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Indian Journal of Community Medicine

Continuing Medical Education

Author(s): M.B. Soudarssanane, Sonal Asthana*, G Viranjini

Vol. 27, No. 2 (2002-04 - 2002-06)

Deptt. of P.S.M., JIPMER, Pondicherry - 605006 *Deptt. of Surgical Oncology, AIIMS, New Delhi

Introduction :

Professional secrecy is an implied term of contract between the medical practitioner and his patient. Its disclosure would be a breach of trust and confidence and would render the medical attendant liable to damages. One of the most basic medical values is the sanctity of the doctor-patient relationship and the confidentiality of the communication between the physician and the patient. It must, however, be remembered that a medical witness is bound to reveal them in a judicial proceedings, if ordered by the court. Patients in health care settings have a legal and moral right to privacy, which includes confidentiality of all information related to the patient1. Although patient's confidentiality has been a fundamental ethical principle since the Hippocratic Oath, it is under increasing threat in the changing health and social scenarios. Emergence of new diseases like AIDS, increased cognizance of criminal acts like child abuse, technological sophistication like DNA testing, modern data storage like electronic technology in medical records are some examples of these changing scenarios. Such threats to patient's confidentiality have to be addressed after due inter professional interactions.

Patient's secrets are theirs and theirs alone. Generally a doctor can divulge these only with the patient's permission2. Some common situations involving patient's confidentiality arise in the following circumstances.

1. Management of the patient:

At present there generally exists a system of obtaining a blanket type of consent from patients at the time of their admission for all types of investigations, procedures and any surgical intervention. This is especially seen in developing countries. This system may not be tenable by law. However, to ensure specific informed consent at each level, practical difficulties which need to be addressed include patient's ability to comprehend and react in time - particularly given the socio-cultural milieu, communication skills of health care providers and paucity of time given the heavy patient work load. A fully informed written consent at each level would currently remain a theoretical possibility.

2. Medical research:

At present, care is taken to obscure the identity of the patients in research discussions and publications. However, patients should be asked not only for overall permission for sharing their data, but also if some information should be kept out of the record or withheld. Again, difficulty in comprehension may affect precision. Identification of common interests with an emphasis of the positive side of advancement of science needs to be agreed upon. Understandably, prospective individual consent is impracticable because often, neither the desirability nor the specific subject of research is known at the time of making records; and retrospective patient tracing to obtain the records is often impossible. Hence the argument that the benefit of research far outweighs the minimal breach of confidentiality. This concept incidentally appears to be envisaged and accepted in Canadian law3.

3. Medical education:

Patient case discussions either on the hospital bedside or in classrooms form the main plank of clinical teaching methodology. Generally "paying" patients are not troubled for this purpose; almost all discussions are from general ward patients. No courtesy is extended to obtain the patient's consent for teaching purpose. Mostly the situation is that the very fact that a patient chose to consult a hospital attached to a medical college implies that he should not object to being used for teaching purpose; the presence of the chief doctor or consultant around who would discuss the case with the students is enough to bull doze indirectly the untold "power" *vested to assume the consent of patients. Generally no problem arises, as there is an overwhelmingly co-operative patient community. Also, in general circumstances requiring a breach of confidentiality are rare since information is shared only with medicos. However, it is necessary to obtain consent of patients for this purpose also.

4. Disclosure of sensitive information:

Forewarning of members of family/society in the larger interests of the society like informing others concerned regarding HIV status of patient, informing the authorities concerned about an offender in child abuse are some examples where disclosure appeared essential. However, trespassing the individual's privacy, including questions like "will it be in the interest of the patient-child at all" need deep consideration. To quote an example - there is a law mandating reporting of child abuse in all jurisdictions in Australia and New Zealand4. However, the medical profession there is of the view that mandatory reporting statutes now in force are not necessarily in the best interests of the child. In the Netherlands the dilemma has been tackled by instituting the so called Confidential Medical Centers dedicated to helping abused children. In this way, cases of child abuse can be pin pointed more efficiently and treated with more care and the child's interests are allowed to prevail over medical secrecy5...... since, otherwise, medical secrecy is a major handicap to recording the number of cases of child abuse.

In most countries, the AIDS patient is practically considered a person who is going through a punishment, having no legal rights, rather than a patient suffering from a grave illness. In the U.S.A., originally the common law did not recognize concept of professional secrecy as a right of the patient. It was only regarded as an ethical duty not actionable in court. But with the emergence of AIDS, statutes requiring written authorization for the release of confidential information were enacted. In the case of AIDS at least, strict measures should be taken to enforce secrecy in relation to all disease related information such as sexual history, HIV status and CD4 cell counts. However, an overriding duty towards society occurs when the benefits of disclosure outweigh its harm, as for example, when a HIV positive person is acting irresponsibly, engaging in risky behavior without warning the partner. All persons who have a compelling interest such as sexual partners, needle sharers, medical and nursing attendants should be provided with this information. It should also be extended to mortuary attendants when the patient dies6.

