Confidentiality and the Duty to Warn

PLATFORM * TRIBUNE

Confidentiality and the duty to warn

Irwin Kleinman, MD, FRCPC

tive therapy or obtain therapy. As a consequence, more Resume: Ancree fermement dans les codes de deon- violent assaults could occur. tologie et le droit, la confidentialite est un aspect fon- Another approach to the rule of confidentiality is damental de la pratique de la medecine et le pilier through the principle of autonomy, in which patients are d'une relation therapeutique fondee sur la confiance. viewed as autonomous people who take responsibility 11 se peut a l'occasion qu'un medecin doive enfrein- for and make decisions about their health care. By exten- dre les regles de la confidentialite. Les jugements sion, patients control access to information about them- rendus par les tribunaux aux Etats-Unis dans le cas selves. Our respect for the individual underlies the Tarasoff, ont etabli le devoir de proteger, qui peut principle of autonomy; this respect obliges physicians comporter ou non un avertissement 'a la victime not to reveal information about patients without their eventuelle ou 'a la police. La ou l'on fait erreur, toute- consent. fois, c'est lorsqu'on croit que les tribunaux ont im- The American Medical Association (AMA) and the pose le devoir de prevenir. L'AMC devrait publier un CMA address confidentiality in their codes of ethics. enonce de politique pour clarifier les limites du de- The AMA code states that the physician shall "safeguard voir de prevenir. Entre-temps, les medecins devraient patient confidences within the constraints of the law."2 reflechir a la question et tirer leurs propres conclu- The CMA code states that an ethical physician "will sions. keep in confidence information derived from a patient or from a colleague regarding a patient, and divulge it only C fonfidentiality is fundamental to medical practice. with permission of the patient except when otherwise re- The physician is obliged to keep what patients quired by law."3 Both codes clearly state that confiden- tell them private, and this forms the foundation tiality is an ethical imperative that must be followed. of a trusting therapeutic relationship. The principle of Only a legal obligation would override this imperative. confidentiality is firmly established in codes of ethics The principle of confidentiality expressed in codes and the law. Occasionally, however, it may be necessary of ethics has been extended into law. For example, the for physicians to breach confidentiality. Health Disciplines Act, which regulates the medical pro- In Western codes of medical ethics the principle of fession in Ontario, states that professional misconduct confidentiality first appeared in the Hippocratic oath' "means giving information regarding a patient's con- and can be justified by either the consequences it pro- dition or any professional services performed for a pa- duces or the principle it expresses. From a consequen- tient to any person other than the patient without the tialist perspective it could be argued that if con- consent of the patient unless required to do so by law."4 fidentiality did not exist, information that could ad- According to this act, breaking confidentiality, except versely affect the patient might be revealed to third par- when required by law, could result in disciplinary action ties. Without assurance of confidentiality patients might by the College of Physicians and Surgeons of Ontario. hesitate to reveal information that could be necessary for Directives that could oblige physicians to reveal in- treatment, which would adversely affect their health. formation without a patient's consent are legislated or Furthermore, dangerous patients might not disclose in- based on precedent. The most notable of these are laws formation, such as violent fantasies, necessary for effec- that involve the reporting of suspected child abuse, pa-

Dr. Kleinman is chairman of the Ethics Committee and is in the Department ofPsychiatry, Mount Sinai Hospital, and is a member of the Centre for Bioethics, University of Toronto, Toronto, Ont.

Reprint requests to: Dr. Irwin Kleinman, Department ofPsychiatry, Mount Sinai Hospital, 600 University Ave., Toronto, ON MSG IX5

