Medical Confidentiality: An Analysis of Legal and Ethical Aspects - Report Example

Professional Practice Issues PPI 214 Analytical Paper: Medical Confidentiality: An Analysis of Legal and Ethical Aspects This paper aims to analyze the legal and ethical aspects of the issue of medical confidentiality. An attempt will be made to clarify the concept and the scope of the phenomenon of confidentiality. Such an understanding is aimed at building up a context that will help the reader to go into and understand to good effect the intricacies of the issue at hand. After that the legal position on the issue of medical confidentiality will be looked at. Following that it will be highlighted how the trade-off between medical confidentiality and individuals’ safety has become an issue of debate amongst medico-legal ethicists. Then an attempt will be made to present an approach that incorporates the different issues at hand and to come up with a practical approach to deal with such issues. Understanding Medical Confidentiality: Confidentiality is derived from a Latin word confidere which means intensive trust (“Etymology Dictionary”). One author (Kerridge, Lowe, & McPhee, 2005) has described confidentiality as “restrictions upon private information revealed in confidence where there is an explicit or implicit assumption that the information will not be disclosed to others.” Another author (Harman, 2006) has defined it as “protection against unwanted access to information about a person or a group”. From the outset it can be seen that these definitions are open to much interpretation and reflection. There is an ambiguity as to what level are the restrictions to be placed upon private information and what areas of the information are to be left open to access. There is also an unsolved issue as to whether the access to private information can be gained in case of necessity or not. This ambiguity is one of the causes of differences of views regarding the issue of medical confidentiality as will be seen later on. This ambiguity makes confidentiality a very relative concept. Kerridge and his co-authors confirm to this relativistic nature of the concept of confidentiality when they assert that the importance of confidentiality is culturally and socially determined (Kerridge, Lowe, & McPhee, 2005). In the field of health-care, the relationship between a patient and the doctor or any type of health worker is one in which the person needs to share most of his personal information with the physician. Normally, a patient expects the physician to keep the information as confidential. But sometimes there are situations when the physician faces a dilemma as to whether to disclose the information or to keep it as a secret. Such situation normally arises when disclosing the information becomes a necessity for the health and safety of the patient or some other individual. For example a mentally ill person may tell his psychologist his or her intention to kill someone. Such situations require legal regulations that aim at defining the boundaries which, when crossed, should prompt the physician to disclose any confidential information for the gain of the social order on the whole. The Legal Position: The legal position on the issue of confidentiality is affected by the flexible nature of the concept of confidentiality. The legal position provides for enough room for interpretation to allow for different situations in which the importance and the scope of confidentiality is differently understood and desired. The role of arbitration in such issues is normally given to the health worker so that he or she may come up with judgment, of whether to disclose some confidential information or not, after a careful analysis of the situation. In such cases, giving general absolute laws is not always helpful. The sensitivity of such issues requires for an on-time, on-spot judgment. In the ANMC’s Code of Ethics for Nurses 2008, there is need for the nurses to offer value towards the ethical aspect of information management (“Code of Ethics”, 2008). With regard to confidentiality, ethical management of information is elaborated as not disclosing the personal information of the patient to non-authorized people. But the nurse, according to this code, should also make sure that hiding the knowledge about the patient does not adversely affect the health of the patient or the safety of a third person. Further, in ANMC’s Code of Professional Conduct for Nurses 2008, which is kind of a complementary code to the Code of Ethics, the nurse is allowed to disclose the personal information about the patient with the consent of the patient (“Code of Professional Conduct”, 2008). In a case where earning the consent of the patient is not possible or is not productive the nurse is encouraged to opt for “professional judgment” which has to be a judgment after careful study of a situation and there also has to be the element of sincerity in the nurse’s intentions for the patient and for the society. This summary of the legal position on the issue of medical confidentiality shows the space that is left for interpretation. This allows for a flexible approach to deal with this issue on a case to case basis and making “professional judgment” that is rooted on a methodical realization of the scenario. The Trade-off between Confidentiality and Safety: Differing Views Generally, there is a trade-off sort of a scenario between keeping the personal information of the patient as confidential and the safety of the patient or other individuals in the society. For example, a case may arise (Fry, & Veatch, 2006) that a patient is the carrier of some serious contagious disease. In such a case the nurse has to take a decision to sacrifice one of the two things: the safety of individuals in the society or the patient’s confidentiality. Michael H Kottow has taken a position that is in total support of confidentiality. He asks for keeping confidentiality at the cost of any higher moral values (Kottow, 1986). His point is that confidentiality is the back-bone of the relationship between the patient and the health worker and when this is compromised then there is