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The Blackwell guide to medical ethics Chapter 6 Medical Confidentiality Kenneth Kipnis
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The Blackwell guide to medical ethics, edited by Rosamond Rhodes, Leslie P. Francis,Anita Silvers, 2007
Chapter 6
Medical Confidentiality
Kenneth Kipnis
The Infected Spouse
The following fictionalized case is based on an actual incident.
1982: After moving to Honolulu, Wilma and Andrew Long visit your office and ask
you to be their family physician. They have been your patients since that day.
1988: Six years later the couple decide to separate. Wilma leaves for the mainland,
occasionally sending you a postcard. Though you do not see her professionally, you
still think of yourself as her doctor.
1990: Andrew comes in and says that he has embarked upon a more sophisti-
cated social life. He has been hearing about some new sexually transmitted diseases
and wants to be tested. He is positive for the AIDS virus and receives appropriate
counseling.
1991: Visiting your office for a checkup, Andrew tells you Wilma is returning to
Hawaii for a reconciliation with him. She arrives this afternoon and will be staying at
the Moana Hotel. Despite your best efforts to persuade him, he leaves without giving
you assurance that he will tell Wilma about his infection or protect her against becom-
ing infected.
Do you take steps to see that Wilma is warned?
If you decide to warn Wilma, what do you say to Andrew when, two days later, he
shows up at your office asking why you revealed confidential test results?
If you decide not to warn Wilma, what do you say to her when, two years later
in 1993, she asks how you, her doctor, could possibly stand idly by as her husband
infected her with a deadly virus. She now knows she is positive for the virus, that she
was infected by her husband, and that you – her doctor – knew, before they recon-
ciled, that her husband could infect her.
104
, Medical Confidentiality
The ethical challenges here emerge from an apparent head-on collision between
medical confidentiality and the duty to protect imperiled third parties. Notwith-
standing Andrew’s expectation of privacy and the professional duty to remain
silent, it can seem unforgivable for anyone to withhold vital assistance in such a
crisis, let alone a doctor. The case for breaching confidentiality is strengthened
by at least five circumstances. First, the doctor knows, to a medical certainty, that
Andrew is both infected with HIV and infectious. Second, knowing Wilma as a
patient, the doctor reasonably believes (let us suppose) that she is not infected.
(Wilma cannot be at risk of contracting the disease if she is infected already.) Third,
Wilma’s vulnerability is both serious and real. HIV infection is both debilitating
and, during those years, invariably fatal. Moreover the couple’s sexuality makes
eventual infection highly likely. Fourth, it is probable that, were Wilma to be told
of Andrew’s infection, she would avoid exposing herself to the risk. This is not a
trivial condition: many people knowingly risk illness and injury out of love and
other honorable motivations. Molokai’s Father Damien contracted and died from
Hansen’s disease while caring for patients he knew might infect him. Soldiers and
firefighters expose themselves to grave risk. It is not enough that a warning would
discharge a duty to Wilma, merely so she could make an informed choice. Plainly
the paramount concern is to save Wilma’s life. Finally, Wilma is not a mere stranger.
Instead she has an important relationship with her doctor – you – that serves as a
basis for special obligations. You have a special duty to look out for her health.
In the light of these five considerations, it should not be a surprise that the
conventional wisdom in medical ethics overwhelmingly supports either an ethical
obligation to breach confidentiality in cases like this one or (occasionally and
less stringently) the ethical permissibility of doing so.1 The Infected Spouse is para-
digmatic of the type of case where the duty to protect endangered parties overrides
the duty of confidentiality. Notwithstanding this consensus, it is my intention to
challenge this received view. Broadly, I will argue in what follows that confidential-
ity in clinical medicine is far closer to an absolute obligation than it has generally
been taken to be; more narrowly, that doctors should honor confidentiality even
in cases like this one. Although the focus here is on this one case, the background
idea is that, if it can be demonstrated that confidentiality should be scrupulously
honored in this one case, where so many considerations support breaching it, con-
fidentiality should be presumed as binding in virtually all other cases as well.2 I
shall not, however, argue for that broader conclusion here.
To avoid misunderstanding, I emphasize that this essay is not offered as a defense
of absolute confidentiality in medical practice. In taking The Infected Spouse as para-
digmatic of the circumstance when the professional obligation of confidentiality
is taken to be overridden, I do aim at blowing a hole in the conventional wisdom
about protecting the vulnerable. Wilma Long is exactly the type of endangered
party contemplated by the duty to breach. So if the standard argument for qualified
confidentiality fails in this single paradigmatic case – as I shall try to show – it is high
time to rethink the conventional wisdom. It can no longer be taken for granted.
Although this essay specifically addresses the professional obligations of doctors,
105
, Kenneth Kipnis
its approach applies more broadly to all professions that take seriously the respon-
sibility to provide distressed practitioners with authoritative guidance.3 While the
focus is on confidentiality in the clinical setting, the intellectual strategies used
in what follows can be employed to map the ethical dimensions of practice in a
number of fields. In taking professional obligations seriously, this approach also
represents something of a challenge to conventional thinking in medical ethics.
Background: The Concept of Information Management
Within medical ethics, the topic of medical confidentiality is best understood as a
part of a broader area of inquiry: what can be called “information management.”
Clinicians routinely encounter prodigious amounts of information about patients
(medical histories, complaints, names and addresses, etc.) and assorted items from
which information about patients can be derived (x-ray films, tissue samples, sur-
gically removed organs, cadavers, stomach contents, extracted bullets and other
foreign objects, etc.). The concept of information management calls attention to
certain ethical standards that are applicable to this body of material.
Consider a medical chart for a single hospitalized patient. This is a folder of
documents (either paper or electronic) that contains a clinical narrative. There may
be recounted conversations, an advance directive, a medical history, addresses and
telephone numbers, test results, reports from consultants, hour-by-hour nurses’
notes, and so on. As the primary repository of the most solid and current infor-
mation about the patient, the chart is essential for doctors, residents, and nurses
coming onto the hospital floor. What is this patient’s problem? What is the current
treatment plan? What is happening now? The medical chart allows all this infor-
mation to be updated constantly, to circulate freely among the caregivers and to
facilitate an empowering interdisciplinary teamwork. Omissions and errors in the
chart can be fatal. Even for doctors who work alone, the chart protects a patient
from the physician’s sudden death or incapacity. Responsibility for patient care can
be transferred to another provider should the need arise.
But even as health-related information must circulate freely among caregivers,
the medical chart contains information that may not be capriciously revealed
beyond that narrow circle. Some special justification is always required, usually
involving either the patient’s permission or restrictions on the scope of what is
disclosed.
Although – legally – the physical pages belong to the hospital, the information
on them belongs to the patient. For that reason the chart’s contents must generally
be withheld from any who are not directly involved in the patient’s care. Report-
ers, relatives, researchers, private detectives, acquaintances, employers, lawyers,
gossips, co-workers and busybodies – to name a few – may want access. But their
purposes can conflict with the patient’s interests and wants and even, as we shall
see, with the deepest obligations of health care professions. Accordingly a patient’s
106
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