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Law and ethics in conflict over confidentiality?
International Journal of Gynecology & Obstetrics 70 Ž2000. 385᎐391
Ethical and legal issues in reproductive health
Law and ethics in conflict over confidentiality? B.M. DickensU , R.J. Cook Faculty of Law, Faculty of Medicine and Joint Center for Bioethics, Uni¨ ersity of Toronto, Toronto, Canada Accepted 8 May 2000
Abstract Ethical principles that require the preservation of patients’ confidential information are reinforced by principles found in several areas of law, such as law on contracts, negligence, defamation and fiduciary duty. However, laws sometimes compel disclosures of medical confidences, and more often may justify or excuse disclosures. Legally contentious issues concern patients’ confidences regarding possible unlawful conduct, such as pregnancy termination, and the risk of spread of HIV and other infections. This article reviews the various legal bases of the duty of confidentiality, and legal challenges to the ethical obligation of non-disclosure. It addresses the justifications and limits of exchange of patients’ health information among healthcare professionals and trainees, and considers legally recognized limits of confidential duties, and the scope of legitimate disclosure. An underlying theme is how to determine whether physicians are ethically justified in employing the discretion the law sometimes affords them to breach patients’ expectations of confidentiality. 䊚 2000 International Federation of Gynecology and Obstetrics. Keywords: Confidentiality; Disclosure of confidential information; Legal confidentiality; Lawful disclosure of records; Record confidentiality; Disclosure of dangerousness; Ethics and confidentiality
U
Corresponding author. Faculty of Law, University of Toronto, Toronto, Canada. Tel.: q1-416-978-4849; fax: q1-416-978-7899. E-mail address: [email protected] ŽB.M. Dickens.. 0020-7292r00r$20.00 䊚 2000 International Federation of Gynecology and Obstetrics. PII: S 0 0 2 0 - 7 2 9 2 Ž 0 0 . 0 0 2 8 6 - 1
386
B.M. Dickens, R.J. Cook r International Journal of Gynecology & Obstetrics 70 (2000) 385᎐391
1. Introduction An aspect of the primary and transcending medical ethic to ‘Do No Harm’ is the imperative duty of healthcare professionals to protect secret disclosures that patients have to make to those whose healthcare they request. Rooted in the ancient Hippocratic responsibility that defines medical professionalism, the duty of confidentiality accords with both the foundational principles and sound practices of conscientious healthcare. The principle of confidentiality confirms that patients can trust healthcare professionals not to publicize information that patients are obliged to disclose to them in order that their symptoms be properly diagnosed, treated and, if possible, cured. Secrets that patients want to protect against disclosure to their friends, close relatives, and husbands or wives often have to be shared with physicians and related healthcare professionals, for the patients’ protection of their health and very lives. Acquiring a sanctity comparable to that of the religious confessional, these secrets are entrusted to healthcare practitioners in order that patients may achieve their salvation through the mediation of medical or related practitioners. Reciprocating the trust that patients place in healthcare practitioners, medical and related practitioners impliedly offer assurances against betrayal of dependent persons they encourage to seek their help. The necessity of medical confidentiality is particularly compelling with regard to reproductive and sexual health. If persons in need of healthcare services to protect their health and lives against reproduction-related dangers and possible hazards of sexual practices do not trust their personal secrets to practitioners who possess a scientific capacity, and often a legal monopoly, to render care, they may prefer the risks of forgoing care or of seeking it through unqualified practitioners or dangerous self-help interventions. Patients may prefer the risks of transmissible infections and of unskilled treatments, for instance to terminate personally intolerable pregnancies, to requesting care from practitioners who are personally disposed, or legally compelled, to serve as police informants, or who are negligent
in their own or their staff-members’ protection of confidential information.
