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CONFIDENTIALITY
and
HEALTH CARE
 

I. Confidentiality.

A. The "Relationship"

B. Physician's Duty and "Breaching"

C. Permissive Circumstances and Misconduct

D. Exceptions

- Promoting Public Health

- Protecting Sensitive Information

II. The Tarasoff Case.

A. History

B. Majority Opinion

C. Dissenting Opinion

D. Tarasoff in Retrosopect

III. Other Issues Where Confidentiality is Controversial.

A. Professional Disclosure of Familial Genetic Information

- Circumstances Permitting Exceptional Disclosure

B. Topics involving HIV

- Identifiable "victims"?

IV. Some Ethical Considerations.

A. " When to tell. . . ? "

B. A Case Study

V. Where We Are and Where We Are Heading.

A. New Technology

B. Will We Be Able to Maintain Confidentiality?



As stated by Philip Hébert in his book Doing Right, "medical professionals have a long-standing duty - arising out of the relation of trust between patient and doctor - to protect the confidences of their patients" (Hébert, 43). Although this principle is generally accepted, certain situations may arise which require a more in-depth examination of the duty of a physician. Many health care professionals feel that confidentiality allows an intimate exchange of information facilitating appropriate care and a correct diagnosis. As part of their daily practice, physicians and healthcare providers "examine and invade a patient's physical and mental privacy" (43). Some medical problems are shameful to the patient and they fear the consequences of public response. Additionally, some third parties may find out information that they can use against the patient. For example, insurance companies can use HIV status against one who shows positive for the test. This can leave the patient without medical insurance or medical attention. To avoid this, the physician's duty should form a protective shield against unwanted intrusion of others. In other words, the physician has certain duties to follow to protect the patient. However, informal breaches occur all the time between health care workers in the hospital. No matter where you are in the hospital; halls, elevators, smoking areas, you cannot help hearing information about a patient.

No principle can be all encompassing. Breaching confidentiality has permissive circumstances, as long as certain rules are followed to avoid legal sanctions. Exceptions are made with regard to patient confidentiality to promote public health (i.e., to protect children and spouses from abuse or any other individual in danger) and protect sensitive information. Furthermore, certain permissive circumstances exist when a patient has authorized the physician to disclose the medical record to a lawyer or insurance company. Along with proper authorization, there are also carefully-defined policies when releasing information without the consent of the patient. With this in mind, medical records should only be granted to those with a legitimate right. In fact, the healthcare provider owns the medical record but the patient owns the information within the record. If certain permissive circumstances are not evident, the health care provider can be accused of professional misconduct which is "giving information concerning a patient's condition or any professional services performed for a patient to any person without the consent of the patient" (Hébert, 45). This is where health care providers must be careful not to break confidentiality. Although patients have a limited right to access their medical record, the final decision is made by the health care provider. If the medical record contains information injurious to the health of the patient or if the information is expected to cause harm to any individual then the record is not accessible to the patient under such circumstances.

One specific case that highlights an exception to protected patient confidentiality is the influential Tarasoff Case. On October 27, 1969, Prosenjit Poddar killed his ex-girlfriend, Tatiana Tarasoff. Two months earlier, Poddar had claimed his intentions during an outpatient therapy session with his psychotherapist, Dr. Lawrence Moore at the University at California at Berkeley's Cowell Memorial Hospital. Dr. Moore made an attempt (including the fact that he asked university police for assistance) to have Poddar confined to a mental institution for observation. When law enforcement agents decided that Poddar was harmless and released him, Moore's director, Dr. Harvey Powelson, requested that all evidence of contact between Moore and the police department be destroyed. No one, including Dr. Moore, pursued the case further. After the murder, Tatiana's parents became aware of the prior knowledge and sued the university regents, hospital, and police department, claiming that, at least, a warning should have been issued. On July 1, 1976 (more than 6 1/2 years after the murder) the Supreme Court of California found that the defendants had breached their duty to exercise reasonable care. In other words, physicians and therapists have a duty to warn third parties of threatened danger arising from a patient's violent intentions.

In establishing the decision, the majority opinion stated that the most important consideration in establishing duty to protect a third party is "foreseeability". The majority opinion found that foreseeability was evident in this case because a definitive, well-thought-out plan existed. In fact, Poddar had even set forth a loose time frame ("when she gets home from Brazil") for his actions. However, as a general rule, foreseeability is not enough. It was decided that some type of special relationship must have existed between the defendants in this case and either Poddar or Tarasoff. The majority opinion held that the relationship between a doctor or therapist and a patient is sufficient to establish this necessary link and may support clear obligation to a third person. Therefore, the doctor / patient relationship can actually be used to establish the link that allows the "foreseeability rule" to be applied. Furthermore, although it is sometimes argued that therapists cannot accurately predict whether a patient will become violent, the majority opinion held that the ability of a psychotherapist to predict if a patient is dangerous is comparable to the ability of a general physician to diagnose a physical ailment or disease. As a final statement, the court decided that, in short, "protective privilege ends where public peril begins" (Mappes, 166).

