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Topics : Confidentiality and Duty to Report |
Medical diagnosis and treatment produce information useful to direct patient care and a variety of other social circumstances. It has been a traditional precept of medical ethics, however, that confidentiality in health care is the best way to protect the well-being of patients. For this reason, there is a strong presumption that information produced in the course of health care may not ordinarily be disclosed without the patient’s permission. This chapter examines the ethical and legal foundations of confidentiality within medical relationships. Both ethics and the law support a strong presumption in favor of medical confidentiality. That confidentiality is not, however, absolute, and there are justifiable exceptions, as described below. Ethical and Legal Reasons for ConfidentialityThere is strong ethical and legal agreement that medical relationships ought to be respected as confidential. This agreement is as old as the Hippocratic Oath which says: “What I may 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 of.” This counsel was designed to protect patients from rumor and social judgment. Many of the purposes of confidentiality remain the same 2500 years later. The Declaration of Geneva oath (formulated following World War II and updated in 1982), which is administered to many medical school graduates, declares: “I will respect the secrets which are confided in me, even after the patient has died.” The American Medical Association asserts “The physician should not reveal confidential communications or information without the express consent of the patient, unless required to do so by law.” Many ethical theories insist on respecting individuals as the central figures in decisions affecting their life choices. One way to do so is to respect the confidentiality of medical information: regardless of consequences, it is important to respect the way in which patients want information to be kept confidential. This is a way of respecting the individual dignity of a person, and not as a means to some other social end. There are also consequentialist reasons for maintaining confidentiality. Confidentiality protects people in vulnerable states. It also encourages patients to be entirely candid about their injuries and disorders. If patients fear that information about their illnesses and treatments will be broadcast, they may withhold information, and medical management may be compromised. If physicians routinely breach confidentiality, it is feared patients will not trust them. This effect may be highly prejudicial to the management of somatic disease and may be especially damaging in psychiatric relationships. The law also respects the need for confidentiality in medical treatment. It approaches the matter as one of privacy. Both statute and court interpretations protect patients from unwanted disclosures of information gathered in the course of health care. Most state laws protect patient communications as a matter of privileged communication, something not to be disclosed without permission or legally recognized reason. Because many health care workers need access to information about
a patient, protecting confidentiality is often a challenge in health
care institutions. For example, well-meaning family members may
want to know a diagnosis the patient does not wish disclosed. For
example, a man might not want his family to know, for example, that
he has been diagnosed with AIDS. Family members visiting in the
hospital may, however, press medical staff to disclose a specific
diagnosis. Under these circumstances, doctors and nurses can feel
an obligation to advise the family even against the wishes of the
patient. Indeed, the most tempting reasons to breach confidentiality
are those in which it appears that some good can be achieved. Nevertheless,
a strong presumption of confidentiality should be maintained in
health care relationships.
Exceptions to Strict Confidentiality
Patient Waiver. Confidential information may be disclosed with the consent of the patient. Under such circumstances, a patient is considered to have waived his or her right to confidentiality. In practice, this may be the most common form of disclosure made by physicians who routinely file medical reports with insurers and employers. Specific Diseases, Injuries, or Treatments. Public health agencies monitor the incidence and prevalence of certain diseases and doing so requires access to a broad range of medical information. Public health laws also may require the reporting of certain injuries, especially those of an involuntary nature. Such injuries include those caused by the discharge of a firearm or any injury sustained in the course of a criminal offense such as sexual assault or child abuse. Threats of Self-harm. If a patient threatens harm against him or herself, there can be ethical and legal justification for disclosing that information to a third party if that disclosure will help prevent that harm. For example, a physician of a 24-year old suicidal patient might advise the patient’s mother--with whom he lives--that her son is in imminent danger of committing suicide, provided the mother is somehow situated to help prevent that harm. If a relative (a distant cousin or aged uncle) had no identifiable relationship with the patient, and indeed lived on the other side of the country, and the physician had no reason to believe that this disclosure would help prevent the harm, there would be correspondingly far less justification for this breach of confidentiality. Endangered Third Parties. Much discussed in the literature – perhaps out of proportion