2. The legal basis of the duty of confidentiality The legal duty that physicians and other healthcare professionals owe to patients rests on interrelated principles. When the physician᎐ patient relationship is founded on a fee-for-service or similar contract, which is usually implied by law rather than in written language, a term of the agreement is that the physician will maintain the confidentiality of disclosures that the patient makes for the purpose of diagnosis or therapy. Furthermore, the implication governs the physicians’ support staff, who may have to know, or be entitled to know, of the patients’ circumstances, but are not free to violate their confidentiality. The duty of professionals is to make certain that their support staff, such as nurses, counselors, and administrative personnel ensure the professional integrity of physician᎐patient relationships. They are not free to talk casually about patients’ conditions, or even who the physicians’ patients are. When physicians are salaried by an institution or paid, for instance, under a governmental capitation system, no contractual ties exist between them and their patients, but courts will often find alternative legal support for the duty of confidentiality. They may imply a general duty of care that physicians owe patients, so that physicians’ deliberate or accidental breaches may make them legally liable for negligence. This is comparable to the duty of care that is an implied term of a contract, when one exists between the physician and patient. Some legal systems require proof of injury or loss before a negligent breach of a duty of care is compensable. However, where no calculable damage can be shown, the legal systems in some countries will compensate the unquantifiable emotional pain of deliberate breaches of confidentiality as a wrong Žin systems derived from English customary law, called a ‘tort’. of outrage. Legal systems have generally been slow, however, to recognize a wrong or tort arising
B.M. Dickens, R.J. Cook r International Journal of Gynecology & Obstetrics 70 (2000) 385᎐391
from negligent breach of confidentiality, where no calculable injury or loss resulted. While there may be no legal liability for the wrongful disclosure of a confidential truth, the communication of a falsehood may be defamatory. The historical formula is that a communication to a third party about a second party is defamatory if it is false, and causes that second party to suffer hatred, ridicule or contempt, or to be shunned or avoided by right-thinking members of the community. Defamation may be compensable even if no calculable injury or loss results, because loss of justified good reputation is itself compensible if the communication is in a permanent or widespread form, such as in writing or on a radio or television broadcast. This type of defamation is libel, but defamation in a transient form, such as unrecorded speech, is slander, which in some circumstances is compensable only if loss results. Defamation need not be deliberate, and may be made by an oblique reference or hint. For instance, to disclose that a woman who has had a spontaneous miscarriage ‘had an abortion’, without making clear that it was spontaneous, may lead unaware recipients of the disclosure to conclude that it was criminally or immorally induced, and so be defamatory of the woman. Similarly, to mistake a child’s age and describe a woman who is married for 6 years as having a 7-year-old child suggests conception before marriage, which would be defamatory of her in communities where unchastity is morally stigmatizing and condemned. However, these accidental defamations can be legally remedied by prompt and adequately widespread correction and apology. In some countries, courts are developing the concept of breach of fiduciary duty as a remedy for the wrongful disclosure of truthful information. The paper, or other material of the patient’s medical record, usually belongs to the physician, hospital or clinic that creates it, but the information the record contains is under legal control of the patient w1x. The physician or hospital is like a trustee of that information, and may use it only in the patients’ best interests. Any disclosure of information that the patient has not authorized can
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violate the fiduciary duty of the record-keeper. However, when authorization is not explicitly given, it is implied where information has to be shared with healthcare colleagues to serve the patient’s interests and needs. The ethical duties of confidentiality by which physicians are bound may be contained in legally enforceable codes of practice. Professional licensing authorities may punish breaches of such codes, for instance by license suspension, or fine. In addition, the employment of physicians by hospitals or other institutions may be under contracts that require ethical conduct. Unethical breach of confidentiality is then also a contractual breach by the physician. If a hospital incurs legal liability because of a physician’s violation of a patient’s confidentiality, the hospital may be entitled to legal indemnification from that physician. Hospitals may, therefore, make it a condition of employment that staff members maintain independent professional liability insurance or membership of a professional self-defense organization, in order to ensure that funds are available to meet any damage awards and legal costs that hospitals may incur.
3. Legal challenges to the ethical duty of confidentiality A challenge to medical professional integrity and ethics is posed by laws that require, justify or excuse healthcare practitioners’ betrayals of their patients’ confidentiality. Many enacted laws apply in the opposite direction, by prohibiting disclosures by practitioners unless specifically authorized in advance by their patients. For instance, the Criminal Code of Poland defines categories of illegal abortion w2x, but legislation on the medical profession obliges physicians to maintain medical confidentiality w3x. The obligation is excluded when disclosure is required by law, but the rules of criminal procedure include no duty to report an induced abortion. On the contrary, professional disciplinary proceedings may be brought when medical confidentiality, other professional duties, or principles of medical ethics are violated w4x.
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B.M. Dickens, R.J. Cook r International Journal of Gynecology & Obstetrics 70 (2000) 385᎐391
