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Conﬁdentiality is among the oldest and most widely acknowledged rules of bioethics dating back to Pythagoras and Hippocrates. The rule requires those who possess privileged information not to share it with other people, even if they need it, without the permission of the patient or the conﬁder. The necessity for conﬁdentiality and privacy is justiﬁed by respect for autonomy and the right to privacy. Likewise, the concept of autonomy and informed consent inﬂuences the understanding and practice of conﬁdentiality as exempliﬁed by the difference in the practice of conﬁdentiality in Western bioethics on one hand and the practice in African and Asian bioethics on the other. Although the obligation of conﬁdentiality is very important, it is not absolute.
Every profession requires some form of conﬁdentiality rules. For instance, in business people are obligated to safeguard research and development information of their products. They do not divulge such information in public lest their competitors use them to improve their own products or to outwit them. Even journalists are sometimes required not to divulge the names of their sources of information or their informants who wish to remain anonymous. Besides the simple reason of anonymity, the security of the person(s) concerned is also a purpose for conﬁdentiality in journalism. The code of conﬁdentiality is one of the oldest and the most widespread rules in healthcare and biomedical ethics alike.
This discourse is structured as follows: the introduction, which is followed by the history and deﬁnition of conﬁdentiality and the necessity and the justiﬁcation for conﬁdentiality. Then there are three other sections: situations that might call for breaches of conﬁdentiality, conﬁdentiality versus vulnerable group, as well as conﬁdentiality in African and Asian society. Finally, there is a brief conclusion.
Origin And Definition OF Confidentiality
The origin of and the need for conﬁdentiality and privacy go as far back as the fourth century BC to the Pythagoreans’ pronouncements which were later assimilated into the Hippocratic code. Hippocrates notes, “What I may see or hear in the course of the treatment or even outside of the treatment in regard to life of men, which on no account one must spread abroad, I will keep to myself holding such things shameful to be spoken about” (Hippocratic Oath, from DeGrazia and Brand-Ballard 2011, p. 70). Besides the Hippocrates’ time there are later discussions regarding conﬁdentiality and privacy around the nineteenth (19th) century. For example, there is a remarkable publication in the Harvard Law Review in 1890 by Samuel Warren and Louis Brandeis titled “The Right to Privacy.” However, the prominent and contemporary discourses as well as literature on conﬁdentiality and privacy date primarily to the 1960s and the 1970s. Around this time abound broad concerns and discourses regarding ethical issues which eventually led to the emergence of bioethics and professional ethics (Reamer 2012).
What Is Confidentiality?
A look at the distinction between conﬁdentiality and privacy makes for a clearer grasp of the meaning of conﬁdentiality. Privacy is when other people cannot, without permission, gain access to sensitive and intimate information about a person, especially information that one does not wish to share with other people or information one wishes to share with only a selected group of people. A typical example would be a patient’s medical information. In other words, one is said to have privacy when one’s realm of intimate or sensitive information is not invaded by other people. However, conﬁdentiality concerns those who possess legitimate or privileged access to private and sensitive information. It requires them not to divulge such privileged or legitimate information without permission from the relevant person or persons (DeGrazia and Brand-Ballard 2011).
Conﬁdentiality is, therefore, the nondisclosure of privileged information to an unauthorized person without the consent of the conﬁder. To receive proper diagnosis and therapy, an individual or patient often needs to disclose private and sensitive information about oneself to the healthcare professional/s. The information is vital to the work of the healthcare professional. Because such information is sensitive, private, and gained in conﬁdence, the healthcare professional is obligated not to divulge it to other people who have no permission to access it without the prior consent of the conﬁder or the patient. Therefore, patients expect that their private and sensitive information will be safeguarded by the healthcare professional. Hence, conﬁdentiality is central to trust between healthcare professionals and patients.
