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Confidentiality By Neal S. Meritz, MD

Confidentiality By Neal S. Meritz, MD

Ivividly recall a patient during the mid-80s who was a pilot for Continental Airlines. He confessed to me, that he was seriously abusing alcohol and cocaine. My legal obligation to report this was obvious, but the patient trusted me, and if I acted in the public interest his life would have been ruined. I convinced him to enroll in a program for impaired pilots sponsored by Continental Airlines. I also remember a fourteen-year pregnant girl who had decided to obtain an abortion. She begged me not to tell her parents, especially her father. My responsibility to the law was quite clear, but the patient’s wishes were important too. I was able to persuade her to tell her mother. Ethical issues of confidentiality such as these are commonplace.

It is a mistake to assume that an action that is legally required is therefore ethically required. Certainly, ethical obligations can conflict with legal ones. Confidentiality dilemmas are a common occurrence in the practice of medicine, especially with the use of technology virtually unlimited.

The Hippocratic Oath has been assumed to govern doctor-patient relationships since the 5th Century B.C. It is considered a foundation for medical ethics and the provision relating to confidentiality has remained essentially unaltered for almost 3,000 years. The doctor may not reveal any medical information told to him by the patient to any third party unless the patient provides his consent.

Hippocrates wrote, “Whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken abroad, I will not divulge, as reckoning that all such should be kept secret.”

Making matters more complicated is that a doctor’s duty of confidentiality is not absolute. Often, multiple medical providers are involved, and the need to communicate is inherent in continued treatment. The physician must comply with the law, including the protection of the interests of the public good, such as the investigation and prevention of serious crimes. The right to confidentiality is waived when the patient contemplates a violent act, such as suicide or possible immediate harm to another person. The provider has a “duty to warn” innocent and uninvolved third persons. Doctors must report certain infectious diseases, including sexually transmitted ones, that can be dangerous to the citizenry. The physician has a “duty to protect” if child, elder or dependent adult abuse is suspected. In fact, it is mandated in every state that a professional providing care for a child must notify the proper authorities if the child’s development or safety are endangered.

The universal use of technology has made it practically impossible for Americans to evade ubiquitous tracking. Confidentiality is frequently breached inadvertently or by carelessness. In some instances, unauthorized access to patient information is intentional and criminal. Medical records may be reviewed by a multitude of friendly and unfriendly eyes.

The Health Insurance Portability and Accountability Act (HIPAA) grants the right to access medical records to doctors and medical professionals, healthcare facilities which includes hospitals, labs, nursing homes, and payers such as Medicare and health insurance companies. Technology providers that maintain electronic health records are critically important and of course, whenever it wishes, the government has access. Nonetheless, doctors and medical staff must take great care to preserve the traditions surrounding con-

fidentiality while protecting the public good.

The confidential nature of the patient-doctor relationship is regarded by most physicians as extremely important, and it is taken for granted by virtually all patients. If patients wish for certain knowledge to be kept confidential even if that course of action injures their own interest, they are entitled to that privilege. The vulnerability, voluntary self-exposure and confidence sharing create special obligations to the physician to whom these gestures of intimacy and private self-revelation are made.

Good doctors prevent serious injury to others, even if that means occasionally breaking promises. Placing the moral comfort of clinicians above the well-being of potentially violent patients and their possible victims’ conflicts with the requirements of professional responsibility. Conceivably, perils to society are no greater than those accepted when granting inviolable custody of information to priests, lawyers and bankers. Having appropriate policies in place and limiting access to confidential and sensitive information can greatly reduce the potential for disclosure of that information.

A common-sense approach, together with a working knowledge of the law and the regulatory practices should protect both the security of sensitive information and the physician from breaches of confidentiality. Absolute confidentiality is impossible to achieve, but the teachings of Hippocrates remain applicable in today’s world. References Medical Confidentiality: an intransigent and absolute obligation by Michael H. Kottow, Journal of Medical Ethics 1986, 12, 117-122

The nature of confidentiality by Ian E. Thompson, Journal of Medical Ethics 1979, 5, 57-64

In Defense of Absolute Confidentiality by Kenneth Kipnis Ph.D, AMA Journal of Ethics.org/article/defense-absolute-confidentiality 2003-10

Patient confidentiality: ethical, legal, and regulatory responsibilities, by Howard Marsh and John Reynard BJUI 2009, 104, 164-167

In the Post-Roe World, the Future of Digital Privacy Looks Even Grimmer, by Natasha Singer and Brian X. Chen The New York Times 7/13/2022

Are Medical Records Private?, VeryWell health.com 3/11/2022

Breaches of Confidentiality Aren’t Limited to High Court by Allen Smith J.D., Society for Health Resources and Management shrm.org/resourcesandtools/legal

Neal S. Meritz is a retired Family Practice Physician, Graduated from the University of Texas Medical School at San Antonio in 1972. He is a member of the Bexar County Medical Society.

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