The Nature of Confidentiality*

Journal of medical ethics, I979, 5, 57-64 J Med Ethics: first published as 10.1136/jme.5.2.57 on 1 June 1979. Downloaded from

The nature of confidentiality*

Ian E Thompson Edinburgh Medical Group Research Project in Medical Ethics and Education. University of Edinburgh, Edinburgh

This paper examines confidentiality and its nature 'I will respect the secrets which are confided in me, and analyses the guidelines laid down by the even after the patient has died.' 2 Hippocratic Oath as well as the British and World This appeal to the '3,ooo year-old tradition of the Medical Associations for maintaining such Hippocratic Oath' is not historically justified, confidentiality between doctor and patient. because the Oath has not been a regular or constant There are exceptions to practically any code of rules basis of medical practice through the ages. We and this is true also for confidentiality. Some of should remember that the oath originated in what these exceptions make it appear that very little is was an esoteric cult, and the obligations of secrecy confidential. were as much concerned with protecting trade The three values implicit in confidentiality secrets and maintaining control over initiates as would seem to be privacy, confidence and secrecy. they were concerned with the patient's interest. Each of these values is discussed and developed in this (It might be remarked in passing that it is always paper. In conclusion, the question is suggested that as much in the practitioner's as the patient's interest maybe in the face of death, doctor and patient to maintain relationships ofconfidentiality, especially need to re-examine the pre-suppositions ofprivacy, in private practice). In fact, the Oath only applied confidence and secrecy on which the confidential to the Hippocratic School and there were other relationship is based. schools in antiquity without such requirements. With the establishment of the mediaeval uni- A question of confidentiality versities and faculties of medicine, and with the important or valuable in attempts by Roger II of Sicily in II 40 and Frederick Why is confidentiality so II in 1224 to control and regulate healing practices professional codes do http://jme.bmj.com/ itself? Most of the available by legislation, new interest in the Oath was shown not answer this question. They assume that the its use self-evident, and do not by certain guilds of physicians. However, value of confidentiality is never became general. It was only during the late seriously examine the grounds for maintaining centuries, when relationships of confidentiality, nor do they provide eighteenth and early nineteenth justification for physicians and surgeons were struggling to achieve adequate moral or philosophical recognition as professionals in their own right, that doing so. code of professional It is customary to point to the Hippocratic Oath the demand for an explicit practice became important. 3 The Hippocratic Oath on September 27, 2021 by guest. Protected copyright. and then to imply that its provisions have governed the trademark of the doctor-patient relationships since the 5th century thus came to be adopted as on Medical Victorian doctor, as physicians and surgeons buried BC. For example, the BMA handbook the hatchet and turned to more subtle forms of Ethics' begins with an appeal to the Oath as a of the paradoxes faced by foundation for medical ethics. In a recent state- internecine conflict. One College of modern medicine and one of the reasons why the ment on confidentiality the Royal Hippocratic Oath has had to be qualified by so Psychiatrists asserts: many other Codes and Declarations, is that modern One of the few provisions of the Hippocratic Oath medicine is built not on secrecy and rites of which has remained unaltered over nearly 3,000 initiation, but on exoteric scientific knowledge, on years is that relating to confidentiality: free publication and open access to the results of 'And whatsoever I shall see or hear in the course of medical research. These developments now compel my profession, as well as outside my profession in us to re-examine the grounds for confidentiality. my intercourse with men, if it be what should not be published abroad, I will never divulge, holding of confidentiality? such things to be holy secrets.' Is there a principle The undertaking is repeated in the Declaration of The I974 BMA handbook on Medical Ethics boldly reaffirms the doctor's obligation to maintain secrecy Geneva: in what appear to be most uncompromising terms: *This paper was first delivered to a conference of the Royal College of Psychiatrists (Scottish Division) in It is a doctor's duty strictly to observe the rule of September 1977. professional secrecy by refraining from disclosing 58 Ian E Thompson J Med Ethics: first published as 10.1136/jme.5.2.57 on 1 June 1979. Downloaded from

