TALEBEARING AND EVIL GOSSIP There is no specific term in halakha for professional confidentiality. The topic is subsumed under the general obligation against talebearing and evil gossip. Any person, including a physician, who reveals information about another transgresses the biblical precept "thou shalt not circulate as a talebearer among thy people“ [leviticus 19:16]. It is considered a great sin and has the potential even of leading to the death of people. Therefore, this precept is followed immediately by the biblical precept "Thou shalt not stand idly by the blood of thy fellow man". By talebearing, a person may actually violate seventeen negative biblical precepts, fourteen positive precepts and incur three curses. The prohibition against talebearing applies even if no harm is meant and even if the information is true. Therefore, a physician who possesses information about a patient, whether provided by the patient or by others, is prohibited by the laws against talebearing and evil gossip from disclosing that information.
EXCEPTIONS TO THE PROHIBITION if the maintenance of confidence might cause harm to another the latter may be informed (i.e., epilepsy and driving). If the individual's right to privacy conflicts with the societal good in that others may be harmed, the harm should be prevented by disclosure of the information (i.e., testifying in court). A number of fundamental principles nullify the prohibitions against talebearing and evil gossip in situations where other people may be harmed: The precept of "thou shall not stand idly by the blood of thy fellow man" includes not only situations where a person is able to save another from death but refuses to do so, but also when he is able to save another from harm. The obligation to return a lost object includes the obligation by a physician for the restoration of a patient's "lost" health and the removal of possible harm to that individual. The obligation to save the pursued from the pursuer includes the case of a pursuer who has no intention of endangering the pursued because of enmity. Thus, everyone is obligated to prevent the pursuer from harming the pursued. The exceptions are valid only if the following conditions are met:
CONDITIONS OF DISCLOSURE It is clear that withholding the information might lead to serious harm to someone else. The disclosure must be factual, accurate and not exaggerated. The sole intent of the disclosure should be to prevent harm to the other person and not because of hatred to the person. The teller must ascertain prior to disclosure that the information will be used beneficially. If the putative harm can be prevented without disclosure of the privileged patient information, the information must not be disclosed. The informer must have first hand knowledge of the information. Any potential harm to the patient by disclosure of privileged information must not be greater than the harm one is trying to prevent to another. Therefore, only the essential information needed to prevent harm to another individual may be disclosed and only to the affected person. Where such disclosure is permitted, it matters not whether the person who may be harmed asks for the information or whether it is volunteered by the person who knows it.
SIGNIFICANT DISABILITY / DISEASE Obligation to disclose upon: – Person him-herself – Parents – Physician – Anyone who knows for sure, first-hand Timing: After 2-3 times, when relations seems close Reasoning: – to avoid kidushei ta’ut – no prohibition of rechilut when innocent third party is damaged
EXAMPLES The following circumstances are specific examples in which rabbinical decisors require the physician to reveal the illness to a potential spouse: serious internal disease not apparent to others cancer mental illness infertility due to serious defects in the genital organs epilepsy serious diabetes mellitus.
MILD DISABILITY / DISEASE DEBATABLE WHETHER OR NOT TO DISCLOSE IN FOLLOWING EXAMPLES: – Previously diseased, currently healthy (seizures, attempted suicide) – temporary and treatable disease (duodenal ulcer) – Previous plastic surgery – Previous orchidectomy for undescendent testis – Diseases in the family with no genetic background – probability of danger is small, e.g., 5% (the groom's brother has epilepsy and there is a 4% chance of the groom having it)
RULES On the one hand - Currently exaggerated effort in looking for defect in person or family On the other hand - Preferably to disclose than to live falsely Golden middle road