Management of the patient’s care

A psychiatric outpatient arrives at her weekly therapy session extremely agitated and tells her therapist that she is going to kill her boyfriend who she has just discovered is going out with one of her best mates. the psychiatrist does not take this threat too seriously as her patient is often volatile and she certainly doesn’t think that she should breach confidentiality and warn the boyfriend. She is, however, sufficiently concerned to make an additional appointment for her patient in three days time.

The next afternoon, she is contacted by the police who inform her that the would like to come and question her in relation to criminal damage to the boyfriend’s car which has had its tyres slashed, its windscreen smashed and red blood thrown over its exterior. What should the psychiatrist do? Maintaining the confidence of one’s patients has been a central aspect of the profession of medicine since its earliest inceptions, with the Hippocratic Oath stating that ‘whatever, in connection with my professional practice….

I see or hear in the life of men which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret’. 1 This concept has consistently been part of the codes of conduct for the medical profession, both internationally and nationally with the Declaration of Geneva (1983) highlighting the vital nature of the trust and confidence within the doctor patient relationship; ‘I will respect the secrets which are confided in me, even after the patient has died’. 2 Thus it is not question of whether the doctor in this instance, or in any other situation, has a duty of confidentiality to his or her patient.

The nature of the relationship between a doctor and his or her patient is one based on trust and openness, which has its foundations in the fact that there is understanding of confidentiality about what passes between them. The nature of health care today, with increasingly multi-disciplinary management of patient care often means that information may not always be confidential within the consulting room, but is generally assumed to be so within the group of professionals involved in the care of that patient.

Referral to specialists, care from district nurse teams and social services may mean that what is discussed between a doctor and patient will be disseminated to those persons who need to know certain information in order to be able to participate in the management of the patient. In the normal course of things, this will be done openly and with the full knowledge and approval of the patient concerned. Kenny suggests that we should use the term ‘custodianship’3 of confidential information between members of the health care ‘team’, as it is more appropriate for the way in which the caring system works today.

What is more problematic, and what is at issue in this paper, is the degree to which the duty of confidentiality must override any other duties a medical practitioner may have. Doctors may find themselves in circumstances where these duties of confidentiality apparently conflict with other duties, such as when maintaining a confidence could potentially cause harm to others as in this case, or when statutory obligations demand that otherwise confidential information be imparted.

The philosophical, professional and legal aspects of maintaining confidentiality will be examined in this paper and will be used to reflect on the circumstances of this case. These perspectives do not necessarily provide absolute or consistent answers but general principles can identified and conclusions drawn. Deontological perspectives would argue that confidentiality is necessary in terms of maintaining autonomy, respect and privacy and that as such it is inherently valuable in itself, without any thought to the consequences of breaching confidences.

Breaching confidentiality is like lying in that it cannot be ‘willed as a universal law’4; if all confidences were broken, no-one would tell anything in confidence as nothing would be confidential. Issues in psychiatric cases might focus on whether the patient was deemed capable of being autonomous and rational and if not, then is confidentiality something that is appropriate? However, in this case the patient was an outpatient attending presumably voluntary therapy sessions rather than a patient who had been forced under section to attend, which would indicate an awareness of need and a degree of autonomous decision making.

The absolutism often implied by deontological perspectives can also be clouded however by the impact of one person’s behaviour on the autonomy of another; by threatening harm to her boyfriend the patient here could be said to place herself outside the scope of the rules on confidentiality, rather like, Korsgaard argues, the inquiring murderer places himself outside of moral protection by his own deceptive behaviour. 5 However, threats are often made rashly and the psychiatrist in this situation felt that she knew her patient well enough to know that the threat was not real and that a sooner than normal follow-up session would be sufficient.

Consequentialist arguments highlight the need for confidentiality in order for patients to feel secure in attending practitioners for investigations and treatment. If confidentiality was not one of the foundations of the therapeutic relationship, patients would lose trust in practitioners and would not consult with them or would not fully disclose aspects of their illness or behaviour, resulting in inadequate care or counselling.

The consequences for the general ‘public interest’ if this were to happen would be more serious than the risks of potential harm resulting from not breaching a confidence in certain instances. This patient may not have committed the crime described and would be aggrieved to find herself questioned by the police as a result of the breach of confidence from the therapist. She may decide not to attend future sessions and her psychological state could subsequently deteriorate.

It is obvious that obligations of medical confidentiality are not always clear. The problems associated with confidentiality are likely to get more confusing with the increase in debates in the public domain on such issues as confidentiality of HIV infection, access to medical records, reporting for insurance or employment purposes, and implications of genetic testing for an growing range of diseases. The issues surrounding psychiatric care and criminal reporting is another area where the margins are blurred.

The earlier quotation, taken from the Hippocratic Oath, provides one professional perspective to the duty to maintain confidentiality which places it at the discretion of the practitioner as what is considered that ‘which ought not to be spoken of abroad’. The codes of practice laid down by the Declaration of Geneva and the International Code for Medical Ethics go further by including assertions of ‘absolute secrecy…. because of the confidence entrusted in him’. 2 The GMC booklet of Confidentiality,6 updated in 1995 does allow for circumstances in which it is acceptable for patient confidences to be broken.

The exceptions include situations where consent is given or where the management of the patient care is shared between various professional practitioners, when required by the courts or by statutory obligations. Exceptions are also allowed for certain circumstances where it is deemed that information can be shared without the consent of the patient when it may be in the patient’s best interest to do so or where it is in the ‘public interest’ to do so. These latter three areas are vitally important exceptions when considering the issues surrounding the question posed, and I will return to them later.

There have been several landmark legal cases that have set the precedents for acceptable breaches of medical confidences and these will be discussed in light of the situation being considered. From W v Egdell7 came legal criteria for the need to maintain information as confidential which included that: it is not already a matter of public knowledge; it was entrusted to another person in circumstances imposing an obligation not to disclose; that protecting the confidentiality of the information is in the public interests.

A routine consultation between doctor and patient would appear to generally fulfill all these criteria as discussions are conducted within a trusting relationship of open discussion between those concerned and no-one else, and that if confidence in the profession is to be maintained then such discussions and reports arising from them must be kept secret, at the very least from outsiders with no connection to the management of the patient’s care.

An earlier case, X v Y 8 where the names of two doctors receiving treatment for AIDS were disclosed to a newspaper without permission, an injunction against publication was upheld. This was done on the basis that the public interest in maintaining faith in the confidential nature of the therapeutic relationship overrode aspects of free speech and in this particular case, any risk to patients of infection with the HIV virus from these doctors, which was considered to be minimal by the nature of their work. This is in line with the recommendations of the GMC guidelines, which promote confidentiality.

In the case of AG v Guardian Newspapers. (No. 2) [1990]23, Lord Goff provided a summary of the main tenets of the law of confidences. 24 The relationship between doctor and patient evidently requires that the criteria set in the …

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