In contrast, the dissenting opinion in the Tarasoff case provided further reasons for upholding confidentiality. The first argument presented in this opinion is that "without the promise of complete confidentiality, people needing treatment may be deterred from seeking it" (Mappes, 166). Furthermore, even those individuals that do seek treatment may be unwilling to fully disclose innermost thoughts. In order for a patient to overcome inhibitions and "open up" to a therapist, this opinion argued that the patient cannot be burdened with the fear that these innermost feelings will be disclosed. A third issue raised in the dissenting opinion is that effective treatment requires trust between therapist and patient. Even if a patient is willing to seek treatment and fully disclose innermost thoughts, if complete trust, especially in the area of non-disclosure, does not exist, the effectiveness of the treatment may be sacrificed. According to this opinion, satisfactory therapy hinges upon the ability of the patient to trust the therapist absolutely. Based upon these arguments, the dissenting opinion expressed the belief that if the duty to warn was imposed upon psychotherapists, a net increase in violence would likely result...that instead of protecting third parties, forced warnings would actually place these individuals at greater risk.

As shown above, the subject and standards regarding the idea of confidentiality are complex and difficult to determine. For example, on the subject of genetic testing, both patients and physicians typically feel that the ethical norm is to respect the general idea of confidentiality. However, the principle of confidentiality is not absolute; ethical, legal and statutory obligations may permit physicians to disclose information. At a minimum, health care professionals should have an ethical duty to inform patients prior to testing, as well as upon receipt of results that the information obtained may have familial implications. Circumstances permitting exceptional disclosure are permissible when: (1) attempts to encourage disclosure on the part of the patient have failed; (2) the harm is highly likely to occur and is serious, imminent and foreseeable; (3) the at-risk relatives are identifiable; and (4) the disease is preventable, treatable or medically accepted standards indicate that early monitoring will reduce further genetic risk. It is important, though, to stress that the harm from failing to disclose should outweigh the harm of disclosure.

Furthermore, there are four positions or opinions that health care professionals often take regarding their duty or privilege to warn at risk relatives. For example, the physician may feel that confidentiality is absolute and all medical information is strictly private (that physicians have a duty to say nothing). The physician may also take the stand that the 1983 Presidential Commission for the study of Ethical Problems outlined, which explains the exceptional disclosure criteria mentioned above. The President's Commission does stress that if these criteria are indeed met, a legal duty to warn is not implied. These are only guidelines in which it would be permissible to do so! Finally, the physician may prefer to have somewhat of a 'Miranda Warning,' which would inform the patient before testing of circumstances that would result in the disclosure of genetic information to other family members.

More recently, the lack of standardization for the ethical dilemmas of confidentiality has been proven in the 1995 Florida case of Pate v. Threkel and in the 1996 New Jersey case of Safer v. Estate of Pact. In the Threkel case, a daughter suffering form thyroid carcinoma sued her mother's physician on the grounds that he knew that her mother's previously diagnosed cancer was hereditary. She claimed that this knowledge gave rise to a duty to warn the mother that her children might be at risk and should be tested. The daughter felt that, had she been tested, she would have taken preventative measures to thwart the disease. The court noted that it was not the physician's duty to warn and that to require him to do so would be difficult or impractical and would create too heavy a burden. In the Safer case, however, it was found that the physician had a duty to warn those relatives known to be at risk of avoidable harm, irrespective of potential conflicts between this duty to warn and the obligation of confidentiality. In this case, a daughter diagnosed with colon cancer sued the estate of her father's treating physician twenty-six years after her father's death, alleging that the disease was hereditary and that the physician breached his duty to inform her, thus depriving her of the chance for monitoring, early detection, and early treatment. The appellate court, even while considering Pate, overruled the trial court's desire for confidentiality within the doctor-patient relationship and held that there can be a duty to warn relatives. Again, as shown by these two cases, the legal and ethical dilemmas of confidentiality can be quite difficult.

On a different note, when discussing the topic of HIV, the duty to warn has not been extended to the realm of infectious diseases. Professionals generally protect such sensitive information by guarding HIV status. In view of the deadly nature of the AIDS virus, however, legislation to extend the duty to clinicians treating patients with HIV has been raised (in Massachusetts) but not yet passed.

The fundamental ethical question that is always involved in the issue of confidentiality is, therefore: "when should the physician breach confidentiality?" Should all medical records be completely private, only to be seen by the doctor, patient and 'authorized persons?' Should all medical records be accessible to the public at large? It is generally accepted that there should be standards for confidentiality in medicine, but perhaps such standards should be applied to each case on the basis of the case itself. As an example of a troubling confidentiality issue, the presentation asked its audience to consider the case of "Alex," a young man who was considered to be a danger to himself and/or to others upon his diagnosis years ago, but who was successfully treated over time.