voluntarily to any third party, information which lawyers, and in certain circumstances to priests, be he has learned directly or indirectly in his pro- extended to doctors ? fessional relationship with the patient. The death of These are some of the questions which should be the patient does not absolve the doctor from the considered if confidentiality is a matter of strict obligation to maintain secrecy. 4 principle rather than conventional and useful practice. In what follows an attempt is made to However, there immediately follow a list of five clarify some of the values on which it might be kinds of exception: possible to argue that there is a principle at stake The exceptions to the general principle are: when matters of confidentiality arise. a) the patient or his legal adviser gives valid consent Privacy, confidence, and secrecy: three values b) the information is required by law implicit in confidentiality c) the information regarding a patient's health is given in confidence to a relative or other appropriate The World Medical Association resolutions on person, in circumstances where the doctor believes 'Medical Secrecy' and on 'Computers in Medicine' it undesirable on medical grounds to seek the provide us with as near as we can get to a explicit patient's consent statement of the values underlying the concept of d) rarely, the public interest may persuade the confidentiality: doctor that his duty to the community may override Whereas: The privacy of the individual is highly his duty to maintain his patient's confidence; prized in most societies and widely accepted as a e) information may be disclosed for the purposes of civil right; and any medical research project specifically approved Whereas: the confidential nature of the patient- for such exception by the BMA including in- doctor relationship is regarded by most doctors formation on cancer registration. 5 as extremely important and is taken for granted What, one might ask, remains of the patient's right by the patient; and to privacy if the doctor's discretion is so large? If Whereas: there is an increasing tendency towards it were not in the doctor's own interest to maintain an intrusion on medical secrecy; relationships of confidentiality, one wonders if the Therefore be it resolved that the 27th World Medical reaffirmation of the patient's right to privacy would Assembly reaffirm the vital importance of amount to more than pious rhetoric. maintaining medical secrecy not as a privilege

It is significant that except in the case ofthe doctor for the doctor, but to protect the privacy of thehttp://jme.bmj.com/ being required by law to disclose information in individual as the basis for the confidential court, the other caveats offered serve to emphasise relationship between the patient and his doctor; either the autonomy of the medical profession in and ask the United Nations, representing the deciding what is in the common good (in matters people of the world, to give to the medical pro- relating to Public Health, Medical Research and fession the needed help and to show ways for Health Service Planning), or in emphasising the securing this fundamental right for the individual doctor's right to independent clinical judgement, human being. 6 (in situations where he considers it undesirable to This resolution, anticipating as it does the possible on September 27, 2021 by guest. Protected copyright. seek the patient's consent to disclose inform- abuse of data storage and retrieval systems to ation). invade the privacy of individuals and greater state The point at issue is not whether the medical control of the lives of individuals, particularly in profession should be an autonomous self-regulating totalitarian states, enunciates three values implicit body, nor is it a matter of undermining or attacking in confidentiality: the doctor's clinical judgement. The question is whether confidentiality is a matter of principle or a I) Privacy: The right of the individual to privacy. matter of practical medical expediency. Is there 2) Confidence: The necessary ground of the really a 'principle of confidentiality' as the BMA doctor/patient relationship or contract. asserts? If so, why do more doctors not go to 3) Secrecy: The doctor's right to independent prison rather than divulge professional secrets ? Is clinical judgement, and the question of truthfulness a person entitled to privacy as a 'right'? In certain in inter-personal relations. circumstances that right is enforceable in a court of law - in the sense that an injured party can seek PRIVACY: THE SCOPE AND LIMITS OF THE RIGHT TO legal redress for the public disclosure of con- PRIVACY fidential information. However, what kind of right We may all agree that there is an implicit threat to is it, and what weight should it be given in relation individual liberty in modem increasingly centralised to other rights ? Is it an unconditional moral right ? and technocratic societies. These dangers can be Should the privilege of withholding confidential seen in modern technological developments such as information which applies in this country only to computer storage of information, techniques of The nature of confidentiality 59 J Med Ethics: first published as 10.1136/jme.5.2.57 on 1 June 1979. Downloaded from photocopying, and the invasion of personal privacy authority of one party to guide or even direct the by the mass media. However, we may still ask: Is performance of unusual acts (eg getting undressed, there a right to privacy ? allowing examination of intimate parts, disclosing For personal reasons we may feel that privacy is ntimate information.) practical important, but is it a moral right? For 3) The sharing of intimate information in the reasons (Public Health, Research Interests, Health activity of truth-telling, involves the implicit rules Service Planning) medical confidentiality can be of reciprocal confidence, otherwise the process overruled. For political ends the state may decide