DECEMBER 15, 1993 CAN MED ASSOC J 1993; 149 (12) 1783 tients who suffer from designated diseases and those fornia Supreme Court agreed to rehear the case in a deemed unfit to drive, reports to workers' compensation rarely employed option.9 boards and the completion of certificates under the Vital The rehearing established a duty to protect that may Statistics Act.' Examples of common law decisions or may not include a warning to the potential victim or (precedents) that define the limits of confidentiality are the police:7 "Once a therapist does in fact determine, or from Tarasoff v. Regents of the University of California6' under applicable professional standards reasonably (hereafter referred to as Tarasoff). should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise Case example reasonable care to protect the foreseeable victim of that danger." Furthermore, "the therapist's obligations to his I presented the following case at a recent seminar. patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, A 42-year-old man asked to be admitted to hospital so that he and even then that he do so discretely, and in a fashion would not kill his wife, because earlier that day he had found that would preserve the privacy of his patient to the her in bed with another man. This evoked such intense feel- fullest extent compatible with the prevention of the ings of jealousy and rage and thoughts of homicide that he threatened danger."7 went to a hospital emergency department as a preventive mea- In terms of Tarasoff there was no duty to warn in sure. After a complete evaluation a voluntary admission was arranged. The attending resident wondered, however, whether my example. Because the man was admitted to hospital he had a duty to warn the patient's wife. he posed no significant danger to others. If the patient then asked to be discharged he could have been detained Eight of the nine second-year psychiatry residents with a civil commitment procedure. Reasonable care had at the seminar considered that the patient's wife should already been taken to protect the foreseeable victim. Any have been notified, even though the patient was admitted disclosure to the wife, therefore, would be contrary to to hospital. Although the hospital admission effectively the Tarasoff decision on maintaining confidentiality to protected the wife, most of the residents felt that the the fullest extent possible while preventing danger.7 If Tarasoff decisions`7 imposed a "duty to warn." The Can- the attending resident had been unable to protect the adian Psychiatric Association's position on confidential- man's wife with either a voluntary or involuntary admis- ity and dangerousness in the doctor-patient relationship sion to hospital the resident would have been obliged to is ambiguous on this issue: "If it is felt that a potential inform either the wife of her risk or the relevant authori- victim should be informed, hospitalization of the patient ties, such as the police.'` should become a serious condition if the patient fulfils the criteria outlined in the relevant Provincial Mental The Wenden decision Health Act.... A refusal by the patient to allow a breach of confidentiality should not deter the giving of a warn- Although a judgement in a US court does not im- ing to the potential victim if this is indicated in the phys- pose a legal duty upon a Canadian physician it could ician's judgement."8 reasonably be expected that the Canadian courts would apply the reasoning of the Tarasoff decisions." This oc- The Tarasoff decisions curred recently in the case of Wenden v. Trikha, Royal Alexandra Hospital and Yaltho'' (hereafter referred to as To appreciate better the duty to warn one must ex- Wenden). amine the Tarasoff decisions.67 In Tarasoff the treating Mr. Trikha, a voluntarily admitted psychiatric pa- psychologist had reason to believe that his patient, Mr. tient, eloped from the psychiatric ward of the Royal Poddar, would kill Ms. Tarasoff, a university student. Alexandra Hospital, Edmonton, drove a car at high The therapist notified the campus police, who picked up speeds through numerous traffic lights and crashed into Poddar but then released him into his own custody be- Ms. Wenden's car. Wendon had numerous residual med- cause he appeared rational. The therapist's supervisor ical deficits and eventually lost custody of her three chil- said that no further action should be taken to detain Pod- dren because of her inability to care for them properly.'2 dar. Two months later Poddar murdered Tarasoff. The court concluded that a psychiatrist, aware that The first of the two court decisions on this matter his patient represented a serious danger to the well-being established a duty to warn,6 the court concluding that of a third party, owed a duty of care to take reasonable "the public policy favouring protection of the confiden- steps to protect such a person or people.'2 In Wenden, tial character of the patient-psychotherapist communica- however, the court found that there was no way to fore- tion must yield in instances in which disclosure is see that Trikha would pose a threat to himself or others essential to avert danger to others. The protective privi- and therefore concluded that there was no basis for the lege ends where the public peril begins." Because of per- psychiatrist to impose greater restraints on him. sistent lobbying by the American Psychiatric In applying the Wenden decision to my example Association and the importance of the issues, the Cali- one can see that reasonable steps had been taken to pro-