This case study was met with varied reactions when presented to the audience. Some audience members suggested full disclosure to the institute, while others claimed that the patient's advancement and development since his initial diagnosis were significant enough to justify non-disclosure on the part of the psychiatrist. Other interesting options included having the psychiatrist contact Alex again for a follow-up. In this way, the psychiatrist could judge the severity of the patient's mental health now and, if the patient is again found not to be a danger to self or others, the doctor may have much less of an ethical problem informing the institute that Alex is not "psychotic." A further option would involve the doctor approaching the institute and explaining the nature of Alex's case to them exactly. Then perhaps they might judge that he is the model patient/counselor to help other 'troubled' young people see that there is hope for recovery and a successful life.

We have seen that confidentiality is an ethical issue that is not easily resolved, particularly when we consider the notion that there should be 'blanket' laws meant to cover every type of confidentiality dispute. In addition, there are factors other than pure 'moral' factors that will inevitably influence the way in which issues of confidentiality will be approached. For example, new technology allows instant retrieval of medical information and an access to a greater number of people. Some hospitals and companies are taking steps to control the "easy access" by creating unique health identification numbers instead of revealing the patients' name. Hospitals can develop an internal monitoring system, have a defined set of users with passwords that change periodically, and each user can have a specific degree of access to such personal information. Will hospitals be able to control access in the future? Will we be able to maintain any level of confidentiality? It is hard to tell where we will be in the future, as all the upcoming technology may create more problems in the realm of maintaining patient confidentiality.

Based upon the feedback that we received concerning our presentation, the majority of the class felt that we did a great job. They seemed to feel that our presentation was informative, interesting and clearly stated. However, we agree that the usage of more overheads would have been beneficial. One interesting idea that we had not considered would have been to speak with a medical professional to get his/her perspective on the issue of patient confidentiality. One member of the audience requested that even more information be provided concerning future technology and how it could contribute to increased breaches of confidentiality. Ultimately, we were challenged by the rather broad subject of Confidentiality, and came to respect the ramifications both of keeping and breaching this important duty.



Case Study

Alex is a 22 year old male. While he was a minor, he agreed to his parents' suggestion that he should begin seeing a psychiatrist. Alex would see Visions and hear Voices. The result of what he felt these Visions and Voices revealed to him constituted Delusional Thinking. The symptoms began in his teens, but grew in intensity rapidly. By the age of 16, his behavior was often very violent and even more often self-destructive.

At the age of 18, his condition worsened. . . such that he was admitted into a [minimum security] psychiatric care facility. When he entered, he was judged to be a danger to himself and/or to others. His diagnosis was Schizoaffective Disorder, a type of psychotic disorder. For a matter of weeks, he was kept in the care of the facility, then deemed mentally healthy enough to leave. He never had to return to the hospital again. However, he was given the first of many prescriptions for antipsychotic medication.

The same psychiatrist met with the Alex for almost a year after his hospitalization. His condition improved dramatically. He was eventually taken off antipsychotic medication and encouraged to undergo other kinds of therapy (outpatient group therapy, for example). Ultimately, Alex does not have to see a psychiatrist, attend therapy or take medication at all. His doctor calls him "a successful survivor."

Alex went to College and successfully obtained a B.S. in psychology. His interest and goal in life had become counseling youth. Alex thought that if someone could have tried to understand him and help him understand himself, his own life would have been a lot better. Soon he became interested in employment at a private institution for troubled youth, which was located in another state. He applied to the institution by submitting an application and then a resume'. The application asked the usual questions regarding felony convictions (and so on) and Alex officially gave the institute written permission to perform a "routine background check" on him. When asked about his history of mental health, he did not lie. . . furthermore, he told the institution the name of his psychiatrist AND the name of the psychiatric care facility where he had been treated.

The institution has a peculiar interest in its employees' mental health histories. For example, they might regard professional counselors who had a Substance Abuse problem as a potential resource; able to share a special kind of insight with youth at the institution itself. On the other hand, they tend not to accept applicants who have been diagnosed with what they consider 'more serious' disorders, such as some Dissociative, Personality, Cognitive or Psychotic Disorders, particularly when applicants also have a clinical history of violence.

Only his psychiatrist (who was also the attending psychiatrist at his hospital) has access to the official medical records of his diagnosis. The institution comes to you, the doctor, and explains its intentions, revealing why this specific information is wanted and their policy. You realize how important this step would be for Alex and strongly suspect that Alex would not be offered employment if you tell them his full history. Then again, you think the institution could be interested by his impressive recovery.

You are the doctor. Knowing the psychiatric history of the former patient, could you trust professionally that he is capable of moving on, now that he has been treated? If so, would you withhold the record of his diagnosis?

Would you still consider the former patient dangerous? After all, he will be involved in the mental health of disadvantaged youth. Certainly the patient should not have been given this type of responsibility in the days when he was severely ill. If the patient had such a disorder in the past, could there be a chance that the disorder is residual. . . and appear again? Would you break confidentiality?