does to could not get started. Violation of confidence to abrogate an individual's so-called 'right not just involve an infringement of a rule of pro- privacy'. cedure as if it were a game which does not matter The 'right to privacy' might well be regarded by (like admissible cheating in poker). It many as a device of medical/political rhetoric or an crucially if we contradicts the possibility of the 'game' itself. This impractical ideal, but on logical grounds, is why both parties to a broken confidential re- concede the existence of individual human rights feel mortally wounded. of any kind, then it is almost tautologically self- lationship evident that there must be a 'right to privacy' for These factors of initial vulnerability, voluntary without it there would be no private individuals to self-exposure and confidence-sharing create special have or exercise those rights. That the individual obligations in the one to whom these gestures of should be spiritually inviolate, in the sense of being intimacy and private self-revelation are made. We protected from the invasion, violation and abuse of implicitly recognise this when we discourage his privacy would seem to be the necessary pre- importunate people from unburdening themselves supposition of his possession of any of the other to us. They not only demand our attention but individual human rights claimed for him, eg the impose unwelcome obligations on us. right to freedom of speech, freedom of movement Areas of medicine where respect for the 'right to and association, freedom of worship etc. We must, privacy' would appear to be particularly important I think, grant the existence of a right to privacy on are psychiatry and reproductive medicine. In formal grounds once we concede the existence of psychiatry the issue of privacy is important because personal rights in any form. Since it is not our of the peculiar vulnerability of the mentally ill, purpose to dispute that, the question becomes one because of the probing nature of psychiatric of interpreting the scope and limits of the right to investigations of people's psycho-sexual behaviour privacy. and problems of social adjustment, and because of

The moral situation in which patient and doctor the considerable stigma still associated with mental http://jme.bmj.com/ encounter one another is one which gives to privacy illness. The information elicited in the course of a special value, confidential privacy is inherent in psychiatric treatment makes the patient extremely the situation as a moral pre-supposition for at least vulnerable to both psychological manipulation and three reasons: criminal blackmail (if the information falls into the in the duress wrong hands). In reproductive medicine, i) The patient approaches the doctor under treatment of gynaecological disorders, male in- of fear, pain or need. This means that the patient is fertility and venereal disease, the issue of privacy is inherently vulnerable and disadvantaged in relation important in relation to the prevailing attitudes and on September 27, 2021 by guest. Protected copyright. to the doctor. The 'contract' between them is not a While these mis- feelings of shame about sexual matters. contract as between equals (hence it maybe may be culture-dependent and culture-specific, leading to speak as some sociologists do of patients of shame are a nevertheless taboos and feelings as 'consumers'). The patient is a patient (ie common to all societies in relation to different sufferer), a person who may well be conforming to things for different people, and the right to privacy the sick role, but whose disease has forced him to remains important in relation to these feelings. accept the limitations and obligations of that role not by The moral The stigma of illness is just imposed as well as its possible advantages. society nor just by the medical profession, but more responsibility of the doctor in the first instance is 7 his fundamnentally, as Bonhoeffer has suggested by to respect the vulnerability of the 'patient'; shame, ie an awareness of injury, lack of health, privacy in this sense. wholeness or spiritual dis-ease: 2) The fact that the doctor is a member of a con- The peculiar fact that we lower our eyes when a sulting and not just scholarly profession, means stranger's eye meets our gaze is not a sign of that 'patients' come to him in situations which are remorse for a fault, but a sign of shame which, of their very nature private, in the consulting room when it knows that it is seen, is reminded of some- or the relative privacy possible in the hospital ward. thing it lacks, namely, the lost wholeness of life, The contract to enter into the secrecy of a private its own nakedness.... consultation implies obligations binding really on both parties, especially where the relationship is one The dialectic of concealment and exposure is only of co-operation based on the acceptance of the a sign of shame. Yet shame is not overcome by it; J Med Ethics: first published as 10.1136/jme.5.2.57 on 1 June 1979. Downloaded from 6o Ian E Thompson it is rather confirmed by it. Shame can only be that the patient's state of health is a private rather overcome when the original unity is restored. than a public matter. In both medicine and religion, there tends to be a Another reviewer whom he quotes put it more tension between ideals of openness and attempts to dramatically: defend the need for privacy. On the one hand