It may be mentioned here as an additional example that feminist ethics may have particular importance in the development of an ethical stance towards testing and counseling for heritable breast and ovarian cancer, where a positive finding in one patient implies that family members are also at risk....... and a legal distinction has to be made between a breach of confidentiality and the legitimate sharing of information in a patient's interests or to prevent harm to a third party7. A balance has to be struck between the duty to confidentiality and the duty to warn.

5. Medical Records:

Medical ethics is of great importance in health data protection. The main area of confidentiality is patient records. Physicians must be able to store and dispose of records securely. Patients should be asked whether some information should be kept out of the record or withheld if information is released. Patient's identity should be kept secret even during peer review of medical records. There are provincial legislations in Canada that outline the circumstances in which confidential information may be divulged. Because of the "team approach' to health care, hospital records may be seen by many health care and administrative personnel8. Similarly, the Australian Medical Association has modified the absolute rule requiring confidentiality in the doctor-patient relationship. Though this is seen as coming of age organization, the change still remains controversial as there are no guidelines when breaches of confidentiality are justified9.

A problem with our hospital records is that they are freely available to all the staff and sometimes even to outsiders. Ownership of medical records usually vests in the doctor or the institution treating the patient; but such ownership is custodial rather than absolute. The international trend is to allow patients to inspect their records and to allow *them to make copies thereof. Among the developing countries, South Africa has taken the lead in application of similar trends given the provisions of their interim and working draft constitution10.

In the field of medical informatics too, ethical principles have to safe guard confidentiality, security and access to patient records. The electronic health record is accessible over networks and allows exchange of information both within the institution and across its borders. Efforts have been made to draft ethical code for informatics as fundamental principles according to which data protection and access to official information could be reconciled. Maintaining adequate confidentiality of these records while still facilitating patient care is paramount to these efforts. For instance, even in the troubled Sarajevo, significantly many jurisdictions have drafted laws based on ethical code for informatics on health care delivery11. Incidentally, this system also serves to establish uniformity of standards in medical informatics in addition to safe guarding adequate confidentiality. This is a significant development because, even in the US apart from individual state jurisdictions, there is currently no comprehensive federal legislation (to ensure uniformity) dealing with privacy of a citizen's electronic medical record12. Broadly the system has to be developed where only scribbled data - data from which all identifiers have been removed can be used even for peer reviews. Computer records must be carefully protected against casual browsing or unauthorized access. Fax machines and cordless/cellular phones can also allow unauthorized people to see or overhear confidential information8. It may be necessary to sacrifice some individual privacy to receive the benefits of a computerized record. There has to be comprehensive legislation dealing with the privacy of a citizen's electronic medical record.

Overall the situation warrants that the patient's right to privacy need not be total. Under certain circumstances, that right must yield to the State's fundamental right to enact laws to promote public health and to ensure public safety and welfare. However, checks have to be built-in against the following negative influences: lack of knowledge on the part of the health care providers, fear by provider, lack of patient education, lack of confidentiality, lack of honesty and blaming the victim. The health profession lacks sufficiently well defined organizational structure, culture and perception to support security. At the individual level the respect for confidentiality is firmly established in code of ethics and in law. However, it is sometimes necessary for physicians to breach confidentiality. Physicians should familiarize themselves with the existing laws governing the disclosure of certain kinds of information without the patient's authorization. Whenever possible, any breach of confidentiality should be discussed with the patient before hand.

References:

  1. Nicol TE. Confidentiality versus disclosure of a patient's infectious status. Gen Dent 1997; 45(1): 78-80.
  2. Mc Cleave NR. Confidentiality in general medicine and police service medicine. Australian Family Physician 1995; 24(3): 394-7.
  3. Emson HE. Minimal breaches of confidentiality in health care research: a Canadian perspective. J Med Ethics 1994;20(3): 165-8.
  4. Budai P. Mandatory reporting of child abuse: is it in the best interest of the child? Aust NZ J Psychiatry 1996 Dec; 30(6): 794-804.
  5. Van Veenendaal E. Child abuse: does disclosing the fact have implications for medical secrecy? Med Law 1993; 12(1-2): 25-8.
  6. Jayawardena H. AIDS and professional secrecy in the United States. Medicine Science and the Law 1996 Jan; 36(1): 37-42.
  7. Bernard MD, Nancy P, Kathryn MT. Legal and ethical issues in genetic testing and counseling for susceptibility to breast, ovarian and colon cancer. Canadian Medical Association Journal 1996; 154: 813-8.
  8. Daniel Y Dodek. Arthur Dodek. From Hippocrates to facsimile. Protecting patient's confidentiality is more difficult and more important now than ever before. Canadian Medical Association Journal 1997; 156: 847-52.
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