When is Privileged Communication Not Privileged? The Law and Ethics.
Privileged communication is "an exchange of information between two individuals in a confidential relationship."
I present now three scenarios and look toward some wise visitors to this blog to provide me with some answers from the legal point of view but also a view of the ethics. ..Maurice.
Suppose a patient admits to his physician that he is emotionally upset and is having gastro-intestinal symptoms because he killed his wife and buried her body in the back yard and told others that she was on a vacation. Suppose a client who is about to be questioned by the police, admits to his lawyer that he killed his wife and buried her body in the back yard. Would the professional standard in each case see the admission as privileged communication and allow the professional to withhold the information to the police or courts that the patient or client admitted? Suppose the patient with symptoms and that same story went to his physician who was both a physician and a lawyer licensed to practice and revealed the killing but desired the professional as a lawyer to provide professional legal advice and, if necessary, defend his case. Could privileged communication still be preserved?
posted by Maurice Bernstein, M.D. @ 3:58:00 PM
6 comments
6 Comments:
In the first two cases, the physician or the attorney, I think absolutely the information is confidential. As far as I know, privilege can be broken only for things like abuse of a child (or perhaps an elder or disabled person) or a credible threat to a known person.
Past actions such as killing the wife cannot be disclosed.
The physician/attorney combo - I don't know. One would think that since both are confidential relationships, combining them would be also. But I don't know if there's some sort of conflict of interest or anything.
Ethically - I'm afraid I think it shouldn't be disclosed. Sure, it seems the doctor or attorney shouldn't "let" him get away with killing his wife. Yet, it is a slippery slope.
If your doctor can turn you in for what you disclose, then you can't trust your doctor. Where is the line? Dare you disclose drug use for example? I think the line has been drawn - child abuse/credible thread to a known person, and there it should stay.
The attorney - our system is based upon the attorney giving you the best defense, if you're guilty or not. So again, I think there it should stay. I couldn't be an attorney though, it must be very difficult morally sometimes.
TAM
TAM, I, likewise, would feel morally uncomfortable to be either a civil lawyer dealing with "cheaters" or criminal lawyers dealing with "killers". On the other hand, as a physician I think I can deal with a patient admitting a crime since if such a crime occurred, I would have no way of investigating and providing supportive evidence. In the case of a physician examining a patient who has suffered child or elder abuse, it, currently, is no longer a moral decision to report but a legal requirement in most states and, the suspicions are not based on hearsay or patient admission but would be based on physical examination findings. What is still undefined in reporting is regarding 3rd person notification if a patient is found to have a communicable disease such as one which is sexually transmitted. While, health department notification of a number of communicable diseases is required by law, there is no clear moral or legal answer regarding a physician reporting confidential medical diagnosis to a partner. And this is despite the legal settlement of the duty of a psychotherapist is notify a third person regarding a patient's admission of intent to harm that person. Because of this ambiguity regarding disclosure to the 3rd party, I feel more comfortable reporting to a governmental agency as required by law and give them the responsibility of 3rd party notification. The one exception to this reporting would be if the 3rd party was also my patient. And then I would have a moral and professional conflict. ..Maurice.
I am not a physician, but I would not have a big moral conflict knowing the patient had done something - where I would feel conflicted as the attorney, who is bound to help them "get away with it".
I was once a mandated reporter, and in roles where I was bound by the same confidentiality as a psychotherapist.
Being bound to report potential harm to a person - true, but how much harm? Murder them, of course. Hurt their feelings, throw out their favorite suit - of course not. So should one be bound to notify a partner of a communicable disease? That's a harder one.
People do have to be able to confide without fear in their physican, or psychotherapist. I'm sure, at times, it can create quite a moral dilemma. I, personally, am ok with knowing about past actions. To me, the good coming from the ability to trust the professional, not just by the particular individual but all individual, outweighs my "desire" to turn them in.
TAM
I have had a number of families where both the husband and wife were my patients. To TAM or other visitors: where do you think that privileged communication begins or ends with this doctor-patients relationship? Where and what should be the limits of communication. If I am involved as a physician in providing beneficence to one of my patient partners, should I simply ignore the other partner to whom I also have professional responsibility? ..Maurice.
I think, difficult though it is, you must keep each partners confidence and it must make no difference that the other partner is your patient. Of course, you're free to try to persuade the spouse to do the right thing.
Again, a slippery slope - if you want to break a confidence to inform your other patient, the spouse, what if they are just dating instead of being married? Or a son or daughter? Or...?
I think to be able to preserve the confidentiality of the physician-patient relationship, the lines have been drawn, and need to stay intact.
I have been in a similar position actually - doing some domestic violence counseling, I ran the group for the abused (women in this case) and also the court-ordered group for the abusers (in this case men). I had to be very careful to not disclose anything between the groups. I did, however, point out to the organization running these groups that I didn't really like it, found it a potential conflict of interest. But still, I would have kept the confidentiality no matter what, except as provided by law.
TAM
I have also been in a position of working with more than one member of the same family. I write in the present tense, but no longer do this kind of work. I am not a physician so am not sure in what circumstance, if any, there is a legal obligation for physicians to report.
Regarding maintaining confidentiality with other family members--I think it is important to have a conversation with the family members at the outset about confidentiality and both my obligations and how each family member feels about any potential conflict. If there has been this discussion, it becomes easier to know what might or absolutely will be disclosed. I know time is always an issue, but if I have to make such a revelation, I encourage the families to reveal the information themselves (with at least one party present so I know the revelation was really made). At the least, I inform the person whose information I must reveal that I must speak to the other family member.
Once placed in the middle it can be difficult to deal with information that is private to an individual in the family. As a general rule, I prefer not to see members of the same family individually on an ongoing basis for this reason. If I am working with a family and one of the individuals needs an individual therapist, I refer for individual therapy. I speak here as a mental health professional. I would think some variation of this might work for physicians.
Regarding the initial discussion about reporting crimes that have already been committed, I would probably consult an attorney as to my legal obligation in this circumstance. As an aside, I would note that because of HIPPA, nothing written down is really confidential. You may not make a report, but what about the call center employee who accesses a chart and sees this information written down? While you may still think about privileged communication, in reality nothing is truly privileged anymore.
In the case of potential threats and danger, laws apply to this and the limits of confidentiality that apply specifically to this instance should be revealed to the patient before they begin to disclose personal information. It is my belief that signing a form saying you have been offered a pamphlet of privacy policies is not adequate, though it may be all that is legally required.
I don't think hurt feelings qualify as a reportable danger. The language where I practice is "reason to suspect". There is a bit of latitude in this, but all training I have had on this has consistently said there needs to be a specific threat to a specific person or group of identifiable people. Thinking about harming doesn't qualify. Having a plan with a reasonable chance of causing significant harm to another does. There must be a reason to suspect there is a specific danger.
KA
Post a Comment
<< Home