ISD I
Ethics/Humanities/Health Law
Wednesday, May 7, 2-3:30 p.m.
This package contains:
You should also (re)read chapter 3 of Doing
Right by Philip C. Hebert
Learning Objectives
In this session you will:
Some possible essay topics on confidentiality will be distributed in class.
Bioethics for clinicians: 8. Confidentiality
Irwin Kleinman, MD; Françoise Baylis, PhD; Sanda Rodgers,
LLB/BCL, LLM; Peter Singer, MD, MPH
CMAJ 1997;156:521-4
[résumé]
Dr. Kleinman is from the
Departments of Psychiatry at
Series editor: Dr. Peter A. Singer,
© 1997 Canadian Medical Association (text and abstract/résumé)
Abstract
Physicians are obliged to keep information about their patients secret. The understanding that the physician
will not disclose private information about the patient provides a foundation
for trust in the therapeutic relationship. Respect for confidentiality is
firmly established in codes of ethics and in law. It is sometimes necessary,
however, for physicians to breach confidentiality. Physicians should familiarize
themselves with legislation in their own province governing the disclosure
of certain kinds of information without the patient's authorization. Even
when no specific legislation applies, the duty to warn sometimes overrides
the duty to respect confidentiality. The physician should disclose only that
information necessary to prevent harm, and should reveal this information
only to those who need to know it in order to avert harm. Whenever possible
any breach of confidentiality should be discussed with the patient beforehand.
Les médecins doivent garder secrets
les renseignements sur
leurs patients. Dans la relation thérapeutique,
la confiance passe
par le fait de savoir que le médecin ne divulguera pas de renseignements
confidentiels sur
le patient. Les codes d'éthique et la loi établissent fermement
le respect de la confidentialité. Parfois, les médecins doivent toutefois divulguer des renseignements
confidentiels. Les médecins devraient se
familiariser avec les lois de leur province
qui régissent la divulgation de certains types de renseignements
sans l'autorisation du
patient. Même lorsqu'aucune
mesure législative
en particulier ne
s'applique, l'obligation
de prévenir l'emporte
parfois sur
Mr. T is 35 years old and is married. He has had unprotected
sex with prostitutes on 2 occasions. Although he is asymptomatic, he becomes
anxious about the possibility of having contracted a venereal disease and
consults his physician. After conducting a thorough physical examination
and providing appropriate counselling, Mr. T's physician orders a number
of tests. The only positive result is for the HIV blood test. The physician
offers to meet with Mr. T and his wife to assist with the disclosure of this
information, but Mr. T states that he does not want his wife to know about
his condition.
Mr. U is a 42-year-old professional who is living with his 14-year-old
son and is involved in an acrimonious divorce. He is receiving drug therapy
and weekly psychotherapy sessions for depression. Mr. U tells his psychiatrist
that his wife makes him so crazy that at times he wants to kill her. He is
concerned that in the heat of a confrontation he might act on this impulse.
However, he recognizes that killing his wife would be devastating to his
son, for whom he feels a great deal of affection and devotion.
Ms. V is 29 years old and has epilepsy. Her driver's licence was revoked
when the ministry of transportation was notified of her history of seizures.
Ms. V mentions in passing to her physician that she sometimes drives short
distances to get groceries with her 3-year-old daughter in the car. When
the physician challenges her about this, Ms. V emphasizes that her seizures
are very infrequent. Finally, the physician states that he might be obliged
to notify the authorities. Ms. V asks what more the authorities could do,
now that they have revoked her licence. Would they put a police cruiser outside
her house to make sure she doesn't drive?
Physicians are obliged to keep information about their
patients confidential. Confidentiality provides a foundation for trust in
the therapeutic relationship.
Without an understanding that their disclosures will
be kept secret, patients may withhold personal information. This can hinder
physicians in their efforts to provide effective interventions or to pursue
certain public health goals. For example, some patients may not feel secure
in confiding a drug or alchohol dependence and
thus may not have the benefit of treatment. Others may refrain from disclosing
information that could alert the physician to the potential for harm or violence
to others.
Respect for the confidentiality of patient information is not based solely
on therapeutic considerations or social utility, however. Of equal, if not
greater, importance is the physician's duty to respect patient autonomy in
medical decision-making. Competent patients have the right to control the
use of information pertaining to themselves. They
have the right to determine the time and manner in which sensitive information
is revealed to family members, friends and others.
