Confidentiality

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Curricular Objectives

  1. To know the basis for fiduciary duties
  2. To understand the duty to treat
  3. To understand the obligation of confidentiality
  4. To understand the exceptions to confidentiality

Summary of Case

Mr. T, a patient with an infected aneurysm and AIDS, has been scheduled for surgical treatment by Dr. Suave, a vascular surgeon. Dr. Suave has cancelled the operation on two prior occasions. Today, he phones from the office to say that he has been detained and will be unable to attend, but the residents have his permission to proceed with the operation without him.


Lesson Plan

Question 1:

Should the residents proceed with surgery? Take a pedagogic vote: Yes, No, Don't know. Ask residents to justify their positions and discuss similar cases.

Question 2:

Does Dr. Suave have an obligation to perform surgery on Mr. T? Take a pedagogic vote: Yes, No, Don't know. Discuss and develop viewpoints.

Answer:
Doctors have a duty to attend patients with whom they have established a professional relationship. It takes little to establish such a relationship (ref. Picard & Robertson, p.237), and Dr. Suave's indication that he would allow the case to be scheduled in his name obligates him ethically to attend to the patient's need. Legal liability will be charged only if failure to attend leads to injury or damage to the patient. Dr. Suave also has an obligation to the residents and operating room staff to meet justifiable expectations that he will be present when he schedules an operation.

Question 3:

Are surgeons obligated to accept patients whose illness may constitute a threat to the surgeon's health or life?

Answer:
Physicians collectively have a duty to accept patients who are afflicted with contagious or other dangerous illnesses. The duty is derived from a "contract" with society giving physicians as a class a monopoly on the provision of medical care in exchange for a commitment to minister to the needs of the sick and vulnerable. Individual physicians have the right to refer undesirable or hazardous cases to others, except in emergencies or when employed by publicly funded hospitals or agencies. The ethical obligation to provide care to those infected with HIV, hepatitis, etc., is anchored in a long tradition of courageous and exemplary behaviour, reinforced by the respect of colleagues and the policy statements of surgical and medical organizations.

Question 4:

What is the obligation of surgical residents regarding confidentiality?

Answer:
As surgeons, residents have access to sensitive information about patients' diagnoses, personal lives, and prognoses. They share the confidences of the morbidity and mortality conference, including the frank acknowledgement of shortcomings and error by colleagues. The trusting disclosures made by patients and colleagues depend on a covenant of confidentiality. Inappropriate disclosure of information learned in professional confidence should be carefully avoided. Discussion in public areas, e.g. the elevator, and the use of names and other identifiers in educational rounds is a violation of confidentiality.

Question 5:

How should a resident deal with confidential information about behaviours that may cause harm if unreported?

Answer:
There are several clear exceptions to confidentiality. Third parties who are threatened with serious harm should be warned, even when the intention to harm is learned in confidence. This obligation is discussed in greater detail in the psychiatry module on Confidentiality. Patients who confide or indirectly reveal spousal abuse or child abuse must be reported to appropriate legal authorities. Sexual partners placed at risk of infection with HIV by patients who refuse to disclose their HIV status should be warned. Patients or colleagues who are dangerous to themselves or to others need helpful and effective intervention. The consequences of disclosure can be minimized by reporting to appropriate authorities, such as the surgeon-in-chief, who can protect the interests of all concerned. The structure of the residency should include a confidential mechanism for communication of confidential information without reprisal to the resident.


Bioethics Bottom Line

Professional duties to patients include the fiduciary obligation to put the patient's interests above those of the physician, the duty to treat patients in need of care, and the duty to keep confidential any details about the personal lives, health status, and other sensitive information that physicians come to know in their professional role.

Physicians' fiduciary duty to put the patient's interest first provides patients the assurance that physicians will not use their superior knowledge and skill to exploit them when they are vulnerable. This is the basis for trust in the physician, allowing patients to disclose sensitive personal information that may be useful in their care. Fiduciaries have an ethical and legal duty not to exploit the imbalance of power inherent in the relationship. It includes a requirement to provide appropriate and timely care to patients who have entered a defined relationship with the doctor.

Individual doctors have no legal duty to treat someone who is not their patient, except in an emergency requiring their intervention to prevent injury or damage, or when they are engaged as employees of public hospitals or agencies. Collectively, doctors have a "contract" with society to provide medical care. Legislation authorizing professional self regulation implies a requirement that doctors collectively will provide needed medical care to the community. The individual physician's duty to provide care when faced with personal risk is generally viewed as voluntary, constrained only by collegial and societal expectations of virtuous behaviour. (Arras, 1996) Professional organizations such as the Royal College of Physicians and Surgeons of Canada and the American College of Surgeons specify in policy statements that members are expected to provide care to patients with communicable diseases such as AIDS and hepatitis.

Exemplary experienced personnel, well disciplined routines, and standardized precautions provide protection and role models for residents confronted by the moral quandary of assuming personal risk to help the patient who is infected with potentially lethal viruses.

Confidentiality of information acquired in the course of surgical practice may include sensitive details about the health and personal lives of patients and colleagues. Physicians, including house staff and medical students, should not discuss patients in public areas, e.g. the elevator, and should not use patient names or other identifiers when presenting cases at educational rounds.

Violation of confidentiality is justified to prevent serious harms. When a psychiatric patient threatens violence against a third party, or a patient infected with HIV refuses to inform a sexual partner, it is appropriate to breach confidentiality. The physician may make such disclosures directly, but gains more legal protection by disclosing to a legally authorized agency. Confidential information about an incompetent or disabled colleague should be disclosed to the appropriate authority for the protection of patients and preservation of public trust in the standards of the profession.


References

Kleinman I, Baylis F, Rodgers S, Singer P. Bioethics for clinicians: 8. Confidentiality. CMAJ 1997; 156:521-4.

Arras JD. AIDS and the duty to treat. In: Mappes TA, DeGrazia D, editors. Biomedical ethics. 4th ed. New York: McGraw-Hill, Inc.; 1996. p. 110-6.

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