, ‘The Allegations Multiply, But Why Now? And Where Did They All Come From?’, The Independent, 5 August 2015, p. 5.
[5] On recent histories that engage with affect, fantasy and distance, see Joan Wallach Scott, The Fantasy of Feminist History (Durham, NC: Duke University Press, 2011).; Laura Doan, Disturbing Practices: History, Sexuality, and Women’s Experiences of Modern War (Chicago: Chicago University Press, 2013).; Eelco Runia, ‘Presence’, History and Theory, vol. 45, no. 1 (2006), pp. 1-29.; and Mark Salber Phillips, ‘Distance and Historical Representation’, History Workshop Journal, iss. 57 (2004), pp. 123-141.
[6] On this, see Barbara Taylor, ‘Historical Subjectivity’ in Sally Alexander and Barbara Taylor (eds), History and Psyche: Culture, Psychoanalysis, and the Past (Basingstoke, Hampshire: Palgrave Macmillan, 2013), pp. 195-210.
[7] To be clear, Reiff does not advocate this position, nor come close to it. My point is that, in less sympathetic hands, this is where an argument like his could lead.