Medical Law and American Code of Medical Ethics - Essay Example

Medical Law The institute of medicine, over a long time has been heavily guarded by the institution of law. Of that the main component that still regulates the doctor patient relationship is the matter of confidentiality- the trust and mutual respect the doctor and patient carry for each other. This dates back to the time of Hippocrates, i.e. to the time of ancient Greece, where as an oath he administered the duty of a practitioner to maintain confidentiality in medical profession. It goes as “Whatever, in connection with my professional practice, or not in connection with it, I see or hear in the live of men, which ought not be spoken of abroad, I will not divulge as reckoning that all such should be kept secret." (Harry Lesser& Zelda Pickup, 1990). Thus the respect for patient confidentiality could be described as a core ethical value that goes back to the origins of the medical profession – at least 2300 years – from the time of Hippocrates, which reaffirms that as a practitioner, ‘What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself holding such things shameful to be spoken about‘. Though today, most medical schools no longer require students to take the traditional Oath, yet the concept of maintaining confidentiality of patient’s health information as secret is generally accepted as a fundamental ethical principle underpinning the doctor/patient relationship. (Edward Berg mark and Marcie Parker, 2003) The Medical law governing this though, may vary a little the duties and charges they expect are the same. In this essay we try to analysis the Medical law governing the GP around the matters of confidentiality of patient’s information. This essay tries out to see the prevailing law in US, UK and European countries, providing weight age to the UK medical law surrounding the issue of confidentiality of information. American code of medical ethics: American Medical Association’s Code of Medical Ethics, when dealing with the area of confidentiality says that “Physician shall respect the rights of patients – and shall safeguard patient confidences within the constraints of the law." (Preamble Part IV, June 2001). This confidentiality is stressed in Medical law to encourage the patients to uninhibitingly, divulge the information to the practitioner, thus fulfilling the purpose of the relationship of the practitioner and the patient. In US, violating the confidences is prone to welcome a lawsuit that could be argued around the common ground of invasion of privacy, with the breach of the confidentiality in the relationship between doctor and patient, could be filed for intentional and negligent infliction of practitioner on the patient , and also causing emotional distress, medical malpractice, defamation, libel, slander, and even breach of express or implied contract theories.( Virginia Tech Review Panel,2007) Thus according to the US norms, the patient confidentiality is rooted in the more general ethical norm, expects the physicians to maintain the secrecy and the law gives full power to the patient to determine when it can be disclosed, thus the confidentiality rules are based on the professional ethical norm of nonmaleficence- the Physicians duty to promote the well-being of their patients. Here also the law favors exemption of disclosing the information if there would be much benefit to the individual patient, or specifically when potential harm could be averted for third party etc, but does strongly condemns disclosing confidential information to benefit third parties, but still doesn’t give proper guideline as when the breach is lawfully correct, leaving it to the doctors prudence. Thus again there is a controversy, if the mortal ethic of Doctor is to be upheld absolute confidentiality has to be maintained, with the information to be upheld in any situation. Here again the AMA Code of Medical Ethics explains that the confidential patient information may be disclosed "(w) hen a patient threatens to inflict serious physical harm to another person or to him or herself and there is a reasonable probability that the patient may carry out the threat." In such circumstances it encourages the physicians to disclose the information to the state or federal law or court order, the Code, then again it is expected as his duty to notify the patient and only provide minimal required information. Thus the American Medical law has laid careful guidance in the area of maintaining confidentiality of information. (American Medical Association Council on Ethical and Judicial Affairs, 2007) UK and European code of medical ethics: When analyzed the UK law it could be seen that , the fundamental right to respect for private life and the legal obligation of confidentiality are firm tenets of UK law that takes great care in upholding and protecting the dignity, autonomy and reputation of citizens, guarding them against the unwanted intrusion, and preserve their trust in the medical system. Like the US the UK also from time immemorial has laid laws to maintain the confidentiality of information. With the new legislation introduced in 2000 it flows down to paper, computer and all electronic records. Thus in UK ethics also, confidentiality is considered to be an inherent needed quality of practitioner. Thus it is expected of a practitioner to respect the confidentiality that is much needed for the patient to share the private and sensitive information with the practitioner. The importance given for confidentiality of information can be best understood by the UK laws that are laid legally. For example, The Human Rights Act (1998) allows individuals to approach court on the breach of confidence or to bring an action against a public authority on the basis of the Convention’s right to privacy under Article 8. The Data Protection Act laid in 1998, offers some regulation and sight into the rules governing the gives effect in UK law to Handling and collecting the personal data. In that the DPA 98 is deals with the statuary law concerning the Clinical Information Management. This requires the physician to collect the personal data fairly, i.e. a fair processing of the information. (BMA, 2005) The meaning of confidential patient information: This denotes the duty of General Practitioner to keep the information confided to him by the patient, with in himself. The NHS considers the confidentiality of information as a legal obligation, professional code of conduct and as employment conduct, breach of which may invite both disciplinary and lawful action. This flows down from tar view that patient entrust the GP and aglow them to gather the sensitive information in regard to their health, as a part of seeking treatment. The GP is expected to maintain confidentiality both in legal and ethical sense and expected not to reveal it as to identify a patient6 by others without their consent. Again the NHS permits the sharing of information, when genuinely it might benefit the patient in his health improvement. In that case it becomes extremely important that the patient is well informed about the sharing. In this ground sharing between technical and care taker groups and for clinical audit is permitted. Again when it comes to sharing of information for three cause of society, as clinical research, health service management and clinical audit, the GP is expected to apply the Caldicott principle to decide on what to do after acquiring the patients consent. The Caldicott principle expects the GP to justify the cause and avoid patient identifiable information, and in compliance toi the law. In all these cases of exemption, the patient alone has the right to nod and has a equal right to object that would obviously imply a inadequate medical care provided to them. To avoid this circumstance the UK medical law allows GP to share necessary information ended to safeguard the patient, though the patient might not understand it. But if it is not concerned with beneficial health care for the patient, it is prohibited. (Confidentiality, NHS code of Practice,2003) Confidentiality model: To make things easier the UK medical community has come out with a confidentiality model that has four main requirements as to protect, inform, provide choice, and the fourth improve. Protect here denotes – to look after patient information; Inform – ensure that patients are aware of how the information is being used; Provide choice- to given opportunity to patient to decide whether the information is to be shared or not and ; finally, Improve – always looking out for better ways to protect, inform and provide chance. The confidentiality Model (Confidentiality, NHS code of Practice,2003) Using and sharing patient’s information: As described earlier this area of practice by GP is bound both on legal and ethical grounds. In UK ground the law applied in this area is less clear and is of minimum expedition than the ethical grounds. First when described about the Legal considerations, there are some Statuary provisions that guide information disclosed. The common law of confidentiality quotes that “Information confided should not be used or disclosed further, except as originally understood by the confider, or with their subsequent permission. Whilst judgments have established that confidentiality can be breached ‘in the public interest’, these have centered on case-by-case consideration of exceptional circumstances”. Thus under this law the GP is allowed to breach information to support detection, investigation and punishment of serious crimes and offense and also in case of Public goad of serious health incident etc. in all the cases of exemption, the GP is expected to act after getting proper prior permission from the relevant manger and director. If possible the law expects the GP to discuss and informed the concerned patient. Here comes in the DPA (1998), Human rights act (HRA) 1998 etc. (Davies, 1990) Disclosure of information: Thus the exceptions where the patients information can be disclosed with the Patients consent utmost is Sharing information in the health care team or with others providing care that would benefit the patient Disclosing information for clinical audit with the consent of the patient Disclosures where express consent must be sought as in research, epidemiology in case of pandemic findings. Disclosure in connection with judicial or other statutory proceedings that ism required by law, court and statuary