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The Medical Duty of Confidentiality in the Hippocratic Tradition and Jewish Medical Ethics*

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The Medical Duty of Confidentiality in the Hippocratic Tradition and Jewish Medical Ethics* The Medical Duty of Confidentiality in the Hippocratic Tradition and Jewish Medical Ethics* Danuta Mendelson MA5 PhD, LLM School of Law, Deakin University Correspondence to: Dr Danuta Mendelson, School of Law, Deakin University, Toorak Campus, 221 Burwood Highway, Burwood, Vic 3125, Australia. The sources for the Jewish model of the patient-physician relationship, including the duty of confidentiality, have been quite different from those that have shaped the Western approach to medical ethics. In the United States, as in other Western countries, the concept ofthe medical duty of confidentiality has been influenced by the Hippocratic tradition, in particular the Hippocratic Oath, as well as the Christian concept of the confessional. In general, the Western model was based on the premise that all information imparted by the patient to the physician and the latter's assessment of it was exclusive - confidential — to the two parties. In contrast, the professional ethics of Jewish doctors have their sources in the Tor ah, the Talmud and the Halachah. Jewish law regards the duty of medical confidentiality as important but subordinate to the welfare interests ofthe community as a whole. The article examines the historical development ofthe model of the patient-physician relationship in Western medicine and the Jewish model of medical ethics which is grounded in the Halachah as the supreme authority in matters of ethical reasoning and conduct for both patients and attending physicians. people as found in the Five Books of Moses,1 and Introduction ±Q Talmud ("Study" or "Learning"), the legal and Historically, the approaches to the concept of extra-legal commentary to the Scriptures.2 The confidentiality in Western European and in Jewish medical ethics have been quite different. In Western countries, the concept of medical duty of * xhis article is based on a paper titled "Confidentiality and confidentiality has been influenced by the Other Bioethical Concepts in Jewish Medical Ethics", presented Hippocratic tradition, in particular the Hippocratic at me ™Γ(Ι World Congress of Bioethics, 20-24 November 9 6 Έ Oath, the Christian concepr t of the confessional, and lJ J? ' ^ ™™°°> f^T · _ ' ' Torah is known as the Writte nT Lawî.t It is fia fundamentaHa pnfaI tl tenet t 19th century philosophical and legal notions of 0f orthodox theology that "the Torah is from heaven", ie, that it individual autonomy. The Jewish ethical model of was revealed by God in its entirety, cf Yeshayahu Leibowitz. the patient-physician relationship and the Todav>Λβ word Torah is 3^0"8^ to refer to Λβ whole 001P^ professional duties mvolved therein developed tS^TTt ^Ä^Äl'Ä mdependently from the Hippocratic model which (Macmillan Co, Jerusalem, 1971). has shaped Western medical ethics. The sources of 2 Talmud comprises two components: (i) the Mishnah - the Jewish medical ethics are unique to Judaism. They summary of Oral Law in the form of precise formulations of are to be found in the Torah ("Teaching"), the f0^ of 1^ ^ised by subject matter. It was develad v & '' by scholars and rabbis known as the tannaim, between c 30 BCE system Of traditions and customs of the Jewish zná 200 CE; and (ii) the Gemara (referred to as Talmud in a February 1998 227" MENDELSON Torah and the Talmud together provide the central reasoning and conduct for both patients and body of principles of Jewish law and ethics. The attending physicians. rulings based upon the exegesis of these ethical 0 - ., .. , . principles are developed and articulated through the Sources of the Patient-physician Halachah - the Jewish religious law.3 It needs to be relationship m the Hippocratic understood that Judaism regards the Halachah as tradition and in Jewish law not merely a legal system developed to ensure an T11. *„T ,.,. j,A4... c τ u -^u* In the history of Western medicme, the concept orderly functioning of a Jewish community but as ,. , , .J . , ' \ the embodiment ofthe Creator's will. of medical ethics arose m the context ofthe struggle I shall briefly examine the historical ^ Physicia? 1^ *e a^s t0 á"^lsh development of the model of the patient-physician themselves from herbalists, gymnastic trainers relationship in Western medicine which is based ^log^sts, purifiers , reflexologists, purveyors of ¿. „ r *. A 4.U i· charms, mcantations and drugs, and other quacks & upon the concept of autonomy and the primacy of t ' , . , , f ._. \ , , ,Λ_. *if · J· Ά ι 4.