Mental Health and Confidentiality
Characters in the Drama
Clancy Mnemosene, a fifty-seven year old man, active, independent but diagnosed
with onset of Alzheimer's disease.
Riata Mnemosene, Clancy's wife of twenty-five years.
Cory Heimat, a home-care nurse caring for Clancy not for his Alzheimer's but because
he had a cancerous tumor removed earlier.
Scene: A suburban living room at the home of the Mnemosenes.
Clancy: Well little girl, you can see I'm fit as a fiddle. I beat that thing.
Cory: That's wonderful Mr. Mnemosene. We must, of course, be watchful for any
recurrence. You're sure you haven't had any other symptoms.
Clancy: I'm giving it to you straight. There's nothing wrong with me at all.
Riata: He really doesn't seem to be troubled by anything. It's remarkable.
Cory: Great. I'll just finish up my notes and be going now. I don't think you'll be
needing home care visits now. We'll see what Dr. Wong says.
Clancy: Okidoke. If you're all done, I'm going out to finish that new fence I'm putting
up. Call me when lunch is ready Riata honey.
Riata: OK. I'll just go down to the end of the drive first and see what the mailman
dragged in. (Riata peers out the back window to make sure Clancy is out of earshot.)
Cory dear, did they not tell you about his latest diagnosis?
Cory: Did they find more mets from the cancer?
Riata: Oh no, he really does seem to be in remission. At first they thought it had
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gotten into his brain. You see dear, Dr. Elias tells us that Clancy is in the early stages
of Alzheimer's.
Cory: Oh no.
Riata: I'm afraid so. It's almost worse than the cancer. It kills you but leaves your body
walking around. I've been reading about it.
Cory: I haven't seen any symptoms at all.
Riata: No, he's not bad yet. He just has these episodes of confusion from time to time.
He's in complete denial like he was with the cancer.
Cory: It's hard on you.
Riata: I can't deny that. He's always been a bit of a boy about things, never admitting
when things were wrong. But this time I'm scared.
Cory: Why? Is he still driving?
Riata: (Peering out the window) Let's walk down to the end of the drive. I don't want
him to walk in on us and overhear something. He gets really strange when you
challenge his damn positive thinking.
Cory: I'm so sorry. You've been through a lot.
Scene 2 Riata and Cory walk down the drive talking while Riata peers over her
shoulder from time to time at the house they have left.
Riata: Driving around here would be bad enough. He's got the camper all packed.
Cory: Oh gosh. Where are you going?
Riata: Not me, just him and the boys. The boys you understand are all grandfathers.
It's his annual hunting trip.
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Cory: Oh no!
Riata: We just got the diagnosis yesterday, but he'll not change his plans for that. He's
driving up the old McAllen road.
Cory: Geez! That one that winds up the cliffs?
Riata: Yeah. If he doesn't kill them all on the drive, he might bag one or two as deer.
It seems like a joke, but it's my Clancy and he's going to pieces. It's not so funny. I'm
living in a black comedy.
Cory: When is the trip planned?
Riata: Tomorrow bright and early, 6 AM. I haven't done anything but argue with
Clancy. I've got to stop it somehow. (Riata peers back at the house) Maybe nothing
will happen. He's been fine for a week and more, but what if?
Cory: I don't know how quickly I can get his driver's license and hunting license
revoked. What else can we do to stop him?
Riata: We're going to have to go behind his back and tell his old buddies. It half kills
me to even think of doing that. He'll take it as a huge betrayal. I might as well just spit
in his face in front of all his friends. I don't want him to hate me in the last of our time
together. (Riata weeps.)
Cory: (holds Riata) Listen, Mrs. Mnemosene, I can do this for you. Give me the
names of the men he's going with. They don't need to know this comes from you.
Riata: It wouldn't take much to guess would it. How would you know to call them?
Cory: I'll find a pretext that keeps you out of it. I'll say the doctor told me about the
Alzheimer's. I'll figure out something to explain my calling these men. Either Mr.
Mnemosene won't go, or they won't let him drive and won't leave him alone with
firearms. If they really are his friends, they'll help him and you.
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Riata: (Looks long and hard back at the house) I'm going to write some names on the
back of this envelope dear. You do your best. If you can't do it you let me know.
Cory: It's got to be done. I'll do it. Be sure of that. I'll do it.
Riata: It just takes the heart right out of me.
Background Facts
Alzheimer's Disease
1. Alzheimer's disease is a form of dementia, an organic loss of intellectual function.
2. People become gradually more confused and incompetent due to increasing degeneration
of certain brain cells (basket cells, the inferior stellate cells of the cerebellar cortex).
3. Patients with Alzheimer's may not believe or realize that they have a problem.
4. Alzeheimer's patients become disoriented and, eventually, may be unable to recognize
people and places they have known all their lives.
5. Because of the dangers resulting from incompetence induced by Alzheimer's, in many
jurisdictions it is possible for health care professionals to initiate a process that will
revoke patients licenses to operate cars, heavy machinery, guns and other potentially
dangerous items.
6. At the onset of the disease, episodes of confusion may be rare.
Confidentiality
There is a general expectation that health care professionals will safeguard the privacy of
patients. This includes maintaining patient confidentiality. It is generally accepted that the
requirement of patient confidentiality is not unconditional, and can be overridden when
necessary to prevent the patient from harming himself or others. The conditional nature of the
duty to maintain patient confidentiality is reflected in the Canadian Nurses Association’s Code of
Ethics: “Nurses safeguard information learned in the context of a professional relationship, and
ensure it is shared outside the health care team only with the person’s informed consent, or as
may be legally required, or where the failure to disclose would cause significant harm.”
www.nurses.ab.ca/Carna-Admin/.../CNA%20code%20of%20Ethics.pdf
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Ethical Issues Raised by the Drama
Should Clancy’s wife, Riata, disregard her husband’s decision and warn Clancy’s friends that he
has Alzheimer’s and so may not be able to drive or to hunt safely? Should Clancy’s home care
nurse, Cory, intervene and inform Clancy’s friends about his Alzheimer’s and or his inability to
drive and to hunt safely? More generally, what is the balance between patient confidentiality and
harm prevention? Under what circumstances should family members violate patient
confidentiality? When, if ever, should health care professionals violate patient confidentiality?
In the analysis below, we will focus on the narrower question of whether Riata and or Cory
should intervene and tell Clancy’s friends of his diagnosis of Alzheimer’s.
Ethical Theories
Classical Act Utilitarianism
The right actions are the ones that create the greatest happiness (or pleasure) and the least
unhappiness (or pain) for all sentient beings affected by those actions.
Act utilitarians apply this principle to every action. Act utilitarians view the rightness of an act
entirely in terms of its consequences: the right act produces the best net consequences for all
concerned. Respecting privacy, or safeguarding confidentiality, are not, in themselves, morally
relevant considerations for the act utilitarian. They matter only insofar as they are means to
minimizing unhappiness or maximizing happiness.
The question in this case is what course of conduct will produce the best consequences for all
those affected? Will it, for example, have better consequences for all affected to leave Clancy
Mnemosene alone or to restrict him with a view to protecting him and his hunting companions?
Riata Mnemosene and Cory Heimat may be exaggerating the danger of allowing Clancy to drive
and to shoot. Clearly, it would cause considerable unhappiness for the Mnemosenes and for
Clancy's friends to restrict Clancy. Clancy would probably derive considerable satisfaction from
taking the hunting trip as planned. On the other hand, while the danger of an accident is small,
the results of an accident for human misery could be very great. Ideally we would conduct a
precise cost/benefit analysis of the hunting trip. We would also discount the value of the
happiness or unhappiness the hunting trip might bring by multiplying these outcomes times the
probability of their occurrence. Such precision is not possible, however, in this case. We must
make our best approximation.
While the probability of an accident is very small, the misery it would cause is huge. That
requires us to be very cautious about letting Clancy go. He may very well object that he has
rights to make his own decisions, but act utilitarians do not believe in rights independent of
utility. The happiness that Clancy would experience if the trip goes ahead has to be weighed in
the balance against the unhappiness his wife will go through as she waits anxiously to find out if
he gets through it without incident. While Clancy's happiness from the trip is highly probable, it
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is not large in comparison to the unhappiness resulting from an accident and is diminished
further by his wife's anxiety.
Perhaps there is some better alternative between not allowing Clancy to go on his trip, and
saying nothing to his friends? Perhaps, the act that will produce the best consequences in this
case is to inform Clancy’s friends of the dangers. If his friends are forewarned and properly
briefed, they can perhaps prevent Clancy from driving, and keep close watch over him while he
is hunting. This might greatly diminish the probability of an accident. Faced with a concern that
Clancy would be greatly angered by this disclosure, the utilitarian might think it is best to tell
Clancy’s friends without him knowing about it. This, presumably, is what Cory is suggesting.
Further still, and again depending on the facts of the case, it may be better if Clancy’s friends are
told by his nurse, Cory, than by his wife, Riata. That way, if Clancy learns of the breach of
confidentiality, his relationship with his wife will be preserved. Of course, it is dishonest to go
behind Clancy’s back, but dishonesty, for the utilitarian, is not necessarily wrong. Indeed,
dishonesty is right, if (and only if) it will produce the greatest happiness (or least unhappiness).
There is, moreover, an additional consideration that weighs heavily on how utilitarians would
view this case. Quite independently of the other considerations in this case, utilitarians generally
oppose hunting for sport. Animal suffering is a source of great unhappiness for the sentient
beings that are being hunted. Stopping the hunting trip is, in itself, a very good thing from the
utiltiarian point of view even if it brings about considerable dissatisfaction for the human beings
involved. Their psychological pain is more than balanced by avoiding the the physical suffering
the animals would have experienced by being shot.
In the long term, as far as strictly human suffering is concerned, Clancy will have to be
counseled and brought to understand the pain he is causing Riata and the dangers inherent in his
condition. In the short term, if he refuses to take others into account, it would be morally
required for Riata and Cory to protect people from great harm, using the least intrusive means
possible.
Rule Utilitarianism
Rule utilitarians claim that the right act follows the best rule or rules, and the best rule is the one
that, if consistently followed, will produce the greatest amount of happiness, or the least amount
of unhappiness, for everyone concerned.
Rather than merely trying to produce the best consequences solely in the case of the
Mnemosenes, rule utilitarians think we should look at the broader picture. Breaking
confidentiality may, as we saw above, produce the greatest amount of net happiness in Clancy’s
case, but, as a rule, breaking patient confidentiality may not produce the greatest net happiness.
In general, we might agree with John Stuart Mill that competent people should be free to act as
they see fit, provided they do not harm others. This is because, along with Mill, we might think
that competent people are able to know their own interests better than anyone else, and as a
result, they are best equipped to make decisions in matters that primarily affect themselves.
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Clancy’s case is complicated, however, by the fact that he is in the early stages of Alzheimer’s
disease. He may no longer be a good judge of what is in his own best interest. Moreover, he
presumably does not realize the increased risk of serious harm to others that his hunting trip
involves. Given this, the rule utilitarian would do well to ask which rule will produce the
greatest balance of happiness over unhappiness when dealing with limiting the liberty of those
who are suffering from mental impairments. Perhaps a rule would be accepted as leading to the
greatest good that would give such patients rights to autonomy, but rights to autonomy that could
be restricted when putting others or oneself at significant risk of serious harm. Given that going
on a hunting trip, and driving on winding mountainous roads puts Clancy and others at a
significant risk of catastrophic harm, and given that Clancy is suffering from the early affects of
Alzheimer’s disease, it seems like it would be best in terms of net positive consequences to
follow a rule that required some interference in liberty in his case. Rule utilitarians, however,
would likely support a rule that permitted the least interference in impaired individuals’ liberty
necessary to prevent serious harm to self or others.
One other consideration is worth mentioning. It may matter to the rule utilitarian not just that
Clancy’s liberty be interfered with in a manner that is least invasive, but also who interferes with
Clancy’s liberty. It may be best for his wife, Riata, to take matters into her own hands, rather
than his nurse, Cory. For there may be good utilitarian grounds for requiring health care
professionals to maintain patient confidentiality unless it is absolutely necessary to prevent the
patient from harming self or others. Given that the degree of risk to Clancy and to others is
uncertain, it may be best for Cory to follow the rule of maintaining patient confidentiality.
Kantian Rights Theories
Kant defends the following two principles of right action:
Act only according to those maxims that can, at the same time, be consistenly willed as a
universal law.
Act so that you treat humanity, whether in your own person or the person of another, always as
an end and never merely as a means.
What these principles imply about Clancy’s case depends crucially on whether Clancy is viewed
as a free and rational individual or not. If Clancy is viewed as a free and rational individual, then
Kantian principles suggest that it would be wrong to stop him from going on his camping and
hunting trip, and wrong to inform Clancy’s friends of his health condition, without Clancy’s
consent. If, on the other hand, Clancy is viewed as someone who is not a free and rational
individual (because of his Alzheimer’s disease), then it appears that a Kantian would view it as
morally permissible to stop Clancy from going on his camping and hunting trip, and or to inform
his friends of Clancy’s diagnosis with or without Clancy’s consent.
First, let’s assume Clancy is still an autonomous, rational individual.
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According to the universal law version of the categorical imperative, one may act only according
to those maxims (or rules) that can consistently be willed as a universal law. The action that
Cory and Riata contemplate, interfering with Clancy's planned hunting trip, should therefore be
judged by looking at the rules they are following if they perform this action. The rule they
would be following would be that one will go behind a patient’s back who is in the early stages
of Alzheimer’s when necessary to reduce risk of injury to that person and to others. Acting on
such a rule may have good consequences, but this is not relevant for the Kantian. Rather, for the
Kantian, we need to ask whether there is any contradiction in willing that everyone would go
behind the backs of people who were just diagnosed with Alzheimer’s whenever it was necessary
to reduce the risks of injury. Now it would be morally acceptable to act on this rule only if it
could be consistently willed. But it appears that such a rule could not be consistently willed, for
going behind people’s backs would not work if it was always done. Everyone would know that
confidentiality would be betrayed, and so the practice of secretly breaking confidentiality would
not be possible. Thus, according to Kantian ethics, it appears that it would be wrong to go
behind Clancy’s back and to secretly disclose information about his medical condition.
The same conclusion appears to be reached when we consider the humanity formulation of the
categorical imperative: Act so that you treat humanity, whether in your own person or that of
another, always as an end, and never as a means only. Kant’s principle requires that we always
treat autonomous rational beings with respect. Among other things, this means that we must not
treat a person who can freely and rationally make his own decisions, as if he cannot make his
own free and rational decisions. Assuming Clancy is still rational in this sense, this principle
requires that Clancy’s friends be told about Clancy’s medical condition only if Clancy consents.
Suppose, however, that Cory and Riata choose to confront Clancy directly and to appeal to him
to take his companions' safety into account. In that case, they would be treating Clancy as an
end in himself not as a mere means to an end. This would be permissible on the Kantian view,
for it treats everyone involved with respect for their rational nature. There also seems to be no
contradiction in willing a universal law that says that everyone who unwittingly puts people at
risk of harm should be warned of the dangers so one can take steps to ensure that everyone is
kept safe.
Now, let’s assume that because of his Alzheimer’s disease Clancy is not an autonomous,
rational individual, at least with respect to assessing the risks of driving and hunting.
Suppose, however, that Clancy remains in denial, and that perhaps because of his Alzheimer’s he
is unable to make his own free decisions about the dangers of hunting and driving. In this case,
it may be permissible for Cory and Riata to take steps to prevent Clancy from going on his
hunting trip, either by informing his friends or by asking the state to immediately revoke his
driver's license and hunting license. These steps may be permissible because they would not be
treating a rational being merely as a means, for Clancy would arguably no longer be a rational
being, at least with respect to certain decisions. Moreover, it seems like a rule that says, “those
who are unable to make their own free and rational decisions can be prevented from unwittingly
harming oneself or others” can be consistently willed as a universal law.” And so if Clancy is in
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fact incompetent to make his own decisions about hunting, then, according to the universal law
test, it would be permissible to prevent him from going on his hunting trip.
Intuitionist Rights Theories
Morality consists in following a variety of prima facie duties, each of which is self-evidently
true. We use judgment to determine which prima facie duty is most pressing in a given situation
– the right thing to do is to follow the most pressing prima facie duty in that situation.
Cory and Riata must consider all the relevant duties that arise for them in this circumstance and
weigh them carefully each against the others. Some duties that apply to this case include duties
of beneficence (to care for the well-being of others) and duties of honesty. The duty of
beneficence gives Cory and Riata a reason to limit Clancy’s liberty, by either not letting him go
on the trip, or by informing his friends so that they can steps to ensure everyone’s safety. The
duty of honesty seems to require both that the friends be told of the risks, and that Clancy be told
that this is going to happen. Beyond these duties that apply to both Cory and Riata, there are
duties that apply to only Cory or to only Riata in virtue of the relationship that they have with
Clancy. For example, Riata may have duties of fidelity, gratitude, and loyalty, among others to
Clancy. For example, duties arising from promises that Clancy and Riata have made to support
each other in their aims would have to be given serious weight. Clancy may also have done much
that is good for Riata in the past and have a claim to her gratitude and loyalty. Indeed, that may
be what disturbs Riata when she says that Clancy would see her interference as a betrayal. Cory
has a duty of fidelity here too, though this duty may generate conflicting reasons for action: she
has a duty resting on her general promise as a member of the Nursing Profession to keep her
patients from harm, and she has a clear duty not to violate patient confidentiality unless it is
absolutely necessary. These considerations might lead the intuitionist to conclude that Cory
should behave honestly with Clancy, explain the dangers of his driving and hunting, and
encourage him to not go on the trip or to, at the very least, inform his friends of the dangers, so
plans could be modified to reduce the risk of accident. If Clancy fails to inform his friends, then
perhaps the intuitionist would argue that matters should be turned over to Riata, and that she
should take steps to protect her husband and his friends from serious harm.
Social Contract Theories
The right actions follow the rules of the ideal social contract. These rules are discovered by
asking what rules people in the original position would choose. The original position is a purely
hypothetical situation in which people are:
1. equally powerful
2. equally intelligent
3. self-interested
4. ignorant of their own advantages and disadvantages (behind a veil of ignorance)
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The point of the original position, and especially the veil of ignorance, is to guarantee that the
rules of the ideal social contract are fair.
Behind a veil of ignorance we would not know whether our interests, in the real world, would be
better served by allowing benevolent interference or not. We would understand that a good range
of autonomous action (that is, self-determination) is a prerequisite for satisfaction in human life,
but it is the limit of autonomy that concerns us. If we allow too much autonomy, then we are
threatened by our own and others’ foolish actions. If we allow too little autonomy, our interests
are unlikely to be well served. Even with good intentions, others who try to run our lives rarely
understand us well enough to do us good.
In the original position, we are going to want to avoid others’ controlling our lives, since we
know that we are likely to know our own interests best. Still, we will want to limit individual
autonomy at least to the extent that no one can use their autonomy to subjugate others’
autonomy. Beyond that, we may want to allow for some mild paternalism to make sure that we
do not foolishly act against our own interests. But people in the original position will want to
protect their right to autonomy until incompetence is proven, or until a person harms others, or
poses a clear and imminent threat of harm to others.
In Clancy's case, the harm to self and to others is speculative, as is his incompetence. Until he
actually does something that creates a problem, or until his incompetence is clear, we have no
moral grounds for restricting Clancy. That does not mean, however, that it would be wrong of to
warn Clancy's friends that he may have episodes of incompetence. In the original position, we
would know that autonomy could not serve us well unless we had adequate information about
potential benefits and harms. Those who have knowledge of risks should inform competent
adults who run those risks. It is a commonplace that informed consent is morally necessary for
research subjects, for example, but the principle just stated would broaden the duty to inform. In
general, if we know about a serious danger others may risk, we have a duty to inform those
others of the danger. In the original position, we would see our interests as depending on
knowledge and the freedom to act on that knowledge. Clancy must, nonetheless, be treated with
respect and given the opportunity to tell his friends on his own. In any case, Clancy and his
friends ought all to be made fully aware of his diagnosis and its possible implications. Should
they choose to carry on with their planned hunting trip, that is their right. They must, however,
be allowed to do so with their eyes open. Confidentiality, if necessary, may be breached to
prevent serious harm.
Virtue Ethics and Care Ethics
The right actions are the ones that a virtuous person would do. Virtue theories usually give a list
of virtues and/or a model person to emulate. The virtues are positive character traits, manifested
habitually, that are part of the good life for a person to lead. For Aristotle, these virtues are said
to be in the mean between two extremes. For example, courage is a virtue, as it is a character
trait that is needed for living well. It is also a mean between the extremes of cowardice and
being rash.
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A virtue theorist would ask what virtues are relevant in Clancy’s case. Honesty, loyalty,
courage, compassion, justice, and benevolence, among others, are the relevant virtues in this
case. Someone who did nothing, and did not warn Clancy’s friends of the dangers would seem
to behave viciously, for such an action would manifest recklessness, dishonesty, and nonbenevolence. Preventing Clancy from taking the trip may manifest injustice. After all, Clancy
may still be competent, and to restrict a competent person’s liberty for speculative reasons seems
unjust. Warning Clancy’s friends of the possible dangers, without telling Clancy, seems
cowardly and dishonest. So perhaps the virtue theorist would support explaining to Clancy the
dangers of his driving and hunting with his friends, asking Clancy to inform his friends of his
situation, and if Clancy refuses, explaining to him that his friends would be told by someone
else, presumably either Riata or Cory. This path is far from easy, but it does seem to manifest a
number of virtues, such as honesty, courage, tact, compassion, benevolence, and so forth. Any
other decision, in comparison, seems less virtuous.
Care Ethics
The moral life consists in nurturing caring relationships. Rules of right conduct are rejected;
instead, attention to the particular needs of particular individuals in particular relationships is the
key to acting morally.
In Clancy’s case, the care theorist will not be concerned with utility calculations or with acting
according to the categorical imperatives, or following the rules of an ideal social contract.
Instead, you have to attend to the needs of Clancy, Riata, Clancy’s friends, and perhaps, the
relationship between Cory and Clancy. It is difficult to determine what is the most caring thing
to do in this case. What is most caring for Clancy’s friends (warning them of the dangers) may
not be most caring for Clancy (maintaining his confidentialty), for instance. But perhaps that is
an illusion. It would not be caring for Clancy if silence put him in harm’s way. Consequently, a
reasonable argument could be made for helping Clancy come to terms with the risks of driving
and hunting, given that he has Alzheimer’s; it may involve talking to his friends as well, and
working together to find a satisfactory compromise, e.g., perhaps they could find a less risky
activity to do with Clancy.
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Smolkin, Bourgeois & Findler: Debating Health Care Ethics, 1st Canadian Edition