| Introduction
A fundamental medical ethical precept is that part of the Hippocratic Oath that speaks of the physician's obligation to remain silent when the personal world of the patient is in question. Physician confidentiality has had a central place in medical practice and theory, as an essential component of medical ethics. Moreover, it is the soul of medicine and a physician's sacred duty. Therefore, medicine is known as ars muta - a silent, mute art. Physician confidentiality is one of the best indications of due respect for persons being treated, as well as one of the best indications of a physician's self respect. Is strict medical confidentiality respected under modern conditions, in theory and practice? This aspect of the relationship between a health professional and a patient is being put to the test. The concept and types of confidentiality
Both classical and contemporary textbooks on morals and Christian ethics deal with the question of confidentiality, whether in the area of virtues or regarding the morality of individual professions. The concept of confidentiality implies the obligation not to divulge certain information about a person to anyone else. Every person has an innermost life, a sense of reserve and restraint toward those around him, a sacred and untouchable dimension of his own. This quality is manifested as an essential condition of self-realization: "A person who has lost or has been forcibly deprived of his innermost life becomes a conscience exposed to all rudeness, injuries and insults." Guarding this innermost life is not the selfish walling off of oneself toward others. It is a personal value and position that affords a person protection from becoming an object of prurient curiosity. Inner life and privacy also imply a respectful attitude regarding the disclosure of information about another person, as well as the disclosure of information about oneself to others. Confidentiality is a freedom that safeguards the inner life of a person, protecting her from the injuries, indecent exposure and unwholesome interest to which she would be exposed if it were revealed in an unseemly manner.
Viewed generally, confidentiality is an act or state of protecting one's own inner world and conscience from the intrusion of public investigation, disclosure. In relation to others, confidentiality is the rule or moral obligation that what has been learned in confidence should not be disclosed without the consent or against the will of the person who entrusted it. Confidentiality can refer to an individual and his personal world, or equally to some particular group that has assumed the obligation of nondisclosure to others outside the group, which has undertaken the moral obligation not to disclose information learned or received in confidence to anyone. Three fundamental types or degrees of confidentiality are generally considered: 1. A natural secret - secretum naturale, refers to an area where the nature of the fact in question requires discretion, caution and silence. For example, matters of the spiritual life, findings from one's own attempts or genius, a personal journal, correspondence, serious errors or anything else that could harm one's neighbor: his honor, good reputation or material goods. 2. A promised secret - secretum promissum, is that which obligates with the power of a promise. The obligation of safeguarding the secret issues from the freedom of the "promise." Such a promise presumes a natural secret. Violation means the breaching of a given promise, and a betrayal of honor and sincerity. 3. A contracted secret - secretum commissum, is knowledge conveyed on the basis of a contract, explicit or implicit, that it will not be disclosed. Such a secret binds with the force of the expressed desire of the person who conveyed it and the contract that obligates the one who has received the information not to disclose it. Professional secret. Among various types of contracted secrets (friend, professionally qualified friend, member of a particular profession), the professional secret is prominent. Since ancient times, some professions have fostered and required the keeping of members' secrets. A contract of silence is explicit or implicit. An individual - seeking professional assistance or encouragement in the area of emotional conflict or on the level of interpersonal relationships - confides in another on the basis of trust that said person enjoys precisely because he is a member of a particular profession (physician, midwife, psychologist, lawyer, banker, notary etc.). In modern life, this type of confidentiality is applied to the profession of journalism: the journalist and his confidential sources of information.
Among the types of secrets, there is also the sacramental or confessional secret. This derives from a divine-human right, and the obligation is unconditional, without exception, absolute and therefore is also called a seal - sigillum. Medical confidentiality
Medical confidentiality is a type of contracted, professional secret and can be defined as "the due obligation of the confidentiality that a physician receives as a physician from his clients, entrusted in order to achieve some services provided by that profession." Motives of Medical Confidentiality
1. The personal motive or the dignity of the human person. It is a general conviction that privacy is something good and valuable because it protects a person's thoughts, feelings and imagination. Every person has the right to his innermost life, his privacy, that cannot be invaded any individual or government. This is his own property, in addition to his ownership of material goods. With increasing awareness of the autonomy of an individual came increasing awareness of the individual's right to privacy.
