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.