Physicians Ethical Responsibility Regarding Confidentiality
Please note: this paper is not a representation of my personal view on this subject, however, it is meant to highlight many aspects of this issue from one extreme perspective.
The ethical responsibility of a physician to protect third party individuals by breaches in confidentiality is both a disservice to the public as well as the patient. Confidentiality is the most important topic in a physician-patient relationship, allowing a physician to communicate with and successfully treat their patient. In this paper I will be defending the physician's ethical responsibility in maintaining absolute confidentiality.
Confidentiality is an integral part of the physician-patient relationship. As California Supreme Court Justice Tom C. Clark said in the dissent of the landmark case Tarasoff v. Regents of the University of California, without confidentiality, those needing treatment will be deterred from seeking it. Along with this, Clark says that patients already in treatment will not fully disclose information to their physicians.^(1) Take the hypothetical situation of a mentally ill patient who has the intent to do harm to a third party. As Clark says, if the patient withholds information about what he/she is thinking or feeling, the physician will not be able to successfully treat any problems. This puts the public in high danger since the patient cannot get the treatment he/she needs.^(1) On the other hand, even if the patient fully disclosed their thoughts and feelings, breaching confidentiality to tell a third party will revoke all trust the patient had and will have with mental health professionals.^(1)
Along with the physician’s ethical responsibility for absolute confidentiality, they also have a responsibility for proper communication with their patient. The benefits of absolute confidentiality become less effective than they could be if the proper dialogues are not employed. Since the physician’s power to treat and influence, both with mentally and physically ill patients, starts with communication, the most effective tool a physician can use is to engage in an active dialogue with the patient. In extreme situations, calling and checking in on a patient may be used so that the physician is able to maintain a continual treatment protocol even when not seeing the patient in their office. Through fairly regular communication, the physician is able to get a sense of how the patient’s mental or physical state is progressing in order to institute further treatment. Teaching physicians how to effectively establish a line of communication will always be more beneficial than forcing a physician to breach confidentiality through law.
Unfortunately, this is not how many states feel about confidentiality. Twenty-nine out of the forty-five states that have laws regarding confidentiality, require physicians to report confidential information when a specific third party is in imminent danger.^(3) There are a couple problems with this. The first being that physicians are not much better at predicting violence than normal people and the second being that forcing a physician to draw a conclusion will only degrade the reputation of health professionals. Many tests have shown that physicians have an average accuracy of 60% when trying to determine whether someone will be violent over the next six months.^(4) The best way to avoid this is to allow physicians to maintain confidentiality at all times. It is the physician’s responsibility to do as much as they can within the confines of confidentiality. Their job is to treat, not to predict (which they are much better at than the normal person).
Since the physician is only ethically able to communicate with and treat the patient, there becomes an issue of who is liable when the worst-case scenario occurs, in which a patient does cause harm to a third party. In these scenarios the term “reasonable care” plays a large role in determining who is responsible. This term was brought up in the Pennsylvania Supreme Court Case Joseph R. DiMarco v. Lynch Homes Chester County Inc. in which it was ruled that a physician is “[liable] to the third person for the physical harm resulting from his failure to exercise reasonable care.”^(2) Reasonable care, by definition is “the degree of care shown by a person who is responsible and trustworthy;” “responsible” and “trustworthy” being the key words in this definition5. If a physician were to practice anything other than absolute confidentiality, their trustworthiness would be in question and it would be hard to call them responsible since they will be potentially putting more third parties at risk in the future. This being said, unreasonable care is fairly easy to define. If a physician does not provide a reasonable degree of care, that being at most continual treatment, to each patient, that physician may be held liable for risk to a third party. However, if a physician practices reasonable care to a degree that is suitable for each patient, there should be no liability held against him or her.
Confidentiality is the most important topic in a physician-patient relationship. Without it, patients would be deterred from fully disclosing their feelings and from getting treatment in the first place. Allowing physicians to maintain confidentiality and use their skills to effectively treat patients is the best thing that can be done for the public as well as the patients. Physicians are there to help and treat. If forced to do otherwise by means of the law, their jobs become ineffective and the public and their patients are put in much higher danger.
Work Cited
1. Tarasoff v. Regents of the University of California. 8 Contemporary Issues in Bioethics 45. California Supreme Court. 1976. Print.
2. Joseph R. DiMarco v. Lynch Homes Chester County Inc. Supreme Court of Pennsylvania. 1990.Justia US Law. N.p., n.d. Web. 22 Sept. 2014. <http://law.justia.com/cases/pennsylvania/supreme-court/1990/525-pa-558-0.html>.
3. "Mental Health Professionals’ Duty to Protect/Warn." National Conference of State Legislators. N.p., Jan. 2013. Web. 22 Sept. 2014. <http://www.ncsl.org/research/health/mental-health-professionals-duty-to-warn.aspx>.
4. Richter, Dirk, and Richard Whittington. "Prediction of Violence in Inpatient Settings." Violence in Mental Health Settings: Causes, Consequences, Management. New York: Springer, 2006. 111-19. Print.
5. "Reasonable Care." The Law Dictionary. Black's Law Dictionary, n.d. Web. 23 Sept. 2014. <http://thelawdictionary.org/reasonable-care/>.