- Email: [email protected]
Case study: keeping confidences
C tu Ke pi- ·9
n id n
Breaching a confidence can be justified only when the best interest of the patient requires or the law demands. by Amy Marie Hadd ad, PhD
Pharmacist Don Wear* is the owner and manager of a community pharmacy. A social worker, Rita Vegas, from a nearby community health center, comes to the pharmacy and asks specifically to see the pharmacist in charge. Vegas has just come from a home visit to one of the center's patients, John Ferguson. Vegas makes periodic home visits to all of the center's patients to monitor their ability to function independently in the community. She saw Ferguson approximately four weeks earlier and is certain that his behavior has deteriorated conSiderably since then. She tells Wear, "I suspect that Ferguson has not been compliant in taking his antipsychotic medication even though he reassures me he has taken it. I know this is the pharmacy where he gets his prescriptions filled. I need you to tell me whether or not Ferguson has been obtaining refills at the appropriate rate." Ferguson is Wear's patient. Wear wonders what to do.
Patient's Right to Confidentiality Professional confidentiality is an essential ingredient in the pharmacist-patient relationship. Pharmacists routinely learn a great deal about the private lives of their patients through the course of their work. Additionally, patients may confide their fears and concerns regarding not only their health but also other facets of their lives. Although patients may not explicitly ask the pharmacist to keep this information confidential, they trust the pharmacist to make every effort to maintain secrecy. Ferguson has 'a right to confidentiality. The information in question - the number and dates of refills of an antipsychotic drug-may not appear to be deeply personal information. However, Wear has an obligation to protect private information about Ferguson. The number of refills would certainly * Names are fictitious . AMERICAN PHARMACY
fall into this category. But the patient's right to confidentiality is not an absolute one; there are ethically justifiable reasons for breaching a confidence. Before exploring reasons for breaking confidences, one should examine why confidentiality is important to the professional-patient relationship. Confidentiality fosters trust between the health care professional and the patient. Society benefits from confidentiality because it allows people to seek medical attention without fear of disclosure. Society grants professional refuge to patients so that health care providers can arrive at the truth and, therefore, diagnose and prescribe treatment more effectively. This is particularly true for cases of communicable diseases, such as sexually transmitted diseases, or for diagnoses that retain a social stigma, such as mental illness and acquired immunodeficiency syndrome. Additional justification for confidentiality rests on the principles of respect for persons (autonomy) and keeping promises (fidelity). Confidentiality First , the principle of autonomy requires that we • Pharmacists should respect individuals because respect a patient's right to they are human beings. This confidentiality and not disrespect allows people freeclose private information. dom to make their own • Under certain circumchoices and perform actions stances-protecting the they choose regarding their patient or others from lives. We extend this respect harm or if disclosure is not only to an individual's required by state law-a physical person but to everypharmacist may be justified in breaching a thing personal, including reppatient's confidence. utation. Therefore , private information about patients • Negative conseshould be respected. quences may result from Second, fidelity asserts breaking a confidence. that, all things being equal, December 1993
Vol. NS33, No. 12
we should be faithful to our promises. A pledge to keep a confidence creates an obligation beyond the usual respect due to persons. Because Wear entered into a professional-patient relationship with Ferguson , Wear is required to keep his unspoken pledge of silence. Because of this, Wear should not immediately agree to Vegas's request.