In our strongly individualistic society the principle of autonomy is taken
very seriously. This principle, however, is not absolute. As John Stuart
Mill observed in the 19th century, personal freedom may legitimately be constrained
when the exercise of such freedom places others at risk:
[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection . . . [T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.[1]
Applied to the question of confidentiality, this suggests that although
patients have the right to control how information about themselves is shared, this right is limited by the
obligation not to harm others. When harm is threatened, the principle of
autonomy (and hence the duty to preserve confidentiality) no longer takes
precedence, and disclosure without the patient's authorization may be permissible
or required.
The confidentiality of patient information is prescribed
in law. For example, physicians in Ontario are prohibited from providing information
to third parties regarding a patient's condition or any professional service
performed for a patient without the consent of the patient or his or her
authorized agent unless such disclosure is required by law.[2] A breach of confidentiality that is not required
by law may prompt disciplinary action by the College of Physicians and Surgeons
of Ontario. Similar provisions concerning confidentiality exist in other provinces.
Moreover, a breach of confidentiality may result in a civil suit.
Legal requirements to reveal certain kinds of information without the patient's
consent are defined in both statutory and common law. The most notable legislated
requirement involves the mandatory reporting of patients who suffer from
designated diseases, those deemed not fit to drive and those suspected of
child abuse.[3]
The case of Tarasoff v. Regents
of the University of California[4,5] involved a psychologist
who had reason to believe that his patient would kill a woman named Ms. Tarasoff. At the psychologist's request the campus
police arrested the patient, but he was released when he assured the police
that he would stay away from Tarasoff. No further
action was taken, and the patient killed Tarasoff
2 months later.[4] Two decisions resulted from
this case. The first established the duty to warn.[4]
The American Psychiatric Association lobbied for the case to be reheard by
the California Supreme Court.[6] As a result, a duty to protect was established
that may or may not include a warning to the potential victim or the police.[5]
The decision also implied that committing a dangerous patient to institutional
care would obviate the need to warn.
Although the Tarasoff decision does not impose
a legal duty upon Canadian physicians it could reasonably be expected that
Canadian courts would apply similar reasoning in a comparable case. In Tanner
v. Norys the Alberta Court of Appeal stated
that if it were presented with a case involving a psychiatrist who failed
to warn another of the risk of harm, then it would follow the reasoning used
in the Tarasoff case.[7] In the report of the
Commission of Inquiry into the Confidentiality of Health Information, Justice
Horace Krever wrote that "it cannot be said with
certainty that an Ontario court would decide a case involving identical circumstances
[to those in Tarasoff] in a different way."[8]
Most recently, the
The Hippocratic Oath[11]
explicitly demands confidentiality in physicians' dealings with patients:
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 about.[11]
The Hippocratic Oath and subsequent codes of ethics[12]
admitted no exceptions to the duty of confidentiality. However, more recent
codes allow that breaches of confidentiality may be justified or required
in certain circumstances. For example, the CMA Code of Ethics states:
Respect the patient's right to confidentiality except when this right conflicts with your responsibility to the law, or when the maintenance of confidentiality would result in a significant risk of substantial harm to others or to the patient if the patient is incompetent; in such cases, take all reasonable steps to inform the patient that confidentiality will be breached.[13]
Thus, according to the CMA Code of Ethics, physicians may disclose confidential
information not only when they are required to do so by law but also when
there is significant risk of substantial harm to others (which is, in effect,
the reasoning underlying any legal duty to warn). The CMA position statement
on AIDS advises physicians that
disclosure to a spouse or current sexual partner may not be unethical and, indeed, may be indicated when physicians are confronted with an HIV-infected patient who is unwilling to inform the person at risk. Such disclosure may be justified when all of the following conditions are met: the partner is at risk of infection with HIV and has no other reasonable means of knowing the risk; the patient has refused to inform his or her sexual partner; the patient has refused an offer of assistance by the physician to do so on the patient's behalf; and the physician has informed the patient of his or her intention to disclose the information to the partner.[14]
The CMA has affirmed that medical records are confidential documents and
that patient authorization is necessary for the disclosure of information
contained in such records to a third party, unless such disclosure is required
by law. Although medical records are the property of the physician or health
care institution that compiled them, patients have the right to examine their
records and to copy the information they contain.[15]
The Canadian Psychiatric Association[16] recommends
that patients whom a physician believes at any point during treatment to
be dangerous or potentially dangerous should be informed that confidentiality
may be breached for his or her own protection and that of any potential victim.