An ethically troubling judicial decision in the Argentinian province of Santa Fe in August 1998 appears to endorse the betrayal of medical trust. The physician who attended a patient who sought medical care at a public hospital for complications resulting from a self-induced abortion reported her to the police. She was accordingly prosecuted for violation of the Penal Code w5x, with liability to imprisonment for 1᎐4 years. Under relevant law, physicians must report criminal conduct, except for facts they learn in professional confidentiality. Indeed, those who divulge professional secrets without just cause may face legal penalties. Nevertheless, invoking the supremacy of the right to life of the unborn, the provincial Supreme Court found that the physician had a legal right to breach the patient’s confidence, and violated no professional trust. The court may have been motivated by the deterrent purpose of the restrictive law penalizing abortion, but created peril to women’s right to life, which is no less legally protected. If women whose lives are endangered by spontaneous or induced abortions, or threatened abortion, are fearful of seeking medical assistance lest they may be reported to police authorities and prosecuted, the judgment will add to the tragic and growing burden of maternal mortality, now estimated worldwide at approximately 1600 deaths each day w6x. Furthermore, the court may have added to the burden of social injustice that bears on women dependent on health services from public hospitals, perpetuating the long-standing privilege of de facto immunity from punishment enjoyed by women able to afford private abortion services w7x. Physicians who become aware that unskilled abortionists are endangering the lives of women in their area may feel compelled to notify police authorities in order to protect women against them. Patients’ identities may then need to be disclosed, so that they or their friends may provide information and perhaps serve as witnesses in proceedings brought against such practitioners. However, physicians should ask patients injured by unskilled practitioners for authorization to make such disclosures, because patients unwilling
to serve as witnesses may be punishable for obstruction of police enquiries or contempt of court if they refuse to collaborate. In the case of self-induced abortion, physicians’ disclosures to police appear to have no direct purpose other than that patients should be punished. The Argentinian court ruling poses a serious challenge to professional disciplinary authorities, since the exercise of legal power and of ethical responsibility do not always coincide. They usually do, since behavior that is legally authorized is often ethical to perform, and conduct condemned by law is frequently also unethical. Furthermore, it is usually ethical to comply with legally mandatory conduct, although the annals of honor and integrity among medical practitioners are replete with instances of defiance of harsh and oppressive laws. However, not everything authorized by law is considered acceptable in medical professional ethics. Physicians’ involvement in judicially ordered executions and punitive amputations are legal in countries that still retain these practices, but within the medical profession these are widely condemned w8x. Involvement in the force-feeding of prisoners, political activists and others engaging in hunger-strikes is also highly contentious within the medical profession w9x. Similarly, the Argentinian court’s finding that the physician was legally empowered to report her patient to the police raises the question of whether she was ethically entitled to employ that power. The question is not simply of personal ethics, or microethics, that govern the relationship between a physician and a patient w10x. It raises wider macroethical concerns of the standards of protection of patient’s confidentiality the medical profession requires of its members, and of professional representations to governments and legislatures that medical professional authorities should make on behalf of their members’ ethical integrity. Furthermore, a medical professional licensing authority or association that justifies members’ disclosures to police authorities of patients’ suspected criminal conduct should inform the public that its members serve that, as patients, they cannot expect that their disclosures will be professionally treated as confidential.
B.M. Dickens, R.J. Cook r International Journal of Gynecology & Obstetrics 70 (2000) 385᎐391
4. Disclosures among healthcare providers It has been seen above that patients are legally considered to have authorized disclosure of their confidential information to healthcare colleagues their physicians consider it appropriate to consult or engage in their patients’ care. Disclosure is usually authorized only in so far as is necessary for the purpose of care. For instance, if patients’ tissue samples are sent for laboratory testing, the patients’ known HIV-positive status may be disclosed, but history of past pregnancies or induced abortions should not be. Laboratory testing of samples should identify patients by anonymous code references rather than by name when possible, although this may not be possible when patients attend in person to provide the samples. Patients’ consent to disclosure of confidences is most easily implied when their physicians consult with specialists or seek second opinions from professional peers and disclosures are medically necessary. Similarly, consent is implied when other healthcare professionals have legitimate access to patients’ records, such as nurses administering medications or recording data. Those who receive confidential information in their professional capacity are bound legally and ethically to protect it against improper disclosure. This applies equally to information they receive about identifiable patients outside their professional responsibilities, including through others’ breaches of confidentiality. More problematic are disclosures to auxiliary staff who interact with patients but have only minor roles in their care and management, and no medical or nursing responsibilities. The law of negligence requires that care must be exercised in making disclosures to them that they need for the discharge of their functions, while protecting patients’ confidentiality regarding information they do not need. Similarly, when patients permit medical or nursing students or other trainees to be involved in their care, only necessary disclosures are authorized. For instance, a pregnant patient’s marital status is not necessary information, and describing some patients, but not others, through married titles may wrongfully disclose the unmarried status of the others. If such others
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are in fact married, creating an impression that they are not may be defamation by innuendo. Accordingly, all patients should be described without marital distinction, such as by first and last names or a maritally-neutral prefix, a female equivalent of ‘Mister’ or ‘Senor’. ˜ When disclosures of patients’ confidences are necessary for others’ discharge of their functions, patients’ physicians must ensure that they are aware of the special nature of the information and of their protective responsibilities. They must be told and trained not to discuss identifiable patients with family members or friends. Particular concerns arise with students and similar trainees, who may find relief from their low hierarchical status by using their power of knowledge about patients to discuss them among themselves or others in derisory terms. Some may find release through humor from the discomfort or embarrassment of seeing patients intimately exposed, and make jokes at patients’ expense. Part of professional training is that patients are not to be humiliated or treated with disdain, even out of their presence, and on grounds that are false, or true. Instructors’ duties are to provide training in the ethics as well as the technical skills of professionalism.