guage of the 1981 Code, but has left the pharmacist with the same quandary: determining what harms might come to the patient or others if confidentiality is broken. An additional justification for breaking confidences is to protect innocent others ttlt/de lnaillt{;"il1 from foreseeable harm. Wear can now determine what harm might occur to his patient and others by keeping Ferguson's records confidential or by telling the Code of Ethics social worker what she Wear should reflect upon wants to know. conditions that would justify breaking a confidence. He If Wear flatly refuses to tell the social worker about the refills, several negative consequences are possible. might tum to the 1981 American Pharmaceutical Association First, Ferguson might not be telling the truth about taking (APhA) "Code of Ethics" for guidance. The code states: his medication as indicated. Depending on his diagnosis, this A phannacist should respect the confidential and personal could lead to great harm to Ferguson or, perhaps, to others if nature of professional records; except where the best interest of the patient requires or the law demands, a pharmacist he has a tendency to violent behavior. Even if the patient is should not disclose such information to anyone without propnot violent, one could assume that his "deterioration" has had er patient authorization. a bearing on the quality of his life. However, the whole question of what constitutes an acceptable quality of life is subjecThe code reinforces the duty to keep confidences, but tive. For this discussion, it is assumed that quality of life simappears to allow for two circumstances in which confidences ply denotes the "undesirable nature of certain states of body could be broken. and mind, regardless of our commitment to the sacredness of For example, if the prescribing physician had called Wear the individual.,,2 Assuming that being in a psychotic, conand asked for information regarding Ferguson, the law in fused state is undesirable and therefore a "harm," the degree most states would require that the pharmacist provide the of harm would still be open to interpretation. information and would not require the consent of the Second, Ferguson might be telling the truth and is taking patient. 1 It is possible that the law might also require the dishis medication as directed, but the medication is not effecclosure of confidential information to the social worker if she tive. In this instance, Ferguson would need medical attention were a certified or licensed patient caretaker. to correct the dosage or change to a different medication to For the sake of this discussion, one may assume that the prevent further harm. law does not require disclosure. Wear must decide if breakIn addition, Vegas might become angry with Wear for not ing a confidence is in the patient's best interest. If keeping giving her the information. Vegas would argue that she is information confidential would do great harm to the patient, interested in Ferguson's welfare and therefore has a right to then confidentiality could be broken even if Ferguson refuses the information. to give consent. A proposed revised APhA "Code of Ethics for Pharmacists," which has been endorsed by APhA's Board of Trustees and is scheduled to be put to members for approval in 1994, Negative consequences are also possible if Wear does tell includes the following: Vegas about the refills. First, there is the possibility that A pharmacist promotes the good of every patient in a cartelling Vegas about the refills would harm the relationship ing, compassionate, and confidential manner. A pharmacist places concern for the well-being of the patient at the center between Wear and Ferguson. If Ferguson fmds out that Wear of professional practice. In doing so, a pharmacist considers revealed confidential information about his medications withneeds stated by the patient as well as those defmed by health out his permission, he could be angry and disappointed. Ferscience. A pharmacist is dedicated to protecting the dignity of guson could rightfully feel cheated by Wear. This experience the patient. With a caring attitude and a compassionate spirit, could lead Ferguson to be mistrustful of all health care profesa pharmacist focuses on serving the patient in a private and confidential manner. sionals and, perhaps, cause him to avoid seeking treatment when he needs it. The proposed code has eliminated the paternalistic lan-
Vol. NS33, No. 12
December 1993
AMERICAN PHARMACY
Second, Ferguson could tell others about Wear's indiscretion and discourage people from patronizing Wear's pharmacy. Third, Wear would be limited in his ability to confrrm the legitimacy of Vegas' right to information. If Wear seriously entertained the idea of sharing confidential information with Vegas, he would have to assure himself that she truly represents the health care center and is assigned to oversee Ferguson's case. Finally, and most practically, Wear would not be able to tell by checking the refill record if Ferguson had actually been taking his medication. Wear would only know for certain whether or not the prescriptions had been refilled as scheduled. Vegas would still have to determine if Ferguson took his medication as prescribed. Thus, the information about the refills may not be crucial in correcting Ferguson's deterioration.
It appears that there are no compelling reasons to break the confidence in this case. Wear should tell Vegas that he will not be able to disclose any information without Ferguson's permission. Wear's primary duty is to his patient. If Wear feels that Ferguson is at risk of serious harm, he can call Ferguson and inquire about his status. Furthermore, if Ferguson has not picked up his refills, Wear can notify the physician. These actions defme what Wear can ethically do within his sphere of responsibility and competence. The incident may also provide Wear the opportunity to instruct everyone who works in his pharmacy and has access to patient records about the need for confidentiality and the
Viewpoint continued from page 49
don't think will think.