The association also recommends that any breach of confidentiality should
be discussed beforehand and that the patient's cooperation should be enlisted
if possible.
Farber and associates[17]
found that internal medicine residents based their decisions to breach confidentiality
on factors other than the patient's intention to commit specific acts of
violence. Reports of past violence, a criminal record and a history of high-cost
crime increased the likelihood that confidential information would be disclosed.
Cheng and collaborators[18] found that most adolescents
who responded to their survey had problems that they wished to be kept secret
and would not seek the help of health care professionals because of concerns
about confidentiality. Ubel and colleagues[19] reported that inappropriate comments
were made by hospital staff on 14% of elevator rides in the 5 institutions
studied. Most frequently, these remarks constituted a breach of patient confidentiality.
Physicans must respect their
patient's confidences. Private information should be revealed to a third
party only with the consent of the patient or his or her authorized representatives
or when required by law.
Physicians should familiarize themselves with the legal requirements in
their own province for the disclosure of patient information. When possible,
it is important to discuss with the patient the necessity of any disclosure
before it occurs and to enlist his or her cooperation. For example, it is
helpful to persuade a patient suspected of child abuse to call the Children's
Aid Society in the physician's presence to self-report, or to obtain his
or her consent before the authorities are notified. This approach will prepare
the way for subsequent interventions.
When harm is threatened and there is no specific legal requirement for
disclosure the duty to warn may still override the duty to respect confidentiality.
This is the case when the anticipated harm is believed to be imminent, serious
(and irreversible), unavoidable except by unauthorized disclosure, and proportionate
to the harm likely to result from disclosure. In determining the proportionality
of these respective harms, the physician must assess and compare the seriousness
of the harms and the likelihood of their occurrence. In all instances, but
particularly when the harms appear equal, the physician must exercise his
or her judgement. In cases of doubt, it would be prudent for the physician
to seek expert advice, such as from the Canadian Medical Protective Association,
before breaching confidentiality.
When a physician has determined that the duty to warn justifies an unauthorized
disclosure, two further decisions must be made. Whom should the physician
tell? How much should be told? Generally speaking, the disclosure should
contain only that information necessary to prevent the anticipated harm and
should be directed only to those who need the information in order to avert
the harm. Reasonable steps should be taken to mitigate the harm and offense to the patient that may arise from the disclosure.
Mr. T's physician warns him that steps will have to
be taken to ensure that his wife is made aware of his condition. These steps
might include a direct warning to his wife and notification of the public
health department. The physician subsequently decides to enlist the help
of the department, which she believes to be experienced in dealing with this
kind of issue. The public health authorities contact Mr. T and tell him that
he must inform his wife. Mr. T responds to their authority and brings his
wife to see his physician to be told about his condition.
Mr. U's psychiatrist carefully assesses the homicidal potential of his
patient and concludes that Mr. U's wife is in no imminent danger. Mr. U does
not really want to kill her and has never had violent outbursts in the past.
More important, he does not want his son to suffer the negative consequences
of such an action. Given the hostility he feels, Mr. U resolves to avoid
contact with his wife. Psychotherapy continues, addressing a number of issues.
A settlement with the wife is reached and Mr. U becomes involved in another
relationship.
Ms. V's physician seeks legal advice to determine his obligations. He receives
conflicting opinions. One opinion states that a duty to inform under these
circumstances exists under the province's highway traffic act. A written opinion
from the ministry of transportation states that once medical evidence has
been received and action has been taken to suspend the driver's licence, further
notification is not necessary. The relevant health care legislation permits
confidentiality to be breached only when this is required by law.
This raises the question of whether the reasoning used in the Tarasoff case would apply, such that the physician
has a duty to warn. The patient has had only 1 or 2 seizures during the past
year and feels that she can tell when they are coming on. At most, she drives
for 5 minutes 2 to 3 times per week. The probability of an accident resulting
in serious irreversible harm is therefore very low. Furthermore, it is not
clear that anyone is in a position to intervene even if notification were
made.
Ms. V's physician feels that his patient is denying the reality of her
illness and does not appreciate the risks involved. Over the next 2 weeks
he continues to counsel her, explaining the risks to her daughter, to other
people and to herself, given that she probably would not be insured in the
event of an accident. This proves effective in penetrating Ms. V's denial
of her illness. She tells the physician that she has decided not to drive
again while her licence is revoked. Ms. V continues to work with her physician,
addressing other areas of her life. This case highlights the importance of
continuing to work therapeutically with patients while considering ethical
and legal concerns.