a figure such as Churchill cannot have any medicine purports to be scientific in the sense that privacy. He belongs to the world, alive or dead, and it is based on public and verifiable facts, exoteric anything related to him, especially his health knowledge and free exchange of research findings. problems, are of universal interest. On the other hand medicine, as a consulting pro- fession recognises in clinical relationships with The fact is that privacy is a relative state and one of patients their vulnerability and need for privacy. the things that public figures sacrifice for the In religion the more the stress has been placed on dubious benefits of political popularity or stardom the sinful and alienated nature of man, the more is their right to privacy. The choice of a career in the need for privacy in spiritual matters has been public office means the necessary exposure of your emphasised. On the other hand the Christian ideal life to public scrutiny, and while decency and of an open society, where men will not be afraid to decorum, and the laws of libel may set some limits 'live in the light' or have their deeds 'shouted from to public exposure, the public interest must in many the rooftops', is based on an expectation of a cases take precedence over the right to privacy redeemed society. Both medicine and religion face where public security and the demands of justice painful dilemmas where these values conflict. require it. In wider society, to the extent that we value justice, democratic government and scientific CONFIDENCE: THE NECESSARY GROUND OF THE progress, privacy cannot be an absolute or un- PATIENT/DOCTOR RELATIONSHIP OR CONTRACT conditional right; but, to the extent that we recognise The second value implicit in confidentiality is the presence in society and its institutions of forces confidence itself. This is not just a desirable con- which are destructive of justice, democracy and commitant of medical practice, but an essential scientific progress, we must also take account of the moral pre-requisite of the contractual relationship importance of the right to privacy to protect vul- into which patient and doctor enter. nerable people. The limits to the right to privacy At the practical level, as Balint9 suggests, 'the are illustrated in the controversy over Lord Moran's efficacy of the drug: Doctor' depends upon it. A disclosures, in his biography of Churchill, of great deal of the efficacy of medicine depends onhttp://jme.bmj.com/ details of the strokes and other illnesses which he 'the placebo effect', the ability of the doctor to win suffered while in office. the confidence and trust of the patient and to Robitscher8 points to the potentially dangerous maintain it often for many years. consequences of impaired judgement resulting from However, this confidence (cum-fides) is not just Churchill's illnesses. He not only questions the desirable for its therapeutic benefits, it is an implied condemnation of Lord Moran expressed in essential pre-supposition of the contract of co- a contemporary editorial in the Lancet and the operation in mutual truthfulness into which doctor on September 27, 2021 by guest. Protected copyright. BMA resolution that the 'death of a patient does and patient enter. Whereas privacy is primarily in not absolve the doctor from his obligation of the patient's interest, confidence is in the mutual secrecy', but asks whether the physicians in interest of the contracting parties. It is the ex- question did not have a public duty to make this pression of willingness to enter into the con- information known when he was alive and possibly tractual relationship, of the patient's willingness to to put pressure on their illustrious patient to resign. submit to the doctor's authority and of the doctor's He suggests two tests concerning disclosure: willingness to attend to the patient's needs to the i) Was something disclosed to the confidant in best of his ability. The relationship is not estab- the course of and as an important part of securing lished once and for all, and, as Balint has suggested, help or treatment which would not have been dis- the doctor and patient are involved in an on-going closed except in the process of gaining help ? negotiation of the limits of their confidential re- 2) Was the information, if divulged, 'fitting to be lationship and the limits of truthfulness or openness spoken'? in that relationship through a series of symptoms offered by the patient and responses by the doctor. He concludes: Or, as Friedson 10 says:

The physician is not only a doctor to his patient, The patient, for instance, is likely to want more but he also fulfils a public role, he gives reassurance information than the doctor is willing to give him- to the public concerning the health of its elected more precise prognoses, for example, and more officials. I submit that under such circumstances precise instructions. Just as the doctor struggles to there can be justifiable exceptions to the principle find ways of withholding some kinds of information, The nature of confidentiality 6i J Med Ethics: first published as 10.1136/jme.5.2.57 on 1 June 1979. Downloaded from so will the patient be struggling to find ways of a) provide the patient with better and more gaining access to, or inferring such information. reliable information, Similarly, just as the doctor has no alternative but b) lead to better patient compliance with medical to handle his cases conventionally (which is to say, advice, soundly), so the patient will be struggling to deter- c) serve as an educational tool and, mine whether or not he is the exception to the d) encourage the patient to accept more responsi- conventional rules. bility for his own health. In the conflict/co-operation underlying doctor- Further they argue that this would mean better patient interaction, mutual confidence is a necessary continuity in patient-care in an increasingly mobile prerequisite. Distrust on either side is enough to population, enable the patient to exercise wider bring a relationship to an abrupt end. Insofar as freedom in the choice of medical practitioners and confidence in this situation is essential to the consultants, and improve physician-patient re- functioning of the relationship, implicit respect for lations by making the relationship dependent on mutual confidences is implied. However, the more rational negotiation of contracts. nature, form and limits of that confidentiality may The advantages to physicians of such an arrange- not be specified or explicit and perhaps ought to be ment would be, they argue, that it would have the negotiated more explicitly. effect of promoting more regular and formal, It is generally maintained, especially by doctors though decentralised peer review, encourage doctors and in the pious or indignant statements issued by to keep up to date and learn from one another. They their professional associations, that confidentiality also claim this would lead to greater career satis- is maintained primarily in the patient's interest. faction, as such decentralised peer review would This assumption needs to be questioned if we are provide recognition for excellence in the practice of to get beneath the surface of the public rhetoric medicine rather than merely emphasise the prestige and consider more seriously the practical value and of sophisticated research and high technology moral significance of confidentiality. The secret of medicine as the present system tends to do. It the doctor's power over his patient lies precisely in would also work to support the autonomy of the his possession of what is often vital confidential physician and militate against the tendency to information (at least in the patient's view). Medical centralised bureaucracy in health-care systems: pieties about confidentiality might be more con- Adopting the Proposal would reduce fears about vincing if doctors were more candid about the physicianaccountability and quality. Self-regulating, part played in the 'management' of patients by the decentralised peer review would provide better http://jme.bmj.com/ control and selective disclosure of information. It individual assessments than centralised review, is also evident in the inter-collegial and inter- since reviewers could correlate the patient himself professional dealings of the doctor that the selective with his record, instead of merely checking its disclosure of confidential information is used by the internal consistency. Both inpatient and outpatient doctor both to assert and maintain control over records would be used, and information would be 'his' patients. The making of referrals is obviously generated precisely at the points of usage - patients a game requiring great skill or art, both when it and colleague physicians. On the other hand, some on September 27, 2021 by guest. Protected copyright. involves defining limits to responsibility for functions of centralised peer review, such as individual patients, and when it involves 'passing standard setting, would not be pre-empted. 1 1 the buck'. The cruder forms of this exploitation of confidental information to maintain control of The situation in modern health-care, whether in patients are perhaps more obvious in a situation of the USA or the UK is one of increasing involvement fee-paying private medicine, but they operate none of other professionals and para-professionals and the less in the NHS too. changing patterns of inter-professional relation- To put the issue into perspective it is perhaps ships. Whether in the technologically sophisticated necessary to stop and ask: whose confidences are areas of hospital medicine, involving many special- they, anyway? In a sense the question has a simple ties, or in the primary medical care-team, there is, answer: they are the patient's confidences and that a situation of increasingly extended confidence. is why the doctor has no moral right to use con- Whether we go along with this and accept the fidential information without the consent of the fact that in the Welfare State with a National patient or in the patient's interest. Health Service there is an inevitable need for the A radical expression of this point of view, and a dilution of confidentiality, in the interests of serious attempt to discuss and analyse its implications efficient patient-care, systematic medical research, for medical practice, is the important article by effective public health programmes and more Shenkin and Warner entitled 'Giving the patient rational health service planning; or whether we opt his medical record: a proposal to improve the for a system which re-inforces patients's rights and system'. They argue that giving the patient his physician autonomy, say by giving patients their medical record would: medical records, or reinforcing medical privilege in J Med Ethics: first published as 10.1136/jme.5.2.57 on 1 June 1979. Downloaded from 62 Ian E Thompson relation to confidential information, involves not because the social worker has to act as a go-between just the moral issue of patients' rights versus public and advocate on behalf of the client in so many interest, but, more fundamentally, choices about situations (as between client and local authority, what kind of society we wish to live in. It may well hospital, police, etc.) and as an agent of the Courts be too, that what is at issue in the present debate or the hospital in other situations, it has proved about confidentiality concerns the very nature of necessary for him to negotiate very carefully the medicine as a profession: Is medicine to remain a bounds of confidentiality in his dealings with consulting profession based on confidentiality, clients and on behalf of clients. patient trust and medical autonomy and responsi- Between the extremes of paternalistic and bility ?; or is the doctor to become a paid function- authoritarian medicine, on the one hand, where the ary in an impersonal institution where industrial doctor decides on the control and appropriate action is compatible with offering medical services disclosure of informnation; and the liberal alternative to the public ? of giving the patient his medical record and treating The case of Dr R J D Browne illustrates one side the patient's right to decide on the limits of con- of the problem. He was charged with improperly fidentiality as sacrosanct, there stands what I would disclosing to the father of a girl then aged i6 that call the social work model. This model has several she had been prescribed an oral contraceptive by advantages: it is flexible and adaptable to the needs Birmingham Brook Advisory Centre. In a BMJ of different people and patients with different kinds editorial 12 the dismissal of the charges against Dr of complaints; it is based on a more open and Browne by the General Medical Council Dis- democratic procedure; it allows due respect for the ciplinary Comnmittee was hailed as triumphant patient's rights but also leaves scope for the dis- reaffirmation of: cretion and independent judgement of the doctor. While it does expose the patient to the risk of the principles of medical practice that the doctor undue pressure the demand that the limits of has an obligation to act in the way he judges to be confidentiality should be explicitly determined in the best interests of his patient. within the confidential relationship itself rather than Given the fact that Dr Browne thought it medically by external formal rules means that the process inadvisable for his patient to be given the particular ought to be self-regulating and self-correcting, oral contraceptive in question, it is argued that he subject only to the demands of accountability before was acting properly to inform the girl's father. the courts and the laws of libel. It means that the In a later issue of the BMJ1 3 a senior barrister doctor or other professional becomes not simply has argued that the BMJ editorial's argument does the patient's representative but also society'shttp://jme.bmj.com/ not hold, that legally Dr Browne had no right to representative in representing to the patient the violate his patient's confidence. He accuses the demands of the common good - where the dis- medical profession in effect of closing ranks over closure of confidential infornmation may be of the defence of one of their colleagues and the benefit to others besides himself. sacrosanct principle of the independence of the All the authorities seem to agree that the doctor's clinical judgement. traditional safeguards against breaches of con-

There is a public dimension to confidentiality fidentiality which operated fairly successfully in on September 27, 2021 by guest. Protected copyright. too, the question of the public confidence in the the patient/family-practitioner situation, do not profession. The crisis of identity through which work adequately in modern hospitals and in- the profession is passing as well as a possible crisis creasingly socialised medicine. It is arguable of confidence in the medical profession expressed therefore that the mutual interests of patient and by increasingly strident public criticism of doctors, doctor could best be served by more open and argues the need for the profession to renegotiate its explicit discussion of the limits of confidentiality contract with the public if confidence is to be (the determination of what bits are confidential and restored. The BMA in its Handbook on Medical which are not) so that both know where they stand, Ethics, tends to be rather arrogant about the and by an extension to doctors of the privilege ethical standards and traditions of medicine and which applies to lawyers when the issue is the rather dismissive of social work and other pro- disclosure of proscribed bits of information. It is fessions. However, the present situation in medicine not enough to speculate that patients would object with regard to confidentiality might well be to the disclosure of particular bits of information. illuminated by consideration of the example of The experience of social workers suggests that there social work. 14 is relatively little that clients regard as strictly Because the status of social work as a profession is confidential. Most of what is required for efficient still disputed and uncertain and because it is health