3. "The Justice Department will not stop the Merck-Medco merger if they think APhA approves of it." This one is my personal favorite! As I understand the antitrust laws, their enforcement is not swayed by the opinion of pharmacists, or even APhA. If only we had that much clout! Certainly, the Justice Department has not seen things our way in the past. But the fact is that APhA has not even taken a position on the Merck-Medco merger; we have simply endorsed the concept behind CCN. 4. "APhA should not endorse third party plans." If an endorsement is what it takes to get pharmacists paid
AMERICANPHARMACY
Walters L. Ethical aspects of medical confidentiality. In: Beauchamp TL, Walters L, eds. Contemporary Issues in Bioethics. 2nd ed. Belmont,. Calif: Wadsworth Press; 1982.
need for limiting access to patient information only to those who have a legitimate claim to it. He should emphasize to his staff that patients should be informed when there is a legitimate need to share information, how the information will be used, and how their privacy will be protected. Amy Marie Haddad, PhD, is associate professor, Creighton University School of Pharmacy and Allied Health Professions, Omaha, Neb.
References 1. National Association of Boards of Pharmacy. Model state pharmacy act and model rules of the National Association of Boards of Pharmacy. In: Model Rules for Pharmaceutical Care, Section 4, Unprofessional Conduct. 1992:10.11. 2. Arras JD. Toward an ethic of ambiguity. In: Murrary T, Caplan A, eds. Which Babies Shall Live? Clifton, NJ: Humana Press; 1985:91.
for doing a better job, I hope we endorse every plan that does so from now on. AIl the pharmacists I have talked to about CCN say they wish the plan were from someone other than PAID, but no one has said that he or she will not participate. AIl say that they are afraid PAID will not live up to its promises. I am too! But I'm even more concerned that we won't live up to our promise-that, given opportunities, we can make a difference. CCN gives pharmacists a chance to prove what we have been saying we can do. God grant us the appetite to take advantage of this opportunity. 1. N ((Red" Camp is owner, Camp Pharmacy, Titusville, Fla. , and Speaker of the House of Delegates and member of the Board of Trustees, American Pharmaceutical Association.
December 1993
Vol. NS33, No. 12
n id n
Breaching a confidence can be justified only when the best interest of the patient requires or the law demands. by Amy Marie Hadd ad, PhD
Pharmacist Don Wear* is the owner and manager of a community pharmacy. A social worker, Rita Vegas, from a nearby community health center, comes to the pharmacy and asks specifically to see the pharmacist in charge. Vegas has just come from a home visit to one of the center's patients, John Ferguson. Vegas makes periodic home visits to all of the center's patients to monitor their ability to function independently in the community. She saw Ferguson approximately four weeks earlier and is certain that his behavior has deteriorated conSiderably since then. She tells Wear, "I suspect that Ferguson has not been compliant in taking his antipsychotic medication even though he reassures me he has taken it. I know this is the pharmacy where he gets his prescriptions filled. I need you to tell me whether or not Ferguson has been obtaining refills at the appropriate rate." Ferguson is Wear's patient. Wear wonders what to do.
