MAIN TOPIC Confidentiality DAVID BENATAR Confidentiality is an important principle in med- PhD ical ethics, but one that may be overriden in Associate Professor some circumstances. Philosophy Department Autonomy University of Cape Town Autonomous beings are those that are capable of controlling their own lives. They David Benatar works are beings that can deliberate and, in the mainly in moral phil- osophy and related absence of any external restrictions, act on areas. His interests their deliberations. Healthy adult humans are both theoretical typically are, in this sense, autonomous (to and applied. In addi- varying degrees). Given that they are tion to lecturing in the autonomous in this way, they have an Philosophy Department at the interest in having this autonomy respected. University of Cape Confidentiality protects the autonomy of Town, where he is patients by allowing them to control infor- based, he also teach- mation about themselves. This is particu- es Bioethics in UCT’s larly important given the often sensitive Health Sciences and personal nature of the information Faculty. that medical practitioners can acquire, and the damaging ways in which such informa- tion could be used. Unlike some other principles in contempo- Privacy rary bioethics, such as principles of Although privacy, like confidentiality, can (patient) autonomy and (doctors’) truth- foster a person’s autonomy, people also telling, the principle of confidentiality has tend to value privacy independently of been recognised since ancient times to be concerns about autonomy. Feelings of essential to the professional ethics of med- shame and vulnerability lead people to ical practitioners. As important as this value their privacy. Confidentiality obvi- principle is, however, it has limits. There ously fosters privacy by preventing the are some occasions when it is outweighed spread of privileged information that by competing moral considerations. would violate privacy. Determining when this is so is often diffi- cult. There is no simple formula that can Promise-keeping be applied to establish when confidential- Given that doctors undertake to preserve ity ought to be breached. However, if we confidentiality, the importance of confi- understand the values on which the princi- dentiality is also based on the value of ple of confidentiality is based, we are bet- promise-keeping. Sometimes the promise ter equipped to assess whether the princi- to keep information in confidence is ple ought to be sacrificed in a given cir- explicit, but it is often implicit. Patients cumstance. know that doctors have duties of confiden- tiality and have often taken oaths to affirm those duties. Patients consult doctors in UNDERLYING VALUES this knowledge and often without securing Confidentiality’s value is not intrinsic but explicit promises from the doctors directly rather instrumental. That is to say, the to them. The professional norms of pre- value of confidentiality is derivative from serving confidentiality are so widespread the other values it advances. We can distin- that patients can reasonably assume their guish four such values: autonomy, privacy, doctors to have implicitly promised to promise-keeping and utility (or welfare). keep confidence. CME January 2003 Vol.21 No.1 11 MAIN TOPIC Utility • the prevention of harm to the One way in which confidentiality Confidentiality in medicine greatly very person to whom the duty of dilemmas can become difficult is if enhances utility by leading to confidentiality is owed. it is unclear whether the harm is improved health care, both of the sufficiently weighty. Although a sig- We might call the former ‘harm to individual patient and of society. If nificant threat to life may defeat others’ and the latter ‘harm to the patients had no assurance that doc- the other values, it is less clear patient’. tors would respect confidentiality, whether more remote threats of they would be more reluctant to this kind, or significant threats of consult doctors. The upshot of this lesser harms, are strong enough. would be that many more people The dilemmas of A second and more common way would suffer and even die than is preserving confi- in which confidentiality dilemmas the case where people feel more dentiality arise in become vexing is seen if we exam- comfortable consulting doctors. An ine the fourth underlying value — individual’s health is therefore those situations in utility.Where confidentiality does improved. Public health is also which there is no not conflict with the prevention of improved, both by iterating the harm, all considerations of utility individual benefits and by avoiding consent to disclose. usually support the preserving of the exponential ill-effects of un- confidentiality. In cases of conflict, diagnosed contagious diseases. the usual utility of keeping confi- Harm to others dence (outlined above) must be The others may be one or many. MORAL LIMITS balanced against the