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
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?
Why has it 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.
Note that the first two are based in
Kantian thought, while the latter are
clearly consequentialist.
A Defense of Unqualified Medical
Confidentiality
Kenneth Kipnis
Consider the case study on page 50.
(This one is easily imagined to occur in
the dental clinic). The dilemma: 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.
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.
Contrast between LEGAL obligations
and PROFESSIONAL obligations. On
the legal side, conventional wisdom is
shaped by the Tarasoff case. The
parallels between our case and Tarasoff
are obvious:
 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.
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. Thus, there is no general duty to
warn!
But, remember, that which is legal
may not be ethical, and vice-versa.
Giving up confidentiality may, in certain
cases, be required by law, while
professional obligations require us to
maintain confidentiality. Thus, questions
about professional obligations in
medicine (dentistry) are not the same as
questions about legal obligations in
medicine.
What, then, should a GOOD doctor
do in these circumstances? Conventional
wisdom says that there is a special duty
to diminish risks to third parties. Is
there?
Caution: 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.
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.
James Hodge
The Legal and Ethical Fiction of “Pure”
Confidentiality
Hodge disagrees. 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).
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.” Patients regularly choose access
to health services over personal
confidentiality.
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.
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. We have crafted a legal
and ethical doctrine of a qualified right
to privacy. Unqualified privacy is
illusory.
Confidentiality on a Macro Scale: Doctor
patient confidentiality transcends the
type of relationship described in Kipnis’
simple case. 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).
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 (!?!). The
physician, however, may have a greater
obligation than others to warn Wilma.
Kipnis asks: Does he have to tell Wilma?
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).
Confidentiality in Medicine—A Decrepit
Concept
Mark Siegler
Thesis: Traditional medical
confidentiality no longer exists. It is a
decrepit concept. See the case study,
page 137. How many in a large dental
clinic??
The conflicts:
 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.
Remember, confidentiality is important
both for the individual’s privacy and for
improving the patient’s well being.
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.
 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.”