Confidentiality
The Hope It Stays Quiet
Privacy is something that all people cherish in some shape or form. For instance, we often like to keep our health private because some conditions can be humiliating, like catching Gonorrhea from unprotected sex. This means we tend to put a lot of pressure on doctors to keep our health secret so that it can stay private. This is termed as confidentiality. Doctors, by law, have a responsibility to uphold the confidentiality of their patients. However, they also have a responsibility to the public. This can sometimes create conflict. Let’s say a doctor has a patient who caught an STD. The entire time they talk about this girl they are gonna be seeing but never assures you that he will protect her from him since he has an STD. What should the doctor do? What limits confidentiality and when should the doctor breach it?
Sissela Bok, a professor at Harvard University, covers “The Limits of Confidentiality.” She starts with four premises that support professional-client confidentiality. These premises are individual autonomy to have secrets, autonomy to share secrets, pledge of silence, and professional obligation. The first premise recognizes that patients are able and can have secrets. The second establishes that they are able and can share those secrets that they hold. The third is the responsibility we have to keep secrets that we promise to keep. For instance, if we sign a non-disclosure agreement we agree to keep company secrets. The last premise is that professionals have a bigger obligation to keep silent. This premise is important because it recognizes how professionals function. They function in service to their clients. Therefore, they have a bigger responsibility to keep their clients’ secrets versus an employee of a company or a friend to a friend. If they fail to uphold confidentiality it can discourage people from seeking help and ultimately hurt the underbelly of society.
Bok then explains how paradoxical confidentiality is. “The sick, the poor, the mentally ill, the aged, and the very young” have “their right to confidentiality” breached (Bok). The reason it’s paradoxical for these groups of people is due to how confidentiality is used. Take for instance a young girl who has gotten pregnant. She often doesn’t have confidentiality because she is seen as not fully mentally developed to have autonomy. If the doctor doesn’t disclose the information to the parents then he isn’t recognizing the parents’ right to the well being of their child. However, by disclosing the information they are breaching the confidentiality that the doctor owes to the younger patient that could frighten her from seeking medical care in the future. Let’s say the doctor chooses to keep her secret because he wants her to feel comfortable. Eventually, the parents find out, are outraged that the doctor didn’t tell them, and are threatening to sue. In this scenario, the doctor will say that he had an obligation to keep her secret because of confidentiality. The doctor is then using confidentiality as a shield. This is why it’s paradoxical. The groups of people mentioned above often have their confidentiality breached then the doctors flip and use it as a shield to protect themselves from any backlash.
Knowing that the shield can be used. How does each group of people get this paradoxical shield? The sick will have their confidentiality breached because they pose a threat to the well-being of society. Although normally a patient would retain their right of autonomy to have a secret, a doctor can’t uphold his obligation to secrecy because it threatens others. If the doctor didn’t release the information it could cause a worldwide pandemic. Now let’s say that a doctor mixes up two test tubes and ends up spreading the disease to other patients. To protect himself he will use the sick’s confidentiality to cover up his mistake. If anyone asks how the disease spread from one patient to another, the doctor can simply say “I can not disclose that information because it would breach my client’s confidentiality.”
The next group that often faces this paradoxical shield is the poor. The poor often have no confidentiality when seeking advice from professionals because they can’t afford it. Take for example the lawyer that requires a retainer. This means that their autonomy is not respected and the lawyer doesn’t promise secrecy. Since they lack the money to afford confidentiality they are often abused because of it. Take for example a defense lawyer. A lawyer severely overcharges a client. If asked why he charged so much he can dodge the question by saying it would break confidentiality, when in actuality the lawyer took advantage of the poor because it’s profitable.
The next group is the mentally ill. Let’s say a doctor prescribed a medicine that is known to have negative side effects. This is bad practice because it’s pushing medicine that doctors otherwise wouldn’t. Since the mentally ill lack confidentiality because they are not in the right mind, it makes them easy targets. It also means that their autonomy is flawed in that it can be unreasonable. So if the doctor ever gets asked about the prescription he could easily deflect the public attention by using the patient’s confidentiality as a shield. This allows him to continue to prescribe medicines that others would consider dangerous practice without fear of consequence.
The last group is the elderly. Often elders are at the mercy of their children. If their child sends them to a nursing home, it’s hard for the children to keep up with their parents’ health, finances, and other professional related dealings. So often elderly lose confidentiality because they lack the awareness to have autonomy. Let’s consider a patient who has not given power of attorney to their children. Since they lack the awareness to deal with professionals, then it’s left up to the children to handle their affairs. Let’s say this elder sets up a meeting to talk to their financial advisor. The financial advisor knows he can take advantage of them because they have not signed a power of attorney and gets them to sign a deal that highly benefits him but not his client. If the family wonders about this financial advisor, he can simply say that it would breach confidentiality and hide behind his shield. Thus, robbing the elder of their wealth.
Knowing this information and how easy it is to abuse confidentiality, there needs to be a clear time to breach it. If we allow it to continue unchecked, it will ultimately lead to further shady dealings. Also, “matters such as contagious disease place individual autonomy in conflict with the rights of others” (Bok). Therefore confidentiality should only be breached if it poses a risk to others, poses a risk to oneself, power of attorney, or it won’t pose a threat to the comfortability of the young. The reason these four breaches are applicable has to do with groups that correspond. The sick and the mentally ill pose a threat to others as well as themselves if not handled properly. Thus, in scenarios where the sick or the mentally ill pose a threat, confidentiality should be breached. Take the doctor who mixed the test tubes for example. If the sick, provided it threatens the public, loses confidentiality relating to their illness, then the doctor can no longer use it as a shield when he spreads the disease through the hospital.
The poor pose a threat to oneself because they simply can’t afford the fee that comes with confidentiality. Considering this, when a lawyer overcharges them they can longer hide behind the shield when questioned about the steep prices he is charging his clients. This is because by seeking help, they are hurting themselves financially. Thus, posing a threat to themselves. So when the lawyer charges them steeper prices in comparison to other clients, he is forced to provide a reason for the steep prices, even if some of the details pertain to the case, like that the client had a history of violence as an adolescent.
The elderly, if they sign their rights away, will lose all confidentiality and sign that over to their children. This means that the children get to know all things that pertain to their parents. So when it comes to the shady financial advisor, he won’t be able to take advantage of elderly parents because he must consult with the children instead. This prevents the shady financial advisor from pleading confidentiality since the children own their parents’ confidentiality.
The young should have their confidentiality breached if it won’t hurt their trust. Take for example the doctor handling the pregnant teenager. Relinquishing this information can hurt the girl’s trust. However, if it was a less severe situation like she had a rash that needed treatment, then it would not betray her trust because the parent would need to get the medicine. Therefore, breaching confidentiality is helping her rather than putting in her in a potentially traumatic situation.
Now that we know when it’s okay to breach confidentiality especially in scenarios with the sick, the poor, the elderly, the young, and the mentally ill, we know the limits that it can be used. So when we are faced with a shady financial advisor or a morally questionable doctor, we know when they are using confidentiality defensively to hide something. This not only secures our private lives but also those we care for that fit into one of these groups. It ensures that our private lives are kept private.