Patient's Right to Confidentiality Professional confidentiality is an essential ingredient in the pharmacist-patient relationship. Pharmacists routinely learn a great deal about the private lives of their patients through the course of their work. Additionally, patients may confide their fears and concerns regarding not only their health but also other facets of their lives. Although patients may not explicitly ask the pharmacist to keep this information confidential, they trust the pharmacist to make every effort to maintain secrecy. Ferguson has 'a right to confidentiality. The information in question - the number and dates of refills of an antipsychotic drug-may not appear to be deeply personal information. However, Wear has an obligation to protect private information about Ferguson. The number of refills would certainly * Names are fictitious . AMERICAN PHARMACY
fall into this category. But the patient's right to confidentiality is not an absolute one; there are ethically justifiable reasons for breaching a confidence. Before exploring reasons for breaking confidences, one should examine why confidentiality is important to the professional-patient relationship. Confidentiality fosters trust between the health care professional and the patient. Society benefits from confidentiality because it allows people to seek medical attention without fear of disclosure. Society grants professional refuge to patients so that health care providers can arrive at the truth and, therefore, diagnose and prescribe treatment more effectively. This is particularly true for cases of communicable diseases, such as sexually transmitted diseases, or for diagnoses that retain a social stigma, such as mental illness and acquired immunodeficiency syndrome. Additional justification for confidentiality rests on the principles of respect for persons (autonomy) and keeping promises (fidelity). Confidentiality First , the principle of autonomy requires that we • Pharmacists should respect individuals because respect a patient's right to they are human beings. This confidentiality and not disrespect allows people freeclose private information. dom to make their own • Under certain circumchoices and perform actions stances-protecting the they choose regarding their patient or others from lives. We extend this respect harm or if disclosure is not only to an individual's required by state law-a physical person but to everypharmacist may be justified in breaching a thing personal, including reppatient's confidence. utation. Therefore , private information about patients • Negative conseshould be respected. quences may result from Second, fidelity asserts breaking a confidence. that, all things being equal, December 1993
Vol. NS33, No. 12
we should be faithful to our promises. A pledge to keep a confidence creates an obligation beyond the usual respect due to persons. Because Wear entered into a professional-patient relationship with Ferguson , Wear is required to keep his unspoken pledge of silence. Because of this, Wear should not immediately agree to Vegas's request.
guage of the 1981 Code, but has left the pharmacist with the same quandary: determining what harms might come to the patient or others if confidentiality is broken. An additional justification for breaking confidences is to protect innocent others ttlt/de lnaillt{;"il1 from foreseeable harm. Wear can now determine what harm might occur to his patient and others by keeping Ferguson's records confidential or by telling the Code of Ethics social worker what she Wear should reflect upon wants to know. conditions that would justify breaking a confidence. He If Wear flatly refuses to tell the social worker about the refills, several negative consequences are possible. might tum to the 1981 American Pharmaceutical Association First, Ferguson might not be telling the truth about taking (APhA) "Code of Ethics" for guidance. The code states: his medication as indicated. Depending on his diagnosis, this A phannacist should respect the confidential and personal could lead to great harm to Ferguson or, perhaps, to others if nature of professional records; except where the best interest of the patient requires or the law demands, a pharmacist he has a tendency to violent behavior. Even if the patient is should not disclose such information to anyone without propnot violent, one could assume that his "deterioration" has had er patient authorization. a bearing on the quality of his life. However, the whole question of what constitutes an acceptable quality of life is subjecThe code reinforces the duty to keep confidences, but tive. For this discussion, it is assumed that quality of life simappears to allow for two circumstances in which confidences ply denotes the "undesirable nature of certain states of body could be broken. and mind, regardless of our commitment to the sacredness of For example, if the prescribing physician had called Wear the individual.,,2 Assuming that being in a psychotic, conand asked for information regarding Ferguson, the law in fused state is undesirable and therefore a "harm," the degree most states would require that the pharmacist provide the of harm would still be open to interpretation. information and would not require the consent of the Second, Ferguson might be telling the truth and is taking patient. 