disutility of For example, preserving confiden- One obvious condition that would doing so — the harm to others. In tiality about a patient’s HIV-posi- justify divulging confidential infor- other words, we are caught on the tive status may pose a threat to one mation is the consent of the person horns of a utility dilemma — sacri- other person (the spouse) if the to whom the duty of confidentiality fice the long-term utility of keeping patient is in a faithful monoga- is owed. Where such consent is confidentiality for the short-term mous relationship, or many other given, private information is con- gain of preventing harm, or pre- people (various potential sexual veyed but the duty of confidential- serve the long-term gain at the cost partners) if the patient is promis- ity is not breached. This is because of not preventing the more imme- cuous. the patient, in giving the consent, diate harm. The fact is that most of waives the right to confidentiality. In such situations, the patient’s the long-term benefits can be pre- Typically, the consent to convey interest in autonomy, privacy and served if breaches are sufficiently private medical information is lim- promise-keeping obviously persists. few. However, the erosion of these ited: the patient grants a medical However, the moral weight of these benefits is incremental with each practitioner permission to provide interests is limited. The value of breach, and their loss can thus specific information to a specific one person’s autonomy, for exam- creep up imperceptibly. person or group of people. ple, is bounded by the value of Harm to the patient others’ autonomy. My right to lead The dilemmas of preserving confi- Sometimes the person whom one my life as I please cannot extend to dentiality arise in those situations seeks to protect from harm is the limiting your autonomy (beyond in which there is no consent to dis- very patient to whom the duty of the limitation on your freedom to close. These dilemmas, at least in confidentiality is owed. Consider, interfere with me). Privacy and their most difficult forms, arise for example, a patient who does promise-keeping too have their where the principle of confidentiali- not want his diagnosis made limits. Thus, if any one of these ty conflicts with a principle of harm known to a spouse or parent even three values — autonomy, privacy prevention. It is helpful to consider though the spouse’s or parent’s or promise-keeping — were pitted separately two categories of harm knowledge of the diagnosis could against serious harm to others, the prevention: greatly benefit the patient. Or con- prevention of harm would certainly sider a patient whom a doctor prevail. Although they have greater • the prevention of harm to people finds to have been abused, but who strength together, they would still other than the person to whom does not want the doctor to make be outweighed by sufficiently seri- the duty of confidentiality is this known to other people, even ous harms to others. owed though such a disclosure could 12 CME January 2003 Vol.21 No.1 MAIN TOPIC prevent more such abuse. Where promise-keeping is defeated by the provide advance warning to the the patient’s autonomy is intact, prevention of harm to others. patient (or patient’s guardian overriding that autonomy in the where the patient is non- name of benefiting the patient is an HOW TO BREACH autonomous) of one’s plan to unwarranted form of paternalism break confidentiality.Very often and is unjustified (although Because breaching confidentiality one will find that at this point, a attempting to persuade the patient (without consent) always has some patient will decide that given the about the importance of disclosure cost, it should be avoided if possi- doctor’s intent, the patient would would be appropriate). ble. Thus the preferred first course rather disclose the information of action should be to persuade the himself, perhaps with the assis- patient (or patient’s guardian) of tance of the doctor. Where the Sometimes the per- the moral importance of disclosing patient does not relent, he or she the relevant information. Some son whom one will at least have the opportunity to medical practitioners are reluctant minimise the costs to himself in seeks to protect to bring moral pressure to bear on other ways. from harm is the patients to consent to disclosure. Such concern is sometimes well- very patient to founded where disclosure is the THREATS TO whom the duty of greater of the evils. However, CONFIDENTIALITY where it has been determined that confidentiality is Although the real dilemmas of breaching confidentiality may be whether to breach confidentiality owed. required, it is obviously preferable often interest doctors, there are to obtain patient consent for the highly suspect assaults on confi- disclosure. At least in such circum- dentiality that receive very little Autonomous agents have the stances moral pressure in eliciting attention.