1. Patient Confidentiality “What I may see or hear in the course of treatment or even outside of treatment in regard to the life of men…I will keep to myself”— Hippocratic Oath

2. Confidentiality is among the oldest of the virtues in the medical professions. Is it something that is still a strict duty, a relic of the past, or a requirement in need of reconstruction?

3. Why has confidentiality been important? Confidentiality is an essential part of autonomy. Not respecting a patient’s autonomy is to disrespect the patient. There is at least an implied promise of confidentiality inherent in the professional-patient relationship. That is, the patient should be able to assume confidentiality. Confidentiality is a necessary condition for the medical professional to do his/her work. The patient must be comfortable revealing potentially sensitive information in order for the proper course of treatment be undertaken. The doctor-patient relationship would be compromised without total trust.

4. A Defense of Unqualified Medical Confidentiality Kenneth Kipnis Wilma and Andrew: Do you inform Wilma? If you do, you violate Andrew’s right to confidentiality. If you don’t, you fail to protect Wilma, an imperiled third party.

5. The case for breaching confidentiality in this case: You know that Andrew is infected and infectious You are reasonably sure that Wilma is not infected Wilma’s vulnerability is both serious and real. During those years, HIV infection was a death sentence Informing Wilma would empower her to avoid exposing herself to infection Wilma is not a mere stranger—she’s a patient who has a special relationship to you as a health professional.

6. There is a contrast between LEGAL obligations and PROFESSIONAL obligations. Parallels between our case and Tarasoff: a doctor is aware that a patient will seriously injure an identified other person; the doctor knows that Andrew is seropositive; that Wilma is seronegative; that the two will likely engage in activities that are known to transmit the virus; and that breaching confidentiality can mitigate the possibility of Wilma being infected. Thus, a doctor’s warning will make it more likely that she will remain uninfected, and a failure to warn is likely to result in her eventual death from AIDS. Tarasoff, then, seems to warrant informing.

7. An important distinction between “special” and “general” legal duties. Special duties can apply to individuals who occupy certain roles. General duties apply to everyone. The duty to warn articulated in Tarasoff is a special duty only. There is no general duty to warn. That which is legal may not be ethical. We may be required to give up confidentiality LEGALLY, while professional obligations require confidentiality.

8. What does the GOOD doctor do in this situation? Is there a special duty to diminish risks to third parties? A warning: If patients know that going in to a doctor-patient relationship that the doctor will report things that are perceived as threats to the public good, then the patient will know to either withhold that information or avoid treatment altogether.

9. Conclusions: The case of the infected spouse, it turns out, isn’t at all a collision between the duty of confidentiality and the duty to protect imperiled third parties. The obligation to warn adds no real protection to those who are in danger. Patients who aren’t guaranteed unqualified confidentiality won’t report these sorts of dangers. Patients who are guaranteed will, and then they can, if they are ethical, sign a waiver and have you report. Thus, certain legal duties to report make it less likely that those in danger will actually be protected! Such duties are either unnecessary (when waivers can be obtained) or counterproductive (when disclosure is deterred). Honoring confidentiality, then, is the best path.

10. The Legal and Ethical Fiction of Pure Confidentiality James Hodge Kipnis argues that confidentiality is meaningful only if it does not: a) compromise any patient’s claim to absolute privacy; b) balance competing claims to acquire identifiable patient data; and c) promise something that a physician ultimately fails to deliver (strict confidentiality).

11. Hodge claims that confidentiality is not an unqualified right for three reasons: 1) the minute a patient seeks care through a health care system, confidentiality is abrogated. It’s the patient’s initial sharing of health data that undermines confidentiality, not the “responsible sharing of data by the doctor to protect others or the public’s health.” 2) The doctor is only one piece of the health care system. Information must be shared for this to work, yet any such sharing is a breach of unqualified confidentiality. 3) The assumption of absolute confidentiality implies that these data are more secure than they really are, and that patients themselves are not bound to protect that health and safety of others.

12. Pure Medical Confidentiality: Hodge argues that the only time that a patient’s latent health status (e.g., HIV infection) is truly confidential is prior to disclosing this to a physician or to others. Once a patient determines that disclosure is needed (e.g., for treatment), that patient’s privacy is diminished. We trade privacy for health care.

13. Confidentiality on a Macro Scale: The doctor-patient relationship exists as a larger web of health care systems that justifiably require disclosure of identifiable patient health data for numerous reasons. “Health information privacy laws at every level of government and codes of ethics reflect an essential balance between the need to protect individual privacy and promote laudable communal data sharing for public health, health research, and other purposes” (58).

14. Individual Duties to Protect the Health and Safety of Others: In the case under consideration, it is primarily Andrew’s obligation to inform Wilma. But, Hodge goes further and claims that ANYONE who knows of this situation is also obligated to warn Wilma.

15. Conclusion: “Neither the patient nor the doctor is entitled to adhere to absolute privacy in the delivery of health services. What patients should expect (and receive) is respect for the privacy of their sensitive health data that clearly lays out the bases, as much as possible, for their conditional disclosure without patient consent” (59).

16. Confidentiality in Medicine—A Decrepit Concept Mark Siegler Thesis: Traditional medical confidentiality no longer exists. It is a decrepit concept. The traditional tension: between the interests of the patient to have confidentiality and the interests of others and society when revealing that information would serve a greater good. It’s the good of the patient vs. the good of others. The patients interest in confidentiality vs. the patient’s interest in receiving the best medical care. Such care today is a very complex process, involving many people, all of whom may have an interest in your information and well being.

17. Steps to battle the trend: In any medical office, meticulous care should be taken to guarantee that patient’s medical and personal information will be kept confidential. In larger clinics and hospitals, access to records should be on a strict “need to know” basis. The practice of psychiatrists of keeping dual records is not a good standard for all medical care. It may be important for other care givers to have knowledge that a patient is seeking psychiatric care.

18. Patients should be informed what is meant by “medical confidentiality.” Patients should have a right to review their own medical records and to decide about whether their entire record is to be available to all parties. We MUST be careful about casual conversation about patients. Elevators, cafeterias, cocktail parties, etc., are all places where casual conversation about patients may be undertaken and overheard. These may be some of the most significant breaches. Percival: “Patients should be interrogated concerning their complaint in a tone which cannot be overheard.”