Unlike the Hippocratic conﬁdentiality, there is a stricter understanding and practice of conﬁdentiality in some other codes today. In this case, the principle of conﬁdentiality is seen to be beyond beneﬁcence and involves ﬁdelity to commitment. Patient-healthcare professional (ﬁduciary) relationship is ﬁdelity or commitment to the patient. This ﬁdelity includes the duty to keep the patient’s medical information conﬁdential, and this is beyond the Hippocratic code/concept. A physician may not break the conﬁdentiality against the wishes of the patient even if it were judged to be of some beneﬁt to the patient. For example, the post-Browne case British Medical Association (BMA) code. In 1970, Dr. Browne, a British physician, told the father of his adolescent patient that the daughter was taking birth control medication. Following that, Dr. Browne was accused of breaching the conﬁdentiality of his patient. He was tried before the General Medical Council. The council argued that the Hippocratic Oath, the British Medical Association, and the American Medical Association all recognized the duty of the doctors to protect the well-being of their patients. Thus, Dr. Browne was acquitted of all charges. As a result of this ruling, the British Medical Association Ethical Committee proposed the review of its code of ethics. This led to the removal of the paternalistic exception clause to its conﬁdentiality rule (Veatch 2012b). Therefore, the post-Browne case British Medical Association (BMA) code sees it as the duty of the physician to endeavor to persuade the patient to permit the sharing of information with a third party who requires it. Should the patient refuse the request, that refusal must be respected (Central Ethics Committee 1971, cited by Veatch 2012a). To disclose conﬁdential information one should consider the following factors as enunciated by Wendy Rosers and Annette Braunack-Mayer. One needs to seek the consent of the patient wherever possible in order to disclose the information. Where possible and when unidentiﬁable data can serve, the information should be anonymized. Finally, the minimum required information is to be disclosed (Rosers and Braunack-Mayer 2004). These requirements make for careful observance of conﬁdentiality.
Necessity And Justification For Confidentiality
There are a number of reasons why conﬁdentiality is necessary. Such reasons include utility for patients, the medical system, and the larger society and respect for autonomy and privacy rights. And as stated above, the utility of conﬁdentiality to the patients concerns both the usage of healthcare and the quality of care they receive. To a large extent, both the usage of healthcare and the quality of care one receives are dependent on the conﬁdentiality rule being observed by the healthcare professional. Many patients will be very wary of using the healthcare, others may refuse entirely, if their private and sensitive information are constantly made public knowledge rather than safeguarded. Still, others will be very reluctant to share personal information that might be relevant to proper diagnoses and treatment with their physicians. Thus, the quality of medical care such patients will receive will be compromised, and they will obtain low-quality care. For a society that highly cherishes privacy and individuality, a healthcare system that does not assure conﬁdentiality will hardly be attractive to patients. It will not provide a suitable climate for openness required for proper patient-healthcare professional relationship. Because conﬁdentiality is central to the trust relation between patient and healthcare professional, an environment where the preservation of conﬁdentiality is taken for granted is necessary in order to create an environment of trust required for proper healthcare delivery. It would seem that for the most part such an environment works for the good of patients, healthcare system, and the society. For example, in the USA the Department of Health and Human Services (HHS) enacted the Privacy Rule under Health Insurance Portability and Accountability Act (HIPAA) in 2003. The aim was to safeguard patients’ identiﬁable health information provided to healthcare providers, hospitals, and health plans. Studies have shown that patients withhold information if they have doubts or reservations regarding conﬁdentiality in a facility or about the healthcare professionals. For instance, because of concerns about conﬁdentiality, some HIV patients seeking medical care have withheld vital information from clinicians. Some of these patients did not trust the healthcare professionals to keep their information conﬁdential (Petchey et al. 2000; Morse et al. 1991; Sankars et al. 2003). Therefore, the consequences of divulging conﬁdential information without permission make patients reluctant in conﬁding in their therapists, thus, denying the healthcare professionals important relevant information to proper diagnose and treat their patients. This eventually leads to the erosion of trust in the healthcare system.
Furthermore, the justiﬁcations for the obligation of conﬁdentiality can be said to be twofold: the consequence-based arguments and the arguments from autonomy and privacy rights (CF. Beauchamp and Childress 2013).
The consequence-based arguments point to the consequences of breaking the conﬁdentiality rule. Such consequences include the impacts on the medical system, the patient or the conﬁder, the third party, and the society. A typical example is the Tarasoff case (see Tarasoff v. the Regent of University of California, 1976). A patient informed his psychotherapist of his intention to kill a female student, Titiana Tarasoff, who had shunned his advances. While the psychotherapist notiﬁed the police, she did not warn the third party, Titiana. The patient murdered Titiana as soon as she returned from her trip. Her family sued the psychotherapist arguing that if he had warned their daughter of the danger, she would have escaped the murder. The consequence of holding a near-absolute conﬁdentiality rule was the death of Titiana, the third party. The court, therefore, ruled that in danger of a third party conﬁdentiality rule can be breached. This exception applies also when society is in danger, such as from infectious disease. In such a situation conﬁdentiality can be breached by sharing the patient’s information about the infectious disease with the Disease Control Ofﬁce. The consequence-based arguments admit of no absolute conﬁdentiality rule. Likewise the arguments from autonomy and privacy rights admit of no absolute rule or rights of conﬁdentiality.
The arguments from autonomy and privacy rights justify rights and rules of conﬁdentiality arising from the principles of respect for autonomy and right to privacy. Respect for autonomy is the acknowledgment of patients’ rights for privacy that patients should be able to keep some part of them or their lives secret if they so desire. Likewise, it is an acknowledgement of the patients’ right to decide to refuse or accept treatment, and it ensures that patients are not treated without their consent. Both autonomy and privacy rights partly claim and support rules and rights of conﬁdentiality (Beauchamp and Childress 2013).
Situations That Might Call For Breaches Of Confidentiality
Ordinarily, patients consent to disclosure of information for the purposes of referrals, insurance, and reimbursement purposes and when information is required for workplace injury compensation cases. In the Tarasoff v. the Regent of University of California case, the ruling created an exception to conﬁdentiality by requiring disclosure of conﬁdential information when a third party is in danger. Other exceptions also exist, at least in the USA. For instance, in cases of gunshot wounds, child abuse, and communicable diseases such as sexually transmitted disease, conﬁdential information can be divulged but with as little harm to the patient or the conﬁder as possible. Similarly, a healthcare professional is required to disclose or share a patient’s information, when necessary, without the patient’s consent when reporting births and deaths as well as the underlying cause of the person’s death and when there exists concerns regarding a patient’s ﬁtness to be issued a driver’s license (Rosers and Braunack-Mayer 2004). When it is required by law to report information, the dilemma about whether or not to breach conﬁdentiality is minimized. The assumption is that the legislature has carried out the balancing of competing interests, in which case, the public interest or the law outweighs that of conﬁdentiality.
Other situations that might call for breaches of conﬁdentiality include situations wherein it is unsure if patients are capable of deciding for themselves. Instances of such situations can be found in cases of adolescents’ contraception and pregnancies and alcohol and drug abuse. For example, in the American medical drama television series, “Private Practice,” Dr. Addison Montgomery was approached by Maya, the teenage daughter of Drs. Sam and Naomi Bennett, on behalf of her teenage friend for assistance in contraceptives and abortion. Maya requested Dr. Montgomery to keep the information from her parents who are Dr. Montgomery’s colleagues and friends. Likewise, Maya requested Dr. Montgomery not to inform the parents of her sick teenage friend. Dr. Montgomery was faced with the dilemma whether to disclose or not. Her dilemma emanates from the doubts she entertains about the ability of teenagers to make such an enormous decision. She wondered whether the two teenagers are old enough to make such a decision on their own. More still, if allowed to make the decision, would they be matured enough to shoulder the burden of concealments? Therefore, Dr. Montgomery’s doubts regarding the autonomy of the two teenagers made it difﬁcult to justify maintaining conﬁdentiality. In this and similar situations, conﬁdentiality may be breached. For this reason, arguments from autonomy and privacy rights as well as consequence-based arguments admit of non-absolute conﬁdentiality rules. Consequently, the Hippocratic injunction has to be reinterpreted to depict that conﬁdentiality does not necessarily mean absolute secrecy. Scholars have to admit, therefore, that there may be things that may be “spread abroad.” However, when there is a need to protect the patient from harm, one can breach the conﬁdentiality rule. When revealing will bring harm and less beneﬁt to the patient, conﬁdentiality is maintained. All this practice of conﬁdentiality should operate within the ambit of the standard of care.
Standard Of Care Versus Confidentiality
5 stipulates the quality and level of care required of a healthcare professional for a certain type of medical situation, patient, or illness. It is a quality or level of care a reasonable healthcare professional will follow for a certain type of medical situation, patient, or illness. A standard of care helps to guide a healthcare professional and to protect the healthcare professional from malicious accusation. It also enables patients or their relatives and surrogates to hold a healthcare professional accountable. For example, a patient may accuse a healthcare professional of disclosing a conﬁdential information leading to harm. The patient or the one making the allegation implies that the said healthcare professional delivered a substandard care or was negligent of the standard of care. The harmed person can sue for redress.
However, there are four essential elements in the professional due care that have to be established. They are thus: (i) that at the time of the negligence the healthcare professional has a duty to the affected patient, (ii) that the healthcare professional breached the duty, (iii) that the patient concerned experienced a harm, and (iv) that the harm was caused by the breach of duty.