5. Limits of confidentiality There is considerable legal and ethical endorsement of a widely publicized ruling on patients’ confidentiality of the Supreme Court of California that ‘the protective privilege Žof confidentiality. ends where the public peril begins’ w11x. The case concerned the danger of deliberate violence to a specific person, but Supreme Courts have applied the principle to risk of transmission of HIV infection in India w12x and to the danger of violence done to unidentified persons in Canada w13x. The Indian case dismissed a man’s claim for damages against a hospital whose staff informed his future wife’s family of his HIV-positive status. The Court held that the intended wife’s right to health, and the provision of the Indian Penal Code making it an offence knowingly to risk spread of an infectious disease, legally
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B.M. Dickens, R.J. Cook r International Journal of Gynecology & Obstetrics 70 (2000) 385᎐391
negated the patient’s claim of confidentiality. Furthermore, the Indian Code of Medical Ethics permits the disclosure of otherwise confidential information when there is immediate or prospective health risk to an identifiable person. The Canadian case arose outside a therapeutic relationship, when a psychiatrist examined a criminal defendant at his lawyer’s request, and concluded from the defendant’s disclosures and his own clinical assessment that the defendant had a paraphiliac disorder and was a potential sexually sadistic killer of women. This expert assessment was not given at trial, when the defendant pleaded guilty to a relatively minor offence he had informed the psychiatrist was a preparatory ‘trial run’ of a proposed series of sexual killings, and was given a short custodial sentence. The psychiatrist, fearing that, on release, the defendant would return to his sadistic plans, sought judicial approval to inform the police of his finding. After two in-camera judicial hearings analogizing the facts to physician᎐patient relations and an open final appeal hearing with limits on the publication of identities, the Supreme Court of Canada established guidelines limiting confidentiality. The Court held that a particularly serious and imminent danger, such as was found here, excused the breach of confidentiality. The conditions of the exception are that: 1. there is a clear risk to an identifiable person or group of persons; 2. the risk is of serious bodily harm, including serious psychological harm, or of death; and 3. the danger is imminent. Physicians may apply these legal rulings to excuse a breach of patients’ confidentiality when, for instance, HIV-positive patients disclose their intentions to imminently engage in unprotected high-risk behavior with partners likely to be unaware of their HIV-status. However, it is highly contentious on ethical grounds for physicians to volunteer as police informants, when lesser disclosure would serve the interests of protection. Disclosure only to identifiable victims is sufficient, as in the cases in California and India. When potential victims of HIV transmission are uniden-
tifiable, disclosure to public health officers, including those with legal power to impose constraints, is usually appropriate. Perhaps more contentious are disclosures to law-enforcement authorities that patients who are HIV-positive or, for instance, addicted to teratogenic substances, propose to become pregnant. Exposing women who are pregnant, or about to be, to the possibility of police intervention can be therapeutically and otherwise dysfunctional. It may deter women from seeking or returning for prenatal care, to the health disadvantage of themselves and their children. In some settings, furthermore, disclosures to police that patients are pregnant by rape is contentious, since police may suspect any interruption of pregnancy to evidence unlawful abortion, and prosecute the rape victim, as was recently reported in Malawi w14x. Such a disclosure ethically requires patients’ prior informed consent, even when the law does not. Consent to disclosure by, or on behalf of, patients is not required, however, when children have been sexually or otherwise abused in the home by their care-givers, and they or other vulnerable people are at continuing risk. In many countries, professionals are bound by enacted laws to report reasonable suspicions of child abuse to child welfare or other appropriate authorities, and the enactments provide for legal protection against liability for breach of confidentiality. Physicians should never risk breach of patient confidentiality by their own negligence, or that of their colleagues, subordinates, family members or friends. Making deliberate disclosures of information that patients provide in confidence is more equivocal. If the law compels disclosure, compliance is ethical, except perhaps when the law has an oppressive and severely punitive purpose; i.e. except when the law itself is demonstrably unethical. Usually, however, laws are permissive, empowering but not compelling disclosure. Whether physicians employ their legal power ethically is a matter of professional concern. In cases of imminent danger, disclosure is ethically acceptable, but not necessarily in other cases. With time for reflection, physicians may consult with licensing bodies or their professional associations to resolve
B.M. Dickens, R.J. Cook r International Journal of Gynecology & Obstetrics 70 (2000) 385᎐391
apparent conflicts between the law and ethics of patient confidentiality. References w1x McInerney v. MacDonald Ž1992., 93 Dominion Law Reports Ž4th. 415 ŽSupreme Court of Canada.. w2x Criminal Code, June 6, 1997, Dz. U. Nr 88, poz. 553, Dz. U. Nr 128, poz. 840. w3x Act on the Medical Profession, December 5, 1996 ŽDz. U. 1997, Nr 28 poz. 152, Dz. U. 1997, Nr 88 poz. 554, Dz. U. 1998 Nr 106 poz. 668, Dz. U. 1998 Nr 162, poz. 1115., Art. 40. w4x Act on Physicians’ Associations, May 17, 1989 ŽDz. U. 1989 Nr 30. Arts. 41, 42. w5x Case T. 148 PS. 357r428, Corte Suprema de la Provincia de Santa Fe, August 2, 1998.
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w6x World Health OrganizationrUNICEF. Revised 1990 estimates of maternal mortality. A new approach. WHOrUNICEF, April 1996. w7x Jerkins A. Law for the rich. London: Gollancz, 1961. w8x World Medical Association Resolution on Physician Participation in Capital Punishment, September 1981, and Declaration of Tokyo, October 1975. w9x World Medical Association Declaration of Malta, September 1992. w10x Cook RJ, Dickens BM. Ethics, justice and women’s health. Int J Gynecol Obstet 1999;64:81᎐85. w11x Tarasoff v. Regents of the University of California Ž1976., 551 Pacific Reporter 2d 334, 347. w12x Mr. X v. Hospital Z Ž1998., w1999x All India Reports 495 ŽSupreme Court of India.. w13x Smith v. Jones Ž1999., 169 Dominion Law Reports Ž4th. 385 ŽSupreme Court of Canada.. w14x The Globe and Mail ŽToronto., April 8, 2000, A 19.
