A Defence of Unqualified Medical Confidentiality Kenneth Kipnis A Defence of Unqualified Medical Confidentiality

Confidentiality and Professional Obligations When, if ever, can an MD’s obligation to patient confidentiality be broken? The Case of the Infected Spouse Both husband and wife are patients (or wife was a patient?) Husband seems to have contracted AIDS since the have separated. Wife and husband reconciling but husband doesn’t assure MD he will inform wife of husband’s infection.

Reasons to break confidentiality 1) MD knows H is infected and infectious. 2) MD reasonably believes W is not infected. 3) W’s vulnerability is both serious and real. 4) Assuming that preventing W’s infection is the goal, it is probable that, if W knew of H’s infection, she would avoid exposure. 5) W is not a mere stranger but bears an important relation to MD – she’s his/her patient.

Kipnis disagrees Misunderstandings about “professional obligations” Often taken as 1) What the Law requires, or 2) one’s personal morality, or 3) what’s required by one’s deepest personal views Kipnis argues that it is none of these.

Law Tarasoff case UC Berkeley psychologist informed by patient he was going to kill his girlfriend. Although patient briefly detained, he was let go and he killed his girlfriend. Berkeley sued successfully because they didn’t inform Tarasoff: “The protective privilege ends where the public peril begins.”

Law Seems to have a straightforward application to Infected Spouse case where MD obligated to tell W. But ... There’s a difference b/w “special” and “general” legal duties. Typically, we have few if any “general” legal duties to protect others. Most of them are “special” duties, like the ones health care workers have.

Law There’s also a difference b/w legal and moral duties. A legal doesn’t always entail a moral duty. Too often, we place professionals (& their ‘special’ legal duties) in untenable position where fulfilling legal duty is inconsistent with their ethical duty. Eg., reporting child abuse when state system doesn’t work; journalists having to tell their sources. This needs to be corrected.

Personal Morality Morality as ‘mores’ – those beliefs we grow up with. Pluralistic vs. mono-valued societies Professional codes vs personal morality (e.g., Jehovah witness MD and blood transfusions) Ethics vs Mores Professions need to move beyond mores to reach a responsible consensus on professional standards. Can this be done for MD’s by, e.g., not working in various fields &/or referrals?

Personal Values Personal values vs. professional ethics ‘What should I do?’ vs. ‘What should a good doctor do?’ Personal values don’t entail a moral action (e.g., Hannibal Lecter) We shouldn’t appeal to personal values when deciding what MD’s should do – nor should we appeal to the law, institutional practices, or personal mores.

The concept of a Professional Obligation “Core Professional Values” E.g., trustworthiness, beneficence Two vectors: (1) Shared aspirations; (2) bottom line. Priority rules for when core values conflict Removal of ambiguity for cases when core values are unclear.

3 further elements to professional obligation (1) Core values part of professional education (2) Core values represent goods that the public wants and expects of members of the profession. (3) exclusive reliance on the profession through monopolies

The (Professional – not Personal) Duty to Diminish Risks to third parties Standard interpretation. Because the risk to an individual is grave and immediate, the duty to inform outweighs duty to confidentiality. Hence, duty to confidentiality is conditional and qualified. I.e., it holds in some/most situations, but not in all.

Kipnis disagrees: argues for a duty to unqualified, absolute confidentiality What effect will a conditional, qualified confidentiality have on patients? Kipnis argues it will result in fewer patients going to physicians to reveal info that want kept confidential: e.g., HIV and Japanese going to Hawaii to get tested because Japanese doctors didn’t keep patient HIV infection confidential.

Looking closely at the consequences The Infected Spouse case seems to be a case where we break confidentiality to achieve best consequences. Kipnis thinks this is false since it fails to consider: (i) that patients that are willing to have their information disclosed will sign a waiver of confidentiality; (2) those that won’t sign a waiver will NOT go to their physician. Hence, breaking confidentiality does NOT produce the good consequences you hope for and puts confidentiality at risk.

Questions Act vs. Rule Utilitarianism Moral distress and residue (from doing things against personal values but required by professional values).