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Doctor-Patient Confidentiality: How Do We Define It and When Should We Waive It?
Jessica Wilen Berg is Professor of Law and Bioethics, Case Western Reserve University's School of Law and at the Department of Bioethics, Case Western Reserve School of Medicine, Cleveland, OH.
What is Confidentiality and When is It Not Protected?
Many people are familiar with the idea of confidentiality as an integral part of the professional code of ethics in the legal, medical, and mental health fields. What you tell your doctor, lawyer, or psychologist is supposedly protected information that cannot be shared with others, no matter how intimate, gory, or revealing it may be.
In the medical field, confidentiality even dates back to the Hippocratic Oath, but there are many updated versions of confidentiality, defined by various medical associations around the word. Recent years have muddied our understanding of medical confidentiality. Developments in technology have challenged our traditional understanding of "personal" information and privacy. As a result, officials have tried to develop privacy protections that apply to different settings and circumstances.
Why Confidentiality May Be WaivedAs important as patient confidentiality is, there are certain times that most people would agree that medical (doctor-patient) confidentiality needs to be waived.(1)(2)(3)(4) For instance, parents need to have access to their kids’ medical information, which makes sense to most people, since children don’t have the capacity to manage their own medical situations themselves. If a patient wishes (and signs a waiver), his or her doctor can share medical information with the patient’s family or friends. And if a patient is declared legally "incompetent," then his or her caretaker can be legally authorized to have access to medical information that would otherwise be confidential.
Other situations, however, are not so clear-cut. For example, when, if at all, should the state have access to people’s medical information? If divulging personal health information to the state protects or serves public health, is it ok? Is sharing information with other doctors or researchers acceptable if it is for research purposes that ultimately advance public health?
Whether or not to disclose personal medical information is often said to be a balancing act between the benefits of keeping confidentiality and the benefits of waiving it. The U.S. Supreme Court has stated that "disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice." It’s just a matter of figuring out under what circumstances disclosures should occur.
So there are a couple of questions that are up for debate. The first is how to define confidentiality, since there are many different types, with different objectives at heart. The second issue, which stems from the first, is under what circumstances confidentiality should be broken. How do we weigh the pros and cons of sharing personal health information with others in the medical community and with the government? This article will explore how confidentiality should be conceived and if and when it should be broken.