1784 CAN MED ASSOCJ 1993; 149(12) LE 15 DECEMBRE 1993 tect the man's wife. The hospital admission obviated the in my example. Yet, eight out of nine second-year psy- need to breach confidentiality. chiatry residents felt that a duty to warn superseded the patient's right to confidentiality, an issue well estab- Ethical considerations lished in codes of ethics and the law. This is disconcert- ing and raises concerns about how widespread the Ethical considerations have increasingly entered misconception about the duty to warn is within the med- into clinical decision making in medicine. Although ical profession. there may not have been a legal duty to inform the man's An authoritative body such as the CMA should ex- wife in my example, there may have been an ethical duty amine the conflict between confidentiality and duties to to do so. Therefore, it is necessary to examine confiden- third parties and issue a statement clarifying the duty to tiality and the duty to warn as they pertain to my exam- protect. Such a policy would clarify that warnings ple in terms of the principles of autonomy, beneficence should be given only if one is unable to protect third par- and nonmaleficence. ties adequately. This approach would likely have signif- The principle of patient autonomy is central to icant impact on clinical practice, given its authoritative medical decision making','34 and reflects a fundamental nature. In the interim, clinicians should reflect on these respect for the individual. By extension, the patient de- issues and reach their own conclusions. termines who should have access to his or her medical information. Autonomy is considered a primafacie prin- References ciple; it should be binding unless it conflicts with an equal or stronger duty' such as the prevention of serious 1. Beauchamp TL, Childress JF: Principles of Biomedical Ethics, harm to a third party. Once the man in my example was 3rd ed, Oxford Univ Pr, New York, 1989 admitted to hospital, however, the risk of serious harm to 2. American Psychiatric Association: Opinions of the Ethics Com- his wife was removed. Although the man might have es- mittee on the Principles of Medical Ethics: with Annotations Es- caped from hospital, thus threatening his wife, this argu- pecially Applicable to Psychiatry, APA, Washington, 1989: 3 ment would not justify overriding his autonomy on admission. 3. Canadian Medical Association: Code of Ethics, CMA, Ottawa, According to the principle of beneficence, one 1990 ought to do or promote good or prevent evil or harm.' In my example the harm one would prevent would be seri- 4. Health Disciplines Act (Medicine), SOR 88-448, 1988, p. 13 ous injury to the wife. However, since there was little 5. Evans KG: A Medico-Legal Handbook for Canadian Physicians, risk of harm once the man was admitted to hospital it is Canadian Medical Protective Association, Ottawa, 1990: 23 unclear what benefit would have been gained by notify- ing his wife. 6. Tarasoff v. Regents of the University of California, 118 Cal Rptr, The principle of nonmaleficence establishes the 129 (Cal 1974) moral imperative not to inflict evil or harm.' A breach of 7. Tarasoff v. Regents of the University of California, Reargued 17 confidentiality may have shattered the man's trust in the Cal3d 425.55 1, p2 d334, 131 (Cal Rptr 1976), 33 medical profession, further strained an already difficult relationship with his wife and perhaps disadvantaged 8. Shane F: Confidentiality and dangerousness in the doctor-patient him in future dealings with his wife. These harms would relationship. Can J Psychiatry 1985; 30: 293-296 occur because the man sought the assistance of the med- ical profession in dealing with impulses that concerned 9. Mills MJ, Sullivan G, Eth S: Protecting third parties: a decade af- him. ter Tarasoff. Am J Psychiatry 1987; 144: 68-74 To complete the ethical analysis of this problem it 10. Hoffman B: Disclosure of medical information without consent: is necessary to weigh the minimal benefit that would be the patient's right to confidentiality. Health Law Can 1992; 13: achieved by notifying the man's wife, given the admis- 156-159 sion to hospital, against the possible harms to the man from breached confidentiality and the lack of justifica- 11. Truscott D, Crook KH: Tarasoffin the Canadian context: Wenden tion for overriding autonomy. This leads to the con- and the duty to protect. Can J Psychiatry 1993; 38: 84-89 clusion that although the principles of autonomy, benefi- 12. Wenden v. Trikha, Royal Alexandra Hospital and Yaltho (1991), cence and nonmaleficence support a duty to protect, in 116 AR (2d) 81 my example they do not support a duty to warn. 13. Pellegrino ED, Thomasma DC: For the Patient's Good: the Conclusion Restoration of Beneficence in Health Care, Oxford U Pr, New York, 1988 Both an ethical analysis and a careful examination 14. Jonsen AR, Siegler M, Winslade WJ: Clinical Ethics: a Practical of the Tarasoff and Wenden precedents lead to the con- Approach to Ethical Decisions in Clinical Medicine, 2nd ed, clusion that confidentiality should have been maintained Macmillan, New York, 1986

DECEMBER 15, 1993 CAN MED ASSOC J 1993; 149 (12) 1785