bodies Disclosures in the public interest to prevent a public disaster Disclosures to protect the patient or others In all the cases if possible the consent of the patient is mandatory. Here again there is a clause that, information provided in confidence should not be used or disclosed in a form that might identify a patient, without his/her consent. The GMC Guidance in this regard is very clean stating that: “Disclosure of information about patients for purposes such as epidemiology, public health safety, or the administration of health services, or for the use in education and training, clinical or medical audit, or research, is unlikely to have personal consequences for the patient. In these circumstances you should still obtain patients’ expressed consent to use of identifiable data or arrange for members of the healthcare team to anonymise records”. (Veronica English et al., 2000) Informed consent Informed consent could be described as the consent given by the patient after giving a full and comprehensive explanation of the procedure by the GP. It is however clear that for the consent to be valid, it is expected that the patient would be competent in making the necessary decisions. Though there are ambiguities that the patient may not understand the full impact of disease and need of sharing of information, it becomes the duty of GP to make the patient understand. It should be understood that the patient has the right to command the confidentiality and privacy. Armed with the information, the patient has to be given full rights to discuss the information and GP is expected to provide honest information. Botyh verbal and written consent is to be obtained. Any trespassing and breach of confidence without proper consent is considered to be an offense. (Kipnis, 2006) Threats to Confidentiality The threats to confidentiality is expected and experienced in both the sides of provider of care – GP and takers- patients. For patients, these threats include the no congruence of views regarding the nature and scope of confidentiality on the part of physicians and therapists vs. patients and the public. Here it is very common that when there is a breach of confidentiality on the GP side very fewer patients know it and their legal rights. In the GP side it is usually the personal ethics Vs professional ethics conflict. When analyzed from the side of society, it is usually the threat of communicable disease, suicide or homicide threat etc. on the law end, threats occur where there are inconsistent, incomplete legal and ethical guidelines as well as the conflicting needs of medical and law enforcement agencies. For researchers, the threats to confidentiality include query over data ownership and the consent to retrieve and use data added to the threat of security of the storage of data. (Frank Holloway, 2004) The other Side of Confidentiality There is also a "dark side" to confidentiality. Though it is natural to think that confidentiality is a positive terms, as a thing that might be of good for patients, at times it alone becomes a factor that acts to conceal and cover up the professional misconduct and incompetence. The confidentiality may also render the patient with stereotype treatment, poor quality and inappropriate care, unscientific and judgmental care. Also the confidentiality may discourage the GP from his moral binding to help law and may betray the third party, as insurance company or to a sexual partner about the patient having AIDS etc. (McClelland and V Thomas, 2002) Conclusion: Thus it becomes utmost responsibility of doctor to decide on when to hold the confidentiality and when to breach it holding the best interest of the patient and then that of society and third party. Thus it is purely the justification and prudence of doctor to analyze each case and act accordingly. References: 1. Harry Lesser, Zelda Pickup, 1990, Law, Ethics, and Confidentiality Journal of Law and Society, Vol. 17, No. 1, Legal and Moral Dilemmas in Modern Medicine (Spring, 1990), pp. 17-28. 2. Edward Bergmark,., and Marcie Parker, 2003, Confidentiality in Health Care, http://www.optumanswers.com/research/articles/confidential.shtml. 3. Virginia Tech Review Panel. http://www.vtreviewpanel.org. Accessed June 5, 2007. 4. American Medical Association Council on Ethical and Judicial Affairs. Opinion E-5.05, "Confidentiality." http://www.ama-assn.org/ama/pub/category/8353.html. Accessed July 18, 2007. 5. Confidentiality as part of a bigger picture, A discussion paper from the BMA,May 2005,http://www.bma.org.uk/ap.nsf/Content/ConfidentialityBiggerPicture. 6. Confidentiality, NHS code of Practice,2003, http://www.doh.gov.uk/ipu/confiden 7. Davies. Medical Law (2nd Ed) Blackstone Press Ltd, 1990 8. Veronica English, Lucy Heath, Gillian Romano-Critchley, Ann Sommerville , Ethics briefings , Med Ethics 2000; 26:215-216 9. Kipnis K. A defense of unqualified medical confidentiality. Am J Bioethics. 2006;6:7–18 10. Frank Holloway, 2004, Confidentiality: threats and limits , Psychiatry ,Volume 3, Issue 3, 1 March 2004, Pages 11-13 . 11. McClelland and V Thomas, Confidentiality and security of clinical information in mental health practice, Adv Psychiatr Treat 8 (2002), pp. 291–296. Read More