1 It is possible that the law might also require the dishis medication as directed, but the medication is not effecclosure of confidential information to the social worker if she tive. In this instance, Ferguson would need medical attention were a certified or licensed patient caretaker. to correct the dosage or change to a different medication to For the sake of this discussion, one may assume that the prevent further harm. law does not require disclosure. Wear must decide if breakIn addition, Vegas might become angry with Wear for not ing a confidence is in the patient's best interest. If keeping giving her the information. Vegas would argue that she is information confidential would do great harm to the patient, interested in Ferguson's welfare and therefore has a right to then confidentiality could be broken even if Ferguson refuses the information. to give consent. A proposed revised APhA "Code of Ethics for Pharmacists," which has been endorsed by APhA's Board of Trustees and is scheduled to be put to members for approval in 1994, Negative consequences are also possible if Wear does tell includes the following: Vegas about the refills. First, there is the possibility that A pharmacist promotes the good of every patient in a cartelling Vegas about the refills would harm the relationship ing, compassionate, and confidential manner. A pharmacist places concern for the well-being of the patient at the center between Wear and Ferguson. If Ferguson fmds out that Wear of professional practice. In doing so, a pharmacist considers revealed confidential information about his medications withneeds stated by the patient as well as those defmed by health out his permission, he could be angry and disappointed. Ferscience. A pharmacist is dedicated to protecting the dignity of guson could rightfully feel cheated by Wear. This experience the patient. With a caring attitude and a compassionate spirit, could lead Ferguson to be mistrustful of all health care profesa pharmacist focuses on serving the patient in a private and confidential manner. sionals and, perhaps, cause him to avoid seeking treatment when he needs it. The proposed code has eliminated the paternalistic lan-
Vol. NS33, No. 12
December 1993
AMERICAN PHARMACY
Second, Ferguson could tell others about Wear's indiscretion and discourage people from patronizing Wear's pharmacy. Third, Wear would be limited in his ability to confrrm the legitimacy of Vegas' right to information. If Wear seriously entertained the idea of sharing confidential information with Vegas, he would have to assure himself that she truly represents the health care center and is assigned to oversee Ferguson's case. Finally, and most practically, Wear would not be able to tell by checking the refill record if Ferguson had actually been taking his medication. Wear would only know for certain whether or not the prescriptions had been refilled as scheduled. Vegas would still have to determine if Ferguson took his medication as prescribed. Thus, the information about the refills may not be crucial in correcting Ferguson's deterioration.
It appears that there are no compelling reasons to break the confidence in this case. Wear should tell Vegas that he will not be able to disclose any information without Ferguson's permission. Wear's primary duty is to his patient. If Wear feels that Ferguson is at risk of serious harm, he can call Ferguson and inquire about his status. Furthermore, if Ferguson has not picked up his refills, Wear can notify the physician. These actions defme what Wear can ethically do within his sphere of responsibility and competence. The incident may also provide Wear the opportunity to instruct everyone who works in his pharmacy and has access to patient records about the need for confidentiality and the
Viewpoint continued from page 49
don't think will think.
3. "The Justice Department will not stop the Merck-Medco merger if they think APhA approves of it." This one is my personal favorite! As I understand the antitrust laws, their enforcement is not swayed by the opinion of pharmacists, or even APhA. If only we had that much clout! Certainly, the Justice Department has not seen things our way in the past. But the fact is that APhA has not even taken a position on the Merck-Medco merger; we have simply endorsed the concept behind CCN. 4. "APhA should not endorse third party plans." If an endorsement is what it takes to get pharmacists paid
AMERICANPHARMACY
Walters L. Ethical aspects of medical confidentiality. In: Beauchamp TL, Walters L, eds. Contemporary Issues in Bioethics. 2nd ed. Belmont,. Calif: Wadsworth Press; 1982.
need for limiting access to patient information only to those who have a legitimate claim to it. He should emphasize to his staff that patients should be informed when there is a legitimate need to share information, how the information will be used, and how their privacy will be protected. Amy Marie Haddad, PhD, is associate professor, Creighton University School of Pharmacy and Allied Health Professions, Omaha, Neb.
References 1. National Association of Boards of Pharmacy. Model state pharmacy act and model rules of the National Association of Boards of Pharmacy. In: Model Rules for Pharmaceutical Care, Section 4, Unprofessional Conduct. 1992:10.11. 2. Arras JD. Toward an ethic of ambiguity. In: Murrary T, Caplan A, eds. Which Babies Shall Live? Clifton, NJ: Humana Press; 1985:91.
for doing a better job, I hope we endorse every plan that does so from now on. AIl the pharmacists I have talked to about CCN say they wish the plan were from someone other than PAID, but no one has said that he or she will not participate. AIl say that they are afraid PAID will not live up to its promises. I am too! But I'm even more concerned that we won't live up to our promise-that, given opportunities, we can make a difference. CCN gives pharmacists a chance to prove what we have been saying we can do. God grant us the appetite to take advantage of this opportunity. 1. N ((Red" Camp is owner, Camp Pharmacy, Titusville, Fla. , and Speaker of the House of Delegates and member of the Board of Trustees, American Pharmaceutical Association.
December 1993
Vol. NS33, No. 12