service planning, medical research, etc. can notoriously difficult to set limits to the social be obtained, it is suggested, without too much worker's task and responsibilities, it has proved difficulty; but when confidentiality is important it is necessary in practice for social workers to negotiate crucially important, and should be recognised as fairly explicit contracts with their clients. Likewise, such. The vital issue is to determine when it is J Med Ethics: first published as 10.1136/jme.5.2.57 on 1 June 1979. Downloaded from The nature of confidentiality 63 really important, and can only be breached with to take into account, but it does not illustrate how grave consequences for patient/doctor trust and secrecy might be regarded as a value in its own with damaging consequences for the patient. right. Part of the difficulty is that we tend to invest secrecy in general with a negative value, even SECRECY: THE DOCTOR'S RIGHT TO INDEPENDENT implying that it is synonymous with deceit. This is CLINICAL JUDGEMENT because we tend to apply the paradigm of scientific In the introduction it was suggested that secrecy truth inappropriately to personal relationships, and should be included among the values implicit in uncritically accept the rationalist and liberal ideal confidentiality. It may well be asked, however, of openness as the norm of behaviour for pro- whether secrecy can be regarded as an end in itself fessional relationships. Science is concerned with or merely as a means to an end. In earlier times the abstract and impersonal relationships of facts when medical and psychiatric knowledge was more and propositions. Medicine, insofar as it is a human insecure, and uncertain of its scientific base, science is concerned with the degrees of truthfulness members of the profession relied more explicitly on possible in different kinds of personal relationships. secrecy. In fact, it might be suggested that the more Secrecy and truthfulness stand in a different uncertainty, the more secrecy tends to surround relationship from truth and falsity, truth and error that area of medicine, not only to protect the or truth and deceit. While truth and falsity apply doctor but to protect the patient from his ignorance. to statements, truth and error to man's practical However, it is arguable that there is and will judgements and actions, truthfulness and deceit remain a perennial tension in medicine between apply to the subtle inter-actions of persons in the esoteric 'cultic' aspect of medicine and the confidential relationships. In a brilliant essay on public exoteric and scientific aspect, between the 'What is meant by "telling the truth" ?' Bonhoeffer 1 5 saving, redemptive aspects of medicine and those suggests that 'it is only the cynic who claims "to aspects concerned with knowledge, prediction and speak the truth" at all times and in all places to all control of the disorders of human life. On the one men in the same way' and that in reality such an hand, the doctor's secrets, both his knowledge of attitude is destructive of the living truth between the mysteries of medicine and his knowledge of the men: intimacies of his patients' lives, is the secret of his power. On the other hand, it is also the basis of his He wounds shame, desecrates mystery, breaks claim to autonomy in the exercise of his clinical confidence, betrays the community in which he judgement, knowledge and expertise, and familiarity lives, and laughs arrogantly at the devastation he has with the needs of his patient. The aura of secrecy wrought and at the human weakness which 'cannot http://jme.bmj.com/ also serves to create patient dependence and com- bear the truth'. pliance, defines the boundaries of the sick role and Secrecy is not the enemy of truthfulness but the creates the need for appropriate magic, whether in companion and guardian of truthfulness as we the form of physical procedures or drugs. However explore the possibilities for truthfulness in a given it also conveys a residual feeling of suspicion situation. Secrecy from this point of view has a which can erupt into an 'anti-clerical' backlash value because it has an intimate relationship with against the whole medical establishment. the determination ofthe truth in each unique human on September 27, 2021 by guest. Protected copyright. Medical science in its public and exoteric char- situation and the expression of truthfulness in acter has a double effect on public attitudes. On the personal relationships: one hand, more general education of the public in scientific and medical matters creates pressure From the moment in our lives at which we learn to towards the democratisation of health-care, sug- speak we are taught that what we say must be true ... gests the possible liberation of patients from It is clear that in the first place it is our parents who doctor-dependence and creates the demand for a regulate our relation to themselves by this demand new contract between the medical profession and for truthfulness; consequently, in the sense in the public based on respect for patients' rights. On which our parents intend it, this demand applies the other hand, the claim ofmedicine to be scientific, strictly only within the family circle. It is also to be to be able to discover and explain the causes of noted that the relation which is expressed in this disease, to predict and control their consequences, demand cannot simply be reversed. The