The great architect of contemporary medical ethics, Pope Pius XII, says: "There is a great part of one's own inner world which a person does not reveal except to a small number of confidants and protects from attacks by others. Some things are protected at all costs and from everyone. As it is not permitted to usurp the goods of another and attack his physical integrity without his permission, it is not in any way permitted to enter into his inner space against his will, regardless of what methods and techniques are employed." 2. Social motive. A person by his nature is a being of encounters, directed toward other beings similar to himself, a social being. Thus, medical confidentiality has a double source: from personal intimacy and man's sociability. Therefore, the same Holy Father says: "A definition that would see in this confidentiality merely bonum privatum, a measure determined for the good of the individual, would be incorrect; it is also sought due to bonum comune, the common good."
The common good depends on the good of the individual. Thus, the common good requires that the individual can confide painful, delicate situations in which he may find himself to professionals or friends, in order to obtain encouragement or illuminating advice. In order for an individual to develop and improve himself, in both the natural and supernatural aspects, it is necessary to have reliable people in whom he will be able to confide. This dimension of physician confidentiality is not merely regulation of a positive civil right but ensues from the nature of the necessity of communal life. It is, therefore, based on natural law and natural rights. 3. Theological motive. It is known that Jesus was a public figure and appeared in public, speaking to large crowds of people and to families. However, reading the Gospels, we note that Jesus withdrew completely to a place of isolation, that he respected and required a certain degree of restraint and privacy.
1) Sometimes he would only take those most trusted with him, the three to whom he was particularly close: Peter, James and John - as on the mountain during the Transfiguration (Mt 17: 1&endash;9) and in the Garden of Gethsemane (Mt 26: 36&endash;46).
2) On another occasion, he spoke only to the twelve Apostles, and did not tell them everything at once: "I still have many things to say to you but they would be too much for you now" (John 16: 12), i.e. now you cannot understand.
3) Jesus required discretion and restraint from the Apostles, warning them as follows: "Do not give dogs what is holy; and do not throw your pearls in front of pigs" (Mt 7: 6). Consequently: "Reverence for the divine Source of truth cautions us against revealing truth where there is no disposition to receive it sincerely or where we cannot actually bear meaningful witness to it. The communication of truth has its very purpose in acceptance and response. Many delicate problems and even grievances can be discussed with mature people, to everyone's profit, whereas public discussion of the same matter in open forum might result in disaster." The Foundations of Medical Confidentiality
In ethical-moral discussions - and when we wish to speak about medical confidentiality, that question about man is fundamental. Knowledge of many, anthropological knowledge, is the fundamental assumption of every moral discourse, including moral discourse about physician confidentiality. The fundamental questions are as follows: who is a person, in what lies his dignity, and what are the values of his life?
Pope John Paul II in his inaugural encyclical Redemptor hominis points out the following: "The Church cannot abandon man ... Man in the full truth of his existence ... this man is the primary route that the Church must travel in fulfilling her mission: he is the primary and fundamental way for the Church, the way traced out by Christ Himself." Thus, the art of medicine unavoidably meets philosophical and theological thought, each from its own vantage point, in one and the same person. A person is more than the sum of his biological components. According to Pascal: "L'homme passe infiniment l'homme - man infinitely surpasses man." Therefore, biological knowledge is necessary but lacking. In order to grasp a person's dignity, we require a complete, holistic view of man, we need philosophical and theological thinking, and an assessment of the givenness of the positive sciences.
From the philosophical aspect, we learn about man through the light of reason as a unique physical-spiritual being, gifted with understanding and freedom, the power of self-determination and responsibility. Therein lies the source of his personal dignity and his differentiation from all the other beings on earth. The knowledge of good and evil, and the voice of his conscience steadfastly command him to do good and avoid evil. Theological Thought
The first pages of the Bible tell us that man is the object of God's specific decision and undertaking. Whereas the heavens and earth, and all creatures were created by the simple formulation "God said: Let there be ... And so it was," for the creation of man, "God said, 'Let us make man in our own image, in the likeness of ourselves' ... God created man in the image of himself, in the image of God he created him, male and female he created them" (Gn 1, 26&endash;27). For Adam, God created Eve, and to Eve he gave Adam. Thus were defined the purpose of sexuality, marriage and family, personal equality and the differences of mutually complementary roles. Man - male or female - is the only creature created in the image of God, for a life shared with God in eternity. Man is a living icon of God. Man is the only being on earth in the Divine image. This is God's definition of man. This "proclaimed truth is the immutable foundation of all Christian anthropology." For complete understanding of mankind, from the Biblical/theological aspect, it is necessary to take into account the entire history of salvation: man's fall - sin, with all its consequences, and the mystery of redemption.