Confidentiality Versus Vulnerable Group
Vulnerable group generally refers to HIV and mental patients, although it is not conﬁned to them. The vulnerable group has been isolated from the general discussion in this paper because their issue with conﬁdentiality and privacy can be said to be unconventional. The issues arise from the social or clinical context of care. The concerns are not the fear that the healthcare professionals will disclose their information. Rather, their concerns are about the location of the place of care and the mode of care. For the members of this group, the location of the place of care and the mode of care do not safeguard their privacy and conﬁdentiality. For instance, some HIV patients, mental health patients, and those seeking abortion are worried that people might see them entering or exiting the HIV testing clinic, the mental health institute, or the abortion clinic, respectively. They are scared of the stigmatization that might result from people seeing them (Shaw et al. 1996; O’Flynn et al. 1997; Sankars et al. 2003). Studies carried out in the USA conﬁrm that the fear of being seen entering or exiting HIV clinics or being seen taking HIV medication deterred people from seeking needed care (Petchey et al. 2000; Erwin and Peters 1999). Likewise, research shows that when anonymous HIV testing was provided in Oregon Public Health Clinics, there was an increase in testing by 125 % among gay men, 56 % among prostitutes, and 33 % among persons with high-risk sexual partners (Fehrs et al. 1988). These concerns call for the creation of environments and social contexts of care that are devoid of fear of exposure and that encourage patients to feel secure to seek needed care.
Confidentiality In Rural Healthcare
In rural communities conﬁdentiality and privacy can be a challenge. In these communities which also are embracive of the healthcare providers, there is a close-knit relationship between the members of the community. There exists a familiarity which promotes trusting relationships in healthcare in rural setting. Of course, conﬁdentiality and privacy are very important for trusting relationships especially in healthcare. Nevertheless, in rural communities the people are very much related to each other, either as relatives or friends, or they frequently encounter each other. Therefore, people are privy to one another’s activities and lives. Thus, this poses great challenge in observing conﬁdentiality in such settings or rural healthcare.
Confidentiality In African And Asian Societies
Furthermore, besides rural communities, in some cultures, such as African and Asian, most often patients are not given directly the results of their diagnoses especially when the results are grave (i.e., bad news). Patients are not given bad news, at least not directly. Such information is given to the patients’ family or relatives as the case may be. It is not the patient who necessarily makes this decision but the custom which informs and is informed by the concept of its autonomy. In other words, this practice is justiﬁed by the concept of autonomy and informed consent practiced in bioethics in both Africa and Asia. Both regions employ and exercise relational autonomy even though informed consent is family oriented in Asian societies and community oriented in African worldview. Nevertheless, it does not mean that a patient’s information is shared with everybody. This sort of practice differs markedly from and challenges the Western (Euro-American) concept of conﬁdentiality, which is based on (atomic) individualism. In Western bioethics the patient is seen as possessing an inviolable right to deal with illness and to decide solely regarding his or her own treatment and who has access to his or her medical information. Therefore, in that setting, the physician is required to deal with the patient directly and or with whomever the patient permits access to the information. There is, hence, a nuance in the understanding and practice of conﬁdentiality in bioethics in both African and Asian contexts when compared to the West.
This research paper has traced brieﬂy the history of conﬁdentiality from the Pythagorean pronouncement and the deﬁnition of conﬁdentiality beginning with Hippocrates. Then, the utility for patients, the medical system, and the larger society were identiﬁed as necessitating conﬁdentiality. Besides utility there are the respect for autonomy and privacy rights which double as the necessity and the justiﬁcation for conﬁdentiality. Even though the requirement of conﬁdentiality is very crucial, it is not absolute. It admits of exception as illustrated in the exploration of the situations that might call for breaches of conﬁdentiality. Then, there was how vulnerable groups such as the HIV and mental health patients express different concerns with conﬁdentiality. Their worries are about the location of the place of care and the mode of care, the fear of being seen entering or exiting HIV and mental health clinics, respectively, as well as the stigmatization thereof.
Finally in exploring conﬁdentiality in African and Asian society, it was observed that the concept of autonomy and informed consent inﬂuence the understanding and practice of conﬁdentiality. And this is illustrated by the difference in the practice of conﬁdentiality in the Western bioethics in one hand and that of African and Asian bioethics on the other.
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