to its likelihood – is the question of physician responsibility to advise third parties about dangers posed by their by patients. Such dangers include threatened violence or infectious disease. It is the consensus of that law that if a physician has reason to believe that a patient in his or her care is highly likely to harm a specifically identified individual, that physician has a duty to make reasonable efforts to warn that individual. The 1976 case, Tarasoff v. Board of Regents of the University of California, was decisive in establishing this legal duty to warn. In this case, a physician failed to warn a woman that a man whom she had previously dated had declared his intentions to kill her. When he did kill her, her parents successfully sued the physician and university who employed him for failure to warn of the danger. The court held that the physician had a duty to disclose a specific threat to a specific individual. There does not exist a comparable duty when a threat is made against society in general or a group that the physician could not possibly hope to identify or forewarn. If a patient, for example, swore that he wanted to hurt all left-wing sympathizers, there is no duty to identify and warn all left-wing sympathizers since a physician obviously has no way to identify and warn all left-wing sympathizers in the nation. The extent of a duty to warn is also a matter of debate since it is not always clear what counts as a believable threat of imminent harm to another. Threats against particular individuals do not inevitably end in violence. Some patients routinely make threats of violence that do not in fact materialize. For example, an adolescent patient may routinely threaten to kill her mother, without any form of violence against the mother ever materializing. That being the case, physicians are sometimes in grey areas with regard to their duties to report. It is also feared that this duty to report will undermine patient’s willingness to be open in psychiatric (and other) relationships. Some practitioners, however, advise patients at the beginning of relationships that they will be obliged to disclose threats to harm. At the present time, questions of the duty to warn endangered parties have often been raised in regard to tuberculosis and HIV infection. In some states, certain diseases may be reported to a public health agency which will then conduct “contact tracing” in order to warn people that they may have been exposed to a communicable disease. In these instances, physician’s duties to warn are, in practice, limited to report their patients to the relevant state agency. Nevertheless, physicians may have duties in regard to involuntary disclosure of, say, HIV infections to identified spouses or sexual partners of their patients. The extent of this responsibility remains, to be sure, a matter of continuing debate. All states have laws that require reporting of circumstances that endanger child welfare. While a patient without children may be protected in regard to medical information regarding his drug use, a patient with children has no such guarantee--as state laws require that physicians identify to state agencies those parents whose drug use endangers their children. This breach is justified in the name of protecting the welfare of children, judged to be more socially important than medical confidentiality in regard to drug use under these circumstances. Under some circumstances, physicians may wonder whether it is better to try and keep a family intact rather than report the endangerment of children that may see state agencies dismantling a family altogether. Physicians will, therefore, continue to face difficult questions
about whether and to what extent to breach confidentiality in regard
to patients with, for example, HIV infection and other communicable
conditions as well as threats of violence. Confidentiality for MinorsMinors are not recognized by either ethics or the law as having the same entitlement to confidentiality as adults. As a matter of course, physicians ought to involve parents in decisions about the medical treatment of their children. Children do have, though, some rights to confidentiality and entitlement to make treatment decisions independent of their parents' wishes, especially maturing adolescents. According to the specifications set by law in each state, adolescents may seek, for example, psychiatric treatment, birth control measures, and abortions without notification or parental consent. Under these circumstances, adolescents are entitled to the sort of medical confidentiality that would be accorded an adult. In Illinois, for example, children aged 12 and higher may receive treatment in regard to sexually communicable diseases, drug use, alcohol use without parental notification or consent. Even with these provisions in place, adolescent patients will pose dilemmatic questions about breach of confidentiality in regard to their sexual behavior, contraceptive and other birth control practices, drug use, and so on – because there can be ambiguity about what the best way to serve the adolescent’s interests is. A duty to disclose may also fundamentally disrupt a family, even when undertaken in the child's best interest. For example, a physician’s duty to report a child endangered by parents’ drug use (reports required by law) can destroy that family if the responsible state agency decides that children are so endangered that they should be removed from the home. It is not always clear that removing a child from a troubled home is better than putting that child into the custody of the state, especially when foster parenting arrangements and the like are problematic.
Statutory DutiesEvery state provides that certain conditions are reportable to prosecuting authorities. For example, in Illinois, gunshot injuries are reportable conditions. Every physician who comes to treat a gunshot wound must report the injury to a local law enforcement agency. The logic of this duty is that it is better for society to know who is being injured by guns than to have that information shielded as a matter of individual medical records. In effect, this kind of reporting duty presumes that every gunshot injury involves a crime until proven otherwise. In fact, Illinois statute provides that physicians are obliged to report any injury sustained in the commission of a crime or any injury sustained as the result of a crime. For example, physicians are obliged as a matter of statute to report the sexual abuse of children and the physical abuse of elderly people. So strongly is the view held that child abuse must be reported that Illinois statutes go to great length to impose a duty to report on a very broad class of people who may come into contact with injured children: physicians, residents, interns, hospitals, hospital administrators, surgeons, dentists, dental hygienists, chiropractors, podiatrists, substance abuse treatment counselors, Christian Science practitioners, coroners, medical examiners, crisis hotline personnel, truant officers, social workers, nurses, licensed practical nurses, nursery school directors, and so on. In Illinois, these reports are ultimately filed with the Department of Children and Family Services, though they may be filed by way of local law enforcement agencies. Reporting instances of suspected abuse may require physician testimony in court, as to the nature and extent of the injuries and their probable origin. Certain statements made by patients in these circumstances may be admissible in court even if they constitute hearsay. That is, the patient may tell the physician how he or she came to have the injuries in question, and the physician may be called upon to report those statements to a court even though the physician was not a witness to the circumstances and has no independent ability to confirm whether those statements are accurate or not. Physicians are liable with both criminal and civil penalties failure
to report injuries specified by statute. Physicians who fail to
refer will also be referred to the state medical disciplinary board
for consideration of the effect of their failure on their medical
license to practice. Court Order Legal DefenseShould a patient or other party accuse a physician of criminal or civil wrong-doing, every state has some provision for the introduction of patient records into the defense of the physician. For example, if a patient accuses a physician of failure to diagnose and treat a particular condition, the physician is entitled to use documents regarding the diagnosis and treatment of that patient in defense proceedings. These state provisions rectify what had been a problem in some jurisdictions earlier in the century, namely the claim that because medical records were confidential they could not be used in court proceedings. Case for Discussion : A Family’s SecretsMr. John Robertson is a 30-year-old man with Klinefelter Syndrome (KS), in which means he has an XXY sex chromosome karyotype. He and his wife consult a family medicine physician in their neighborhood, Dr. Jason Fullerton, in order to receive counseling about the likelihood of passing this condition on to any children they might have. In fact, Lana Robertson is at that time 8 or 9 weeks pregnant. Dr. Fullerton immediately counseled amniocentesis, but Mrs. Robertson failed to keep the appointment and showed up again at Dr. Fullerton’s office only in her 26th or 27th week of pregnancy. She previously had a stillborn daughter in a previous marriage and told Dr. Fullerton that she didn’t want to have any “bad news” during pregnancy because she couldn’t face the prospect of an abortion. In fact, she went on to deliver a healthy son. Mr. Robertson remained in contact with Dr. Fullerton, calling from time to time to inquire about any developments in the study of Klinefelter Syndrome and to inquire whether Dr. Fullerton was sure his son was not affected. In fact, Mr. Robertson told Dr. Fullerton that he was surprised that he could father a child at all. He remembered that a counsellor had told him a long time ago he would probably not be able to have children. He wondered, therefore, whether the child was really his and suspected his wife had become pregnant by another man. Dr. Fullerton responded by saying that while most men with Klinefelter Syndrome were not fertile, there were a few reported cases of affected men fathering children. In the meantime, during this same period, Mrs. Robertson began dropping broad hints to Dr. Fullerton that Mr. Robertson was not the father of here child. She broached this topic by asking Dr. Fullerton if the boy should be tested for more genetic conditions, “you know, if his father had some genetic conditions that weren’t obvious.” Dr. Fullerton wondered what his responsibilities were in regard to testing the paternity of the child and disclosure of the results to both Mr. and Mrs. Robertson. Study Questions
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