Ethical and legal issues in reproductive health
Law and ethics in conflict over confidentiality? B.M. DickensU , R.J. Cook Faculty of Law, Faculty of Medicine and Joint Center for Bioethics, Uni¨ ersity of Toronto, Toronto, Canada Accepted 8 May 2000
Abstract Ethical principles that require the preservation of patients’ confidential information are reinforced by principles found in several areas of law, such as law on contracts, negligence, defamation and fiduciary duty. However, laws sometimes compel disclosures of medical confidences, and more often may justify or excuse disclosures. Legally contentious issues concern patients’ confidences regarding possible unlawful conduct, such as pregnancy termination, and the risk of spread of HIV and other infections. This article reviews the various legal bases of the duty of confidentiality, and legal challenges to the ethical obligation of non-disclosure. It addresses the justifications and limits of exchange of patients’ health information among healthcare professionals and trainees, and considers legally recognized limits of confidential duties, and the scope of legitimate disclosure. An underlying theme is how to determine whether physicians are ethically justified in employing the discretion the law sometimes affords them to breach patients’ expectations of confidentiality. 䊚 2000 International Federation of Gynecology and Obstetrics. Keywords: Confidentiality; Disclosure of confidential information; Legal confidentiality; Lawful disclosure of records; Record confidentiality; Disclosure of dangerousness; Ethics and confidentiality
U
Corresponding author. Faculty of Law, University of Toronto, Toronto, Canada. Tel.: q1-416-978-4849; fax: q1-416-978-7899. E-mail address: [email protected] ŽB.M. Dickens.. 0020-7292r00r$20.00 䊚 2000 International Federation of Gynecology and Obstetrics. PII: S 0 0 2 0 - 7 2 9 2 Ž 0 0 . 0 0 2 8 6 - 1
386
B.M. Dickens, R.J. Cook r International Journal of Gynecology & Obstetrics 70 (2000) 385᎐391
1. Introduction An aspect of the primary and transcending medical ethic to ‘Do No Harm’ is the imperative duty of healthcare professionals to protect secret disclosures that patients have to make to those whose healthcare they request. Rooted in the ancient Hippocratic responsibility that defines medical professionalism, the duty of confidentiality accords with both the foundational principles and sound practices of conscientious healthcare. The principle of confidentiality confirms that patients can trust healthcare professionals not to publicize information that patients are obliged to disclose to them in order that their symptoms be properly diagnosed, treated and, if possible, cured. Secrets that patients want to protect against disclosure to their friends, close relatives, and husbands or wives often have to be shared with physicians and related healthcare professionals, for the patients’ protection of their health and very lives. Acquiring a sanctity comparable to that of the religious confessional, these secrets are entrusted to healthcare practitioners in order that patients may achieve their salvation through the mediation of medical or related practitioners. Reciprocating the trust that patients place in healthcare practitioners, medical and related practitioners impliedly offer assurances against betrayal of dependent persons they encourage to seek their help. The necessity of medical confidentiality is particularly compelling with regard to reproductive and sexual health. If persons in need of healthcare services to protect their health and lives against reproduction-related dangers and possible hazards of sexual practices do not trust their personal secrets to practitioners who possess a scientific capacity, and often a legal monopoly, to render care, they may prefer the risks of forgoing care or of seeking it through unqualified practitioners or dangerous self-help interventions. Patients may prefer the risks of transmissible infections and of unskilled treatments, for instance to terminate personally intolerable pregnancies, to requesting care from practitioners who are personally disposed, or legally compelled, to serve as police informants, or who are negligent
in their own or their staff-members’ protection of confidential information.