truthful- creates the spiral ofrising expectations that medicine ness of a child towards his parents is essentially will be able to cure all humanity's ills. Both different from that of the parents towards their tendencies unfortunately often lead to increasing child. The life of the small child lies open before public scepticism and disillusionment and to an the parents, and what the child says should reveal increase in 'doctor bashing'. The disappointment to them everything that is hidden and secret, but of public hopes in psychiatry seem to be a par- in the converse relationship this cannot possibly be ticular case in point. the case. Consequently, in the matter of truthful- The dialectic of secrecy and openness in medicine ness, the parents' claim on the child is different is obviously part of the practical situation we have from the child's claim on the parents. J Med Ethics: first published as 10.1136/jme.5.2.57 on 1 June 1979. Downloaded from 64 Ian E Thompson

From this it emerges already that 'telling thetruth' secrecy on which the confidential relation is based. means something different according to the par- Is the intense difficulty and anxiety experienced by ticular situation in which one stands. Account must doctors in communicating bad prognoses related to be taken of one's relationships at each particular their own unwillingness to penetrate the secrets of time. The question must be asked whether and in death with the dying in the kind of truthfulness what way a man is entitled to demand truthful which involves both fidelity to the demands of this speech of others. Speech between parents and new and unique situation and responsibility to the children is, in the nature of the case, different patient as person faced with a unique and un- from speech between man and wife, between repeatable life crisis ? friends, between teacher and pupil, government and subject, friend and foe, and in each case the truth which this is also different. speech conveys References Telling the truth is then a matter of learning dis- 'British Medical Association (I974). Medical Ethics. crimination. It is a matter of sensitive appreciation London, BMA House, Tavistock Square, pp I-2,,13. of the demands of real situations and fidelity to the 2British journal of Psychiatry (October I976), News and people involved in it. The example Bonhoeffer uses Notes: Confidentiality: A Report to Council, Royal of the child forced into telling lies to protect his College of Psychiatrists. family when subject to interrogation by the police 3Friedson, E (I970/75). Profession of Medicine, New or a school teacher, is, he insists not a case of York. Dodd Mead & Company. Chapter i. deceit, but the necessary use of secrecy to preserve 4British Medical Association (i974). MedicalEthics, p I3. the demands of truthfulness in situations of "Ibid, p 13. different kinds. We have here the paradox of the 6Ibid, pp I7-I8. Cf. British Medical Journal (27 Jan more truthful than the bare I973), pp 2I3-2I6, Medical Research Council: lie which is ultimately Responsibility in the Use of Medical Information truth, because it attempts to safeguard the con- inResearch. fidentiality of truth specific to each situation. If 7Bonhoeffer, D (I955). Ethics, London. SCM Press. truthfulness in personal relationships is expressed in pp 145-I47. terms of 'fidelity to the demands of the situation' 8Robitscher, J B (I967). Public Life and Private In- and 'responsibility to other people', then secrecy is formation, Journal of the American Medical intimately involved as a value implicit in truthful- Association, Oct 30,202, 5. ness and deceit is in fact very rare and perhaps best 9Balint, M (I957/74). The Doctor, his Patient and the Pitman Medical. pp I I-i8. exemplified by the cynic who is determined to 'tell Illness. London. http://jme.bmj.com/ the and be damned'. °Friedson, E (1970/75). Op. cit. p 322. truth "Shenkin, B N and Warner, D C (1973). Giving the Finally, there is a common kind of situation in Patient his Medical Record: A Proposal to Improve which the rules of ordinary confidentiality may be the System, New England Journal of Medicine, called in question, the crisis of the confidential 27 Sept, pp 688-692. Cf. American Psychiatric relationship involved in the death or suicide of the Association (I972). Position Statement on the Need patient. Death highlights the limits of the doctor's for Preserving Confidentiality of Medical Records confidence and perhaps underlines for him the in Any National Health Care System, American fragmentariness of his knowledge and the failure of Journal ofPsychiatry, I28, I0 April. on September 27, 2021 by guest. Protected copyright. his art, especially in the case of premature death. "British Medical Journal (Editorial) (20 March 1971), However, death also represents something meta- A Case ofConfidence. "British Medical_Journal (23 June 1973). New Horizons physical which points to the ultimate boundaries of in Medical Ethics. human experience and raises questions about the "British Association of Social Workers (I97I). Con- significance of human life and the meing of fidentiality in Social Work, London. Discussion the human condition. As such, it may be that in the Paper No i, BASW Publications, The Oxford face of death, doctor and patient need to re-examine House, Derbyshire Street, E2 6HG. the pre-suppositions of privacy, confidence and 5Bonhoeffer, D (I955), Op. cit. pp 326-334.