Patient confidentiality: Ethical and legal ramifications

Veronika Valdova • January 20, 2020

Patient confidentiality: Ethical and legal ramifications

Jun 2017 

Patient confidentiality is a complex ethical and legal area that is subject to detailed regulation in all developed countries. The general principles are shared across all jurisdictions.  

In most countries, the maintaining of patient confidentiality is a legal requirement. The extent of the right, as well as the rules for disclosures, varies by jurisdiction. In general, patient confidentiality is not an absolute right and disclosures are permissible to the extent defined in law, especially in emergencies or for law enforcement purposes. These disclosures are limited in extent and scope to protect the patient. In the United States, the governing law is the Health Insurance Portability and Accountability Act of 1996 called HIPAA (U.S. Department of Health & Human Services, 2017). In the European Union, patient confidentiality is subject to Directive 95/46/EC as implemented by individual member states (European Parliament and of the Council, 2017). In the UK, the rules for patient confidentiality are summarized in General Medical Council guideline “Confidentiality: good practice in handling patient information (2017)” (General Medical Council, 2017). 

Ethics: Patient Autonomy
„The rule of the self that is free from control and interference from others as well as any personal limitations that prevent the making of a personal choice” (David Weisstub & Guillermo Pintos, 2013). The principal issues in patient autonomy are informed consent, the distinction between two extremes that are medical battery and medical negligence, the nature and purpose of the informed consent, and the relevance of fraud. The right to self-determination includes the right to make medical decisions for self. The breach of the right to autonomy amounts to a medical battery. Medical battery, or trespass to the body, may constitute a criminal offense. On the other hand, the failure to act in patient’s interest may result in claims of negligence. 

Breach of Autonomy: Medical battery 
As decided in 1914 in Mary E. Schloendorff, Appellant, v. The Society of the New York Hospital, Respondent, ”Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages.” Exceptions apply in cases of emergency ("Basic right to consent to medical care - Schoendorff v. Society of New York Hosp., 105 N.E. 92, 93 (N.Y. 1914)", n.d.).  

A medical battery is a criminal offense that can also serve as the basis of a civil lawsuit. Even if the care is intended to be beneficial, forcing it on an unwilling patient can amount to battery. For physicians, a battery is a legal threat if the patient was lied to about the nature of the treatment and if there is another type of fraud involved in obtaining informed consent. The most common scenario involves patients who are mentally incompetent or incapacitated or legally unable to make decisions for them and the care that was forced onto them was inadequate or inappropriate. If a patient refuses care, court authorization is required to override patient’s will (The LSU Medical and Public Health Law Site, n.d.). 

Patient Confidentiality 
The General Medical Council Good Practice Guideline states that “Trust is an essential part of the doctor-patient relationship and confidentiality is central to this. Patients may avoid seeking medical help or may under-report symptoms if they think their personal information will be disclosed by doctors without consent or without the chance to have some control over the timing or amount of information shared” (General Medical Council, 2017). Doctors have the obligation to protect patients’ personal information from inappropriate disclosures outside direct care for their patients or other legitimate purposes such as medical research, public health reasons, service planning or financial audit. The failure to follow the guidance can result in the loss of registration (General Medical Council, 2017).

The principle of Beneficence
The interpretation of beneficence in medicine shall mean “the doing of good, the active promotion of good, kindness and charity”, or “or any action that is done for the benefit of others”. In medicine, beneficence stands for the obligation of physicians to provide care to the best of their ability while preventing harm. The principle of beneficence is one of the central values of Hippocratic medical ethics, along with confidentiality and non-maleficence, meaning the obligation to do no harm. Only in the 20th century, the principle of patient autonomy started to prevail. The principles of beneficence and autonomy are not absolute and shall be always evaluated in the context of care for the individual patient (Munyaradzi, 2012).

Truthfulness
Honesty is an important part of physician’s respect for the patient. Contrary to popular belief, most patients do wish to know their condition. About 90% of surveyed patients expressed a wish to know about the diagnosis of cancer or Alzheimer’s. This does not mean that patients always need to know all the details. However, they should be informed about the nature of their disease, expected outcomes, and available treatments and their benefits and risks to be able to make an informed decision. Sensitivity and tact are important parts of such conversations. Exceptions include situations when the patient is severely depressed and can become acutely suicidal. And finally, in some instances, it is acceptable to offer the patients placebo, if the response rate is known to be high and alternatives are potentially harmful, especially if the patient has a strong need for some prescription ( the University of Washington, n.d.).

Case study – Conscientious refusal 
In 2002, a student from Wisconsin asked a pharmacist in K-Mart to fill her prescription for birth control pills, but the pharmacist refused to do so because of religious beliefs. The pharmacist did inform his manager that he would refuse to fill such prescriptions, however, failed to mention how he would ensure proper care for the patient. The patient filed a complaint and the Wisconsin Department of Regulation and Licensing's Pharmacy Examining Board found that his action constituted "a danger to the health, welfare, or safety of a patient and was practiced in a manner which substantially departs from the standard of care ordinarily exercised by a pharmacist and which harmed or could have harmed a patient." In this case, the pharmacist professional responsibilities were in conflict with his personal beliefs. His professional responsibilities included non-maleficence, justice and patient autonomy (McLean, 2011).  
Slide 9 – Medical ethics: practical dilemmas    
The field of medical ethics is developing over time and the conclusions of individual cases largely depend on the social, political and historical context of the case. The issue of mental competency and ability to decide for self is essential because of the dividing line is often very blurred. Examples include the care for adolescent patients or people who are gradually developing dementia but oscillate between the states of perfect clarity and diminished capacity. The case of Cassandra, a 17-year-old patient with Hodgkin lymphoma, represents a medical ethical dilemma. The patient refused chemotherapy against the wishes of medical professionals. Because her mother supported Cassandra in this decision, the custody was removed from her mother and the teen was forced to undergo chemotherapy against her will. Not only was the treatment forced on the adolescent, the teen was strapped to the bed. Cassandra was not allowed to communicate with her mother on phone and all means of communication were taken away from her. The case is still unresolved. Whilst the objective and intent to proceed with treatment may be beneficial, the means of achieving such objective raise serious concerns what is appropriate and acceptable (Macklin, 2015).

Key takeaways 
Physicians’ obligations in regards to beneficence and patient confidentiality and autonomy are highly regulated. Violations of these obligations can result in severe criminal, civil and administrative liability and loss of professional license to practice. Patients’ right to confidentiality is essential to maintain the trust between physicians and their patients. Disclosures are limited to specific situations. In regards to patient autonomy vs. beneficence, these rights are not absolute but have to be carefully considered when caring for individual patients. Disregard for patient needs can lead to claims of negligence. Medical battery equals care provided without the patient’s consent or against his wishes, using fraudulently obtained consent, or with the intent to cause harm. 

Recommendations for change 
Medical ethics is a hot topic with the potential to inflict serious reputational damage on medical practice. The potential for criminal, civil and administrative liability can be decreased through continuing professional education, by keeping up to date on landmark cases and seeking specialized legal advice in more complex cases and ambiguous situations.  
References
Basic right to consent to medical care - Schoendorff v. Society of New York Hosp., 105 N.E. 92, 93 (N.Y. 1914). Biotech.law.lsu.edu. Retrieved 19 June 2017, from http://biotech.law.lsu.edu/cases/consent/Schoendorff.htm 

David Weisstub & Guillermo Pintos. (2013). Autonomy and Human Rights in Health Care: An International Perspective. New York : Springer Books.

General Medical Council. (2017). GMC | Confidentiality: good practice in handling patient information (2017). Gmc-uk.org. Retrieved 19 June 2017, from http://www.gmc-uk.org/guidance/ethical_guidance/confidentiality.asp 

General Medical Council. (2017). GMC | Contents: Confidentiality: good practice in handling patient information. Gmc-uk.org. Retrieved 19 June 2017, from http://www.gmc-uk.org/guidance/ethical_guidance/30579.asp 

European Parliament and of the Council. (2017). EUR-Lex - 31995L0046 - EN - EUR-Lex. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Retrieved 19 June 2017, from http://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:31995L0046 

Macklin, R. (2015). The Ethical Dilemma of Forced Chemotherapy on a Teen. The Doctor's Tablet. Retrieved 19 June 2017, from http://blogs.einstein.yu.edu/the-ethical-dilemma-of-forced-chemotherapy-on-a-teen/ 

McLean, M. (2011). Conscientious Refusal. Scu.edu. Retrieved 19 June 2017, from https://www.scu.edu/ethics/focus-areas/bioethics/resources/conscientious-refusal/ 

Munyaradzi, M. (2012). Critical reflections on the principle of beneficence in biomedicine. The Pan-African Medical Journal, 11(29). Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3325067/ 

The LSU Medical and Public Health Law Site. Battery—No Consent. Biotech.law.lsu.edu. Retrieved 19 June 2017, from https://biotech.law.lsu.edu/map/BatteryNoConsent.html 

U.S. Department of Health & Human Services. (2017). HIPAA for Professionals. HHS.gov. Retrieved 19 June 2017, from https://www.hhs.gov/hipaa/for-professionals/index.html 

University of Washington. (2017). Truth-telling and Withholding Information: Ethical Topic in Medicine. Depts.washington.edu. Retrieved 19 June 2017, from https://depts.washington.edu/bioethx/topics/truth.html 

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