2. The legal basis of the duty of confidentiality The legal duty that physicians and other healthcare professionals owe to patients rests on interrelated principles. When the physician᎐ patient relationship is founded on a fee-for-service or similar contract, which is usually implied by law rather than in written language, a term of the agreement is that the physician will maintain the confidentiality of disclosures that the patient makes for the purpose of diagnosis or therapy. Furthermore, the implication governs the physicians’ support staff, who may have to know, or be entitled to know, of the patients’ circumstances, but are not free to violate their confidentiality. The duty of professionals is to make certain that their support staff, such as nurses, counselors, and administrative personnel ensure the professional integrity of physician᎐patient relationships. They are not free to talk casually about patients’ conditions, or even who the physicians’ patients are. When physicians are salaried by an institution or paid, for instance, under a governmental capitation system, no contractual ties exist between them and their patients, but courts will often find alternative legal support for the duty of confidentiality. They may imply a general duty of care that physicians owe patients, so that physicians’ deliberate or accidental breaches may make them legally liable for negligence. This is comparable to the duty of care that is an implied term of a contract, when one exists between the physician and patient. Some legal systems require proof of injury or loss before a negligent breach of a duty of care is compensable. However, where no calculable damage can be shown, the legal systems in some countries will compensate the unquantifiable emotional pain of deliberate breaches of confidentiality as a wrong Žin systems derived from English customary law, called a ‘tort’. of outrage. Legal systems have generally been slow, however, to recognize a wrong or tort arising
B.M. Dickens, R.J. Cook r International Journal of Gynecology & Obstetrics 70 (2000) 385᎐391
from negligent breach of confidentiality, where no calculable injury or loss resulted. While there may be no legal liability for the wrongful disclosure of a confidential truth, the communication of a falsehood may be defamatory. The historical formula is that a communication to a third party about a second party is defamatory if it is false, and causes that second party to suffer hatred, ridicule or contempt, or to be shunned or avoided by right-thinking members of the community. Defamation may be compensable even if no calculable injury or loss results, because loss of justified good reputation is itself compensible if the communication is in a permanent or widespread form, such as in writing or on a radio or television broadcast. This type of defamation is libel, but defamation in a transient form, such as unrecorded speech, is slander, which in some circumstances is compensable only if loss results. Defamation need not be deliberate, and may be made by an oblique reference or hint. For instance, to disclose that a woman who has had a spontaneous miscarriage ‘had an abortion’, without making clear that it was spontaneous, may lead unaware recipients of the disclosure to conclude that it was criminally or immorally induced, and so be defamatory of the woman. Similarly, to mistake a child’s age and describe a woman who is married for 6 years as having a 7-year-old child suggests conception before marriage, which would be defamatory of her in communities where unchastity is morally stigmatizing and condemned. However, these accidental defamations can be legally remedied by prompt and adequately widespread correction and apology. In some countries, courts are developing the concept of breach of fiduciary duty as a remedy for the wrongful disclosure of truthful information. The paper, or other material of the patient’s medical record, usually belongs to the physician, hospital or clinic that creates it, but the information the record contains is under legal control of the patient w1x. The physician or hospital is like a trustee of that information, and may use it only in the patients’ best interests. Any disclosure of information that the patient has not authorized can
387
violate the fiduciary duty of the record-keeper. However, when authorization is not explicitly given, it is implied where information has to be shared with healthcare colleagues to serve the patient’s interests and needs. The ethical duties of confidentiality by which physicians are bound may be contained in legally enforceable codes of practice. Professional licensing authorities may punish breaches of such codes, for instance by license suspension, or fine. In addition, the employment of physicians by hospitals or other institutions may be under contracts that require ethical conduct. Unethical breach of confidentiality is then also a contractual breach by the physician. If a hospital incurs legal liability because of a physician’s violation of a patient’s confidentiality, the hospital may be entitled to legal indemnification from that physician. Hospitals may, therefore, make it a condition of employment that staff members maintain independent professional liability insurance or membership of a professional self-defense organization, in order to ensure that funds are available to meet any damage awards and legal costs that hospitals may incur.
3. Legal challenges to the ethical duty of confidentiality A challenge to medical professional integrity and ethics is posed by laws that require, justify or excuse healthcare practitioners’ betrayals of their patients’ confidentiality. Many enacted laws apply in the opposite direction, by prohibiting disclosures by practitioners unless specifically authorized in advance by their patients. For instance, the Criminal Code of Poland defines categories of illegal abortion w2x, but legislation on the medical profession obliges physicians to maintain medical confidentiality w3x. The obligation is excluded when disclosure is required by law, but the rules of criminal procedure include no duty to report an induced abortion. On the contrary, professional disciplinary proceedings may be brought when medical confidentiality, other professional duties, or principles of medical ethics are violated w4x.
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B.M. Dickens, R.J. Cook r International Journal of Gynecology & Obstetrics 70 (2000) 385᎐391