- 4.» · 4, 4, · í-u- who also clamied the ability to heal the sick. The the individual patient s interest in secrecy of his or „. Λ ,« , ~ Λ η her communications, and the Jewish model of Hippocratic Oath5 was the first known code of medical ethics which is grounded in the Halachah ethic* fà Pf**™* etiquette Peking ., 4.U -T. · ~ * 4.W ι specifically to the medical profession. The Oath, J as the supreme authority m matters of ethical ^1 . f f \ . _ t „ together with such other writings of the Corpus Hippocraticum6 as On the Physician, Precepts, Aphorisms and On Decorum? formed part of the system of Hippocratic medical deontology (an ethic , , . , ν A . r. A. that stresses duty, looking at die intrinsic rightness technical sense) - the body of legal and ethical commentanes J9 . ° . u u and discussions on the Mishnah. The study of Mishnah was of an act or an mtention rather than the actively pursued between 200 CE and 500 CE by generations of consequences).8 The Oath served a twofold purpose: scholars and jurists (called amoraim) who discussed and (¡) ft instilled certain fundamental ethical analyseJ d the Mishnah with their students. Their questions, „· Λ· ι „ · ,,Λ «Λ«9,„ιΛη,„Λ«ΑβΛηΑη+Λβ .. .. ,. , ,. ^. * *u 4- rprinciple r s mJ young men who swore the Oath at the rulings and dialectical discussions, striving at the true . ° . 10 understanding of things, make up the Talmud. The Mishnah and beginning of their medical training; and Gemara were called the Oral Law while they were being created. The appellation continued even after they were put in writing. The main centres of study were located in Erez, Israel, and in the great academies of Babylon. Hence, there are two 4 V Nutton, "Healers in the Medical Market Place: Towards a distinct variants of the Talmud, the Jerusalem Talmud and the Social History of Graeco-Roman Medicine" in A Wear (ed), Babylonian Talmud. Between the end of the sixth century and Medicine in Society (Cambridge University Press, Cambridge, c 1038 the legal rulings ofthe Babylonian Gaonate (the office of 1992), pp 15-59. the head of the Talmudic academy) were regarded as morally 5 It has not been settled whether Hippocrates himself wrote the binding on all Jews irrespective of their domicile. Afterwards, Oath. Nevertheless, it is clear that the Oath was originally the authority to make Halachic rulings was entrusted into the devised not for the medical profession as a whole but for a hands of great scholars. It is a tenet of Judaism that the ultimate particular group or guild of doctors, either the Asclepiads of Cos purpose ofthe Talmud is to seek the truth. The Halachic rulings or the Pythagoreans. and the practical application of Torah laws are of secondary 6 The Corpus consists of about 60 treatises, the collection of importance. aphorisms, the Oath and the Canon. Some of the treatises and 3 Halachah ("to go", "the path in which Israel goes"). Jewish aphorisms were written by Hippocrates himself (b c 460 BCE). religious law or "Practical law" refers to an accepted decision in However, the Corpus as a whole is the work of a large number Rabbinic law from Talmudic times until today. The word also of medical writers of ancient Greece compiled between 430 and refers to those parts ofthe Talmud that deal with legal matters. 300 BCE, with later interpolations. The Halachah includes all the precepts of Judaism - those laws 7 On the Physician, Precepts and On Decorum were written in involving the commandments concerning the relationship Hellenistic times. between people and God, as well as the laws applicable to 8 The deontological system of medicine as presented in Corpus relationships in human society. All commands and proscriptions Hippocraticum, and in particular the Hippocratic Oath, was of the Halachah are in the nature of religious obligations. The permeated with Pythagorean philosophy and consequently was Torah and the Halachah are in a symbiotic relationship, and not representative of classical Greek philosophy as a whole. form the two inseparable elements of the Jewish legal system. 9 According to the probably apocryphal story of Hagnodice, The term also refers to an accepted decision in Rabbinic law: women and slaves were forbidden to practice surgery in M Elon, Jewish Law (B Auebach and M J Sykes, trans) (Jewish classical Athens: see W Schleiner, Medical Ethics in the Publication Society, Philadelphia, 1994), Vol II, pp 93-94. Renaissance (Georgetown University Press, Washington DC, 228 JOURNAL OF LAW AND MEDICINE - Volume 5 The Medical Duty of Confidentiality in the Hippocratic Tradition and Jewish Medical Ethics (ii) it helped to distinguish physicians from classified it, and predicted its course. In this fashion laymen and charlatans, because the former through the physician took personal responsibility for the their adherence to ethical conduct articulated in the patient, and for the patient's physical welfare. The Oath, saw themselves and were seen as learned and source ofthe physician's ethical conduct was based high-minded professionals rather than merely on the concept of fiducia stemming directly from ignorant tradesmen or petty businessmen of the professional relationship with the patient. The questionable morality.11 patient was expected to disclose information that In classical Greece, medical ethics were may be relevant to the diagnosis, to trust in the associated with the concept of Φρφρόνησιζ physician's professional ability, and to co-operate in (phronesis) - prudence.12 Aristotle regarded ethics observing the prescribed therapeutic regime.
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