From the Revelation, we know that God is a reasonable, intelligent and wise being. Moreover: "God is love" (1 Jn, 4, 8). It is in this image that man was created, and this image should be reflected in a person's life. Here lies the source of ethical-moral criteria, the imperative of moral conduct. Consequently, man's fundamental relationship has three aspects:
1) Man's love of God: "You must love the Lord your God with all your heart, with all your soul, and with all your mind. This is the greatest and the first commandment" (Mt 22, 37). It is only in striving to fulfill this ideal that a person can achieve his ideal identity.
2) Man's love of every individual image of God, and therefore all of them together. Therefore, after the first and greatest commandment follows the second, which is equal to it: "You must love your neighbor as yourself" (Mt 22, 38).
3) Man's relationship toward all of God's creation. According to the Biblical definition of God, God is love. He created the world out of love and sustains it. The classical axiom dominium terrae = dominion over the earth can and should be completed to say: dominium terrae = amor terrae - dominion over the earth = love of the earth. Love is best manifested through serving. Such a man has his secrets. They are part of his being, of himself insofar as he is a being in the image of God. This is the origin of our authentic relation toward a person and his dimension of secrecy among material, intellectual, emotional and spiritual values. The Subject of Medical Confidentiality
Strictly speaking, physician confidentiality encompasses everything and only that which a patient consciously confides to a physician, or in confusion, and not something that a physician is able to conclude or already knows. Casuistry in this area is abundant and instructive. In order to preserve confidence in the profession, as well as to avoid eventual unpleasantness for both the patient and physician, and sometimes for third persons, prudence recommends total silence.
The obligation of confidentiality encompasses not only the time during which the patient is alive but also after his death. Even after death, an individual retains the right to his privacy. Therefore, it is inappropriate to publicize everything in gruesome detail, the final hours of agony and dying, whether in biographies, literature, memoirs or scientific works. If this is required for professional analysis and scientific investigation, it is necessary to eliminate the possibility of identification.
Since contemporary medicine relies on many technical devices, including the recording of patient histories on computers, the area of confidentiality has also extended to the security of such devices. A particularly sensitive question arises when health care personnel have access to a computer, together with other services: insurance bureau, security service etc. A possible solution is to have two computers with two different types of data on the same patient. However, if the largest military complexes, with their nearly unlimited assets, cannot completely protect the security their data bases, how much greater is the danger that impoverished health systems are exposed to? Moreover, it is important to raise awareness on the importance and irreplaceability of medical confidentiality.
The 4th century B.C. father of medical ethics, Hippocrates, simply states in his Oath: "What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself, holding such things shameful to be spoken about." According to a new formulation, this now reads: "Whatever in connection with my professional practice or not in connection with it I may see or hear in the lives of my patients which ought not be spoken abroad, I will not divulge, reckoning that all such should be kept secret." It is somewhat surprising that the Charter for Health Care Workers does not mention this subject.
The Croatian codex of medical ethics, emphasizing modern views, states: "All information in connection with an illness and/or the condition of a patient is considered to be a matter of physician confidentiality. A physician is required to keep it from those close to the patient, if the patient thus designates, even after his death, except in the event that maintaining physician confidentiality would endanger the life and health of other people. Maintaining physician confidentiality also extends to the conditions under which data on the patient are transferred, processed and stored in telematic systems in medicine and health care." Obligations of Medical Confidentiality
In order for a physician to treat a patient, he must necessarily invade the patient's privacy. Under regular conditions and circumstances, this occurs at the request or with the consent of the patient himself, and cannot be termed an invasion but a necessity in order for the physician to serve the patient genuinely. To counter balance such an invasion into the patient's life, the physician assumes the obligation of silence and protection of the good of the patient. Due to growing self-confidence - autonomy and due to increased possibilities for jeopardizing a patient's privacy, it is important to emphasize and point out the obligation of silence and restraint. The gravity of an obligation is regularly measured according to the type and degree of the confidentiality of the communicated information.