An ethically troubling judicial decision in the Argentinian province of Santa Fe in August 1998 appears to endorse the betrayal of medical trust. The physician who attended a patient who sought medical care at a public hospital for complications resulting from a self-induced abortion reported her to the police. She was accordingly prosecuted for violation of the Penal Code w5x, with liability to imprisonment for 1᎐4 years. Under relevant law, physicians must report criminal conduct, except for facts they learn in professional confidentiality. Indeed, those who divulge professional secrets without just cause may face legal penalties. Nevertheless, invoking the supremacy of the right to life of the unborn, the provincial Supreme Court found that the physician had a legal right to breach the patient’s confidence, and violated no professional trust. The court may have been motivated by the deterrent purpose of the restrictive law penalizing abortion, but created peril to women’s right to life, which is no less legally protected. If women whose lives are endangered by spontaneous or induced abortions, or threatened abortion, are fearful of seeking medical assistance lest they may be reported to police authorities and prosecuted, the judgment will add to the tragic and growing burden of maternal mortality, now estimated worldwide at approximately 1600 deaths each day w6x. Furthermore, the court may have added to the burden of social injustice that bears on women dependent on health services from public hospitals, perpetuating the long-standing privilege of de facto immunity from punishment enjoyed by women able to afford private abortion services w7x. Physicians who become aware that unskilled abortionists are endangering the lives of women in their area may feel compelled to notify police authorities in order to protect women against them. Patients’ identities may then need to be disclosed, so that they or their friends may provide information and perhaps serve as witnesses in proceedings brought against such practitioners. However, physicians should ask patients injured by unskilled practitioners for authorization to make such disclosures, because patients unwilling
to serve as witnesses may be punishable for obstruction of police enquiries or contempt of court if they refuse to collaborate. In the case of self-induced abortion, physicians’ disclosures to police appear to have no direct purpose other than that patients should be punished. The Argentinian court ruling poses a serious challenge to professional disciplinary authorities, since the exercise of legal power and of ethical responsibility do not always coincide. They usually do, since behavior that is legally authorized is often ethical to perform, and conduct condemned by law is frequently also unethical. Furthermore, it is usually ethical to comply with legally mandatory conduct, although the annals of honor and integrity among medical practitioners are replete with instances of defiance of harsh and oppressive laws. However, not everything authorized by law is considered acceptable in medical professional ethics. Physicians’ involvement in judicially ordered executions and punitive amputations are legal in countries that still retain these practices, but within the medical profession these are widely condemned w8x. Involvement in the force-feeding of prisoners, political activists and others engaging in hunger-strikes is also highly contentious within the medical profession w9x. Similarly, the Argentinian court’s finding that the physician was legally empowered to report her patient to the police raises the question of whether she was ethically entitled to employ that power. The question is not simply of personal ethics, or microethics, that govern the relationship between a physician and a patient w10x. It raises wider macroethical concerns of the standards of protection of patient’s confidentiality the medical profession requires of its members, and of professional representations to governments and legislatures that medical professional authorities should make on behalf of their members’ ethical integrity. Furthermore, a medical professional licensing authority or association that justifies members’ disclosures to police authorities of patients’ suspected criminal conduct should inform the public that its members serve that, as patients, they cannot expect that their disclosures will be professionally treated as confidential.
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4. Disclosures among healthcare providers It has been seen above that patients are legally considered to have authorized disclosure of their confidential information to healthcare colleagues their physicians consider it appropriate to consult or engage in their patients’ care. Disclosure is usually authorized only in so far as is necessary for the purpose of care. For instance, if patients’ tissue samples are sent for laboratory testing, the patients’ known HIV-positive status may be disclosed, but history of past pregnancies or induced abortions should not be. Laboratory testing of samples should identify patients by anonymous code references rather than by name when possible, although this may not be possible when patients attend in person to provide the samples. Patients’ consent to disclosure of confidences is most easily implied when their physicians consult with specialists or seek second opinions from professional peers and disclosures are medically necessary. Similarly, consent is implied when other healthcare professionals have legitimate access to patients’ records, such as nurses administering medications or recording data. Those who receive confidential information in their professional capacity are bound legally and ethically to protect it against improper disclosure. This applies equally to information they receive about identifiable patients outside their professional responsibilities, including through others’ breaches of confidentiality. More problematic are disclosures to auxiliary staff who interact with patients but have only minor roles in their care and management, and no medical or nursing responsibilities. The law of negligence requires that care must be exercised in making disclosures to them that they need for the discharge of their functions, while protecting patients’ confidentiality regarding information they do not need. Similarly, when patients permit medical or nursing students or other trainees to be involved in their care, only necessary disclosures are authorized. For instance, a pregnant patient’s marital status is not necessary information, and describing some patients, but not others, through married titles may wrongfully disclose the unmarried status of the others. If such others
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are in fact married, creating an impression that they are not may be defamation by innuendo. Accordingly, all patients should be described without marital distinction, such as by first and last names or a maritally-neutral prefix, a female equivalent of ‘Mister’ or ‘Senor’. ˜ When disclosures of patients’ confidences are necessary for others’ discharge of their functions, patients’ physicians must ensure that they are aware of the special nature of the information and of their protective responsibilities. They must be told and trained not to discuss identifiable patients with family members or friends. Particular concerns arise with students and similar trainees, who may find relief from their low hierarchical status by using their power of knowledge about patients to discuss them among themselves or others in derisory terms. Some may find release through humor from the discomfort or embarrassment of seeing patients intimately exposed, and make jokes at patients’ expense. Part of professional training is that patients are not to be humiliated or treated with disdain, even out of their presence, and on grounds that are false, or true. Instructors’ duties are to provide training in the ethics as well as the technical skills of professionalism.
5. Limits of confidentiality There is considerable legal and ethical endorsement of a widely publicized ruling on patients’ confidentiality of the Supreme Court of California that ‘the protective privilege Žof confidentiality. ends where the public peril begins’ w11x. The case concerned the danger of deliberate violence to a specific person, but Supreme Courts have applied the principle to risk of transmission of HIV infection in India w12x and to the danger of violence done to unidentified persons in Canada w13x. The Indian case dismissed a man’s claim for damages against a hospital whose staff informed his future wife’s family of his HIV-positive status. The Court held that the intended wife’s right to health, and the provision of the Indian Penal Code making it an offence knowingly to risk spread of an infectious disease, legally
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negated the patient’s claim of confidentiality. Furthermore, the Indian Code of Medical Ethics permits the disclosure of otherwise confidential information when there is immediate or prospective health risk to an identifiable person. The Canadian case arose outside a therapeutic relationship, when a psychiatrist examined a criminal defendant at his lawyer’s request, and concluded from the defendant’s disclosures and his own clinical assessment that the defendant had a paraphiliac disorder and was a potential sexually sadistic killer of women. This expert assessment was not given at trial, when the defendant pleaded guilty to a relatively minor offence he had informed the psychiatrist was a preparatory ‘trial run’ of a proposed series of sexual killings, and was given a short custodial sentence. The psychiatrist, fearing that, on release, the defendant would return to his sadistic plans, sought judicial approval to inform the police of his finding. After two in-camera judicial hearings analogizing the facts to physician᎐patient relations and an open final appeal hearing with limits on the publication of identities, the Supreme Court of Canada established guidelines limiting confidentiality. The Court held that a particularly serious and imminent danger, such as was found here, excused the breach of confidentiality. The conditions of the exception are that: 1. there is a clear risk to an identifiable person or group of persons; 2. the risk is of serious bodily harm, including serious psychological harm, or of death; and 3. the danger is imminent. Physicians may apply these legal rulings to excuse a breach of patients’ confidentiality when, for instance, HIV-positive patients disclose their intentions to imminently engage in unprotected high-risk behavior with partners likely to be unaware of their HIV-status. However, it is highly contentious on ethical grounds for physicians to volunteer as police informants, when lesser disclosure would serve the interests of protection. Disclosure only to identifiable victims is sufficient, as in the cases in California and India. When potential victims of HIV transmission are uniden-
tifiable, disclosure to public health officers, including those with legal power to impose constraints, is usually appropriate. Perhaps more contentious are disclosures to law-enforcement authorities that patients who are HIV-positive or, for instance, addicted to teratogenic substances, propose to become pregnant. Exposing women who are pregnant, or about to be, to the possibility of police intervention can be therapeutically and otherwise dysfunctional. It may deter women from seeking or returning for prenatal care, to the health disadvantage of themselves and their children. In some settings, furthermore, disclosures to police that patients are pregnant by rape is contentious, since police may suspect any interruption of pregnancy to evidence unlawful abortion, and prosecute the rape victim, as was recently reported in Malawi w14x. Such a disclosure ethically requires patients’ prior informed consent, even when the law does not. Consent to disclosure by, or on behalf of, patients is not required, however, when children have been sexually or otherwise abused in the home by their care-givers, and they or other vulnerable people are at continuing risk. In many countries, professionals are bound by enacted laws to report reasonable suspicions of child abuse to child welfare or other appropriate authorities, and the enactments provide for legal protection against liability for breach of confidentiality. Physicians should never risk breach of patient confidentiality by their own negligence, or that of their colleagues, subordinates, family members or friends. Making deliberate disclosures of information that patients provide in confidence is more equivocal. If the law compels disclosure, compliance is ethical, except perhaps when the law has an oppressive and severely punitive purpose; i.e. except when the law itself is demonstrably unethical. Usually, however, laws are permissive, empowering but not compelling disclosure. Whether physicians employ their legal power ethically is a matter of professional concern. In cases of imminent danger, disclosure is ethically acceptable, but not necessarily in other cases. With time for reflection, physicians may consult with licensing bodies or their professional associations to resolve
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apparent conflicts between the law and ethics of patient confidentiality. References w1x McInerney v. MacDonald Ž1992., 93 Dominion Law Reports Ž4th. 415 ŽSupreme Court of Canada.. w2x Criminal Code, June 6, 1997, Dz. U. Nr 88, poz. 553, Dz. U. Nr 128, poz. 840. w3x Act on the Medical Profession, December 5, 1996 ŽDz. U. 1997, Nr 28 poz. 152, Dz. U. 1997, Nr 88 poz. 554, Dz. U. 1998 Nr 106 poz. 668, Dz. U. 1998 Nr 162, poz. 1115., Art. 40. w4x Act on Physicians’ Associations, May 17, 1989 ŽDz. U. 1989 Nr 30. Arts. 41, 42. w5x Case T. 148 PS. 357r428, Corte Suprema de la Provincia de Santa Fe, August 2, 1998.
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w6x World Health OrganizationrUNICEF. Revised 1990 estimates of maternal mortality. A new approach. WHOrUNICEF, April 1996. w7x Jerkins A. Law for the rich. London: Gollancz, 1961. w8x World Medical Association Resolution on Physician Participation in Capital Punishment, September 1981, and Declaration of Tokyo, October 1975. w9x World Medical Association Declaration of Malta, September 1992. w10x Cook RJ, Dickens BM. Ethics, justice and women’s health. Int J Gynecol Obstet 1999;64:81᎐85. w11x Tarasoff v. Regents of the University of California Ž1976., 551 Pacific Reporter 2d 334, 347. w12x Mr. X v. Hospital Z Ž1998., w1999x All India Reports 495 ŽSupreme Court of India.. w13x Smith v. Jones Ž1999., 169 Dominion Law Reports Ž4th. 385 ŽSupreme Court of Canada.. w14x The Globe and Mail ŽToronto., April 8, 2000, A 19.