an irreparable loss to the institution of medical care. He claims that the safety concerns that are talked about are often hypothetical with no real standing and for such hypothetical situations, jeopardizing the integrity of confidential medical relationships should be avoided. One can question Kottow that what is the evidence that the claim that confidential medical relationship is jeopardized by compromising the confidentiality is not as hypothetical as, or even more hypothetical than, the threat to safety of individuals. C. Jones came up with a research paper (C. Jones, 2003) in which he presented the result of his research on patients’ response to their information being shared with others. His survey showed that most of the patients valued confidentiality. They also agreed to the notion that a breach in confidentiality causes harm to the patient-physisian relationship. But when asked whether they would stop sharing their information with the health worker if a breach of confidentiality is done in their case, majority of the patients dismissed such a possibility. This may also be utilized as a rejoinder to the argue of Kottow that the threat of a patient-health worker relation being jeopardized is a concrete one where as the threat to the safety of individuals is a hypothetical one. But however one cannot say for sure that such a survey can be used to make generalizations such that a confidentiality breach does no harm to the patient-health worker relationship. The result may be different in different situations as it is stated earlier that the importance attached with confidentiality is socially and culturally determined. Sabine Michalowski also shows trends of disapproval for confidentiality while saying that when the patient himself or herself gives the physician all the information it is not legally binding on the doctor to maintain that confidentiality (Michalowski, 2003) However normally, physicians do so, duly on a commitment that they would give to their patients in order to earn the confidence in their patients. Some other scholars have taken less extreme views. Bosek and Savage say that confidentiality is necessary to maintain (Bosek, & Savage, 2007). They also acknowledge that at some instances the information might be disclosed for the common good of the society or the patient. Another scholar Susan J. Westrick (Westrick, & Dempski, 2008) also values confidentiality. She presents a list of the situations in which a disclosure is allowed. All these situations boil down to the same two principle requirements: health of the patient and safety of individual(s). A new dimension to the discussion is added by the Helga Kuhse and Peter Singer (Kuhse, & Singer, 2006). They bring in the issue of the effect of modern age on the confidentiality issue. They suggest that in the modern age, there has been an access of information in the medical field. Due to this, health workers have divided the once combined subjects. So, now rather than a single physician a team of physicians, sometimes, participates in the treatment of a single patient. This requires more information sharing and a less strict confidentiality policy. A ‘Hermeneutic’ Approach As discussed earlier, medico-legal matters are very sensitive as more than often people’s lives and sensibilities are at stake. These matters require hermeneutic and interpretative approach to deal with them rather than strict laws. And the legal codes, as was shown earlier, provide enough space for case to case interpretations. The rest that is required is only sincerity of intention on the part of the health workers to serve the patients as well as the general public on the whole. Conclusion To summarize the whole discussion, in this paper the issue of medical confidentiality viz. a viz. law is discussed. It showed that in the field of health care, a physician often faces a dilemma situation of a trade-off between keeping the confidentiality of the patient and securing the safety and health of the patient or some other third person. Pertaining to this trade-off some authors have suggested strict favoring of one or the other of the two phenomena in between which there is the trade-off. Others favored a balanced approach between the two, sometimes favoring one and at other times the other. At the end of the paper the position was stated that what is required is an interpretative approach in such issues such that decision should be taken on case to case basis. The legal code also normally supports such approach as it has much flexibility to be applied differently in different situations. References: 1. Kerride, Ian, Lowe, Michael, & McPhee, Jhon. (2005). Ethics and law for the health professions. Sydney: The Federation Press. 2. Fry,Sara T., & Veatch, Robert M. (2006). Case Studies in nursing ethics. London: Jones and Bartlett Publishers. 3. Bosek, Marcia Sue DeWolf, & Savage, Teresa A. (2007). The Ethical component of nursing education: integrating ethics into clinical experience. Philadelphia, USA: Lippincott Williams and Wilkins. 4. Westrick, Susan J., & Dempski, Katherine. (2008). Essentials of nursing law and ethics, London: Jones and Bartlett Publishers. 5. Michalowski, Sabine. (2003). Medical confidentiality and crime. Aldorshot, England: Ashgate Publishing Company. 6. Kuhse, Helga, & Singer, Peter. (Ed.). (2006). Bioethics: an anthology. Melbourne: Blackwell Publishing. 7. Harman, Laurinda B. (2006). Ethical challenges in the management of health information. London: Jones and Bartlett Publishers. 8. Kottow, Michael H. (1986). Medical confidentiality: an intransigent and absolute obligation. Journal of Medical Ethics, 12(3), 117-122. 9. Jones, C. (2003). The Utilitarian argument for medical confidentiality: a pilot study of patients’ views. Journal of Medical Ethics, 29(6), 348-352. 10. Code of Professional Conduct for Nurses in Australia. (2008). Australian Nursing and Midwifery Council (ANMC). Retrieved (2010, April 3) from 11. Code of Ethics for Nursing in Australia. (2008). Australian Nursing and Midwifery Council (ANMC). Retrieved (2010, April 3) from 12. Online Etymology Dictionary. Retrieved (2010, April 3) from Read More