From the theological aspect, the obligation of maintaining confidentiality issues from God's Eighth Commandment, as pointed out by Pope Pius XII in a speech to physicians, in which he said: "Among the obligations that issue from the Eighth Commandment, it is also necessary to include the maintenance of professional confidentiality, which should serve not only private interest but even more so the common good."
In the new Catechism, besides citing the Eighth Commandment, "You shall not bear false witness against your neighbor" (Ex 20, 16), a text from the Gospel is added: "It was said to the men of old, 'You shall not swear falsely, but shall perform to the Lord what you have sworn'" (Mt 5, 33). Obviously, the concept of swearing in the broad sense also includes here the concepts of oaths and promises. Further in the Catechism, it is stated: "Even if not confided under the seal of secrecy, private information prejudicial to another is not to be divulged without a grave and proportionate reason" (No. 2491). Moreover: "Everyone should observe an appropriate reserve concerning persons' private lives" (No. 2492). In a passage on respecting the truth, the Catechism speaks expressly about our topic: "Professional secrets - for example, those of political office holders, soldiers, physicians and lawyers - or confidential information given under the seal of secrecy, must be kept ..." (No. 2491). The obligation of safeguarding the contents of a secret differs according to the type and nature of the secret:
1. A natural secret implies a grave obligation of silence. Such an obligation issues equally ex iustitia et caritate, from justice and love. The gravity of the obligation depends upon the gravity of the information. It is based on the Golden Rule in its negative expression: Do not do unto others as you would not have them do unto to you! Whoever breaks his silence in the area of a natural secret, and thereby inflicts material and moral damage, is liable ex iustitia - from justice to render material and moral compensation.
2. A promised secret. The gravity of the obligation depends upon two components: on the nature of the subject that someone has confided and on the promise made by the person who received it. Depending whether the subject of confidentiality is serious or not, the obligation is serious or not. In this event, one does not speak about the obligation of silence ex iustitia - from justice but ex fidelitate - from faithfulness to a word given, a promise.
3. A contracted secret - especially a professional secret - always obligates ex iustitia et caritate - from justice and love. The damages inflicted due to a breach of confidentiality can be determined legally, and also bring moral guilt with them. A contracted secret has its ultimate foundation in a natural secret. The obligation issues from the obvious contracted significance of the mutual relationship of a professional individual and a client. Only under the assumption of security, guaranteed expressly or tacitly, that his information will not be disclosed, does a client confide in a professional. The obligation is serious because the professional has come to the knowledge solely on the basis of his professional service, and not in any other manner.
Professional confidentiality represents a social guarantee and is irreplaceable in practice, in the performance of many professions and offices. Consequently, it does not require any contract whatsoever, express or tacit, for silence to be maintained. Breach of such confidentiality represents an injury to mutual justice and love, and requires compensation, both moral and material. Thus, justice fulfills its task of love. Establishing respect for the dignity and privacy of the individual humanizes the society and leads to a community of persons, where a person understands, respects and loves another in the specificity of his being as a person. Limits of Medical Confidentiality
Although respect for professional confidentiality is necessary in principle for normal development and coexistence in society, especially for the practice of certain professions such as that of the physician, professional confidentiality is not absolute. It does not always obligate at all costs. In some circumstances, the personal rights and the good of the individual can come into conflict with the rights and good of society, or third persons. Professional secrets are prima facie obligations - binding insofar as they are not in conflict with any other equal or greater value.
This aspect was pointed out by Pope Pius XII: "Also in this area, conflicts can occur between the private and the public good, i.e. between various elements and aspects of the same public good; conflicts in which it is sometimes very difficult to measure and weigh the pros and cons fairly among the reasons to speak or to remain silent. In such a complex situation, the conscientious physician seeks norms in the fundamental principles of Christian ethics, which will help guide him on the right path. While they confirm, particularly in the interest of the common good, the obligation of the physician to maintain professional confidentiality, they are not ascribed absolute value. Indeed, it would not be for the common good if such confidentiality were to be placed in the service of crime or deception."
The Catechism emphasizes the value and obligation of maintaining professional confidentiality "save in exceptional cases where keeping the secret is bound to cause very grave harm to the one who confided it, to the one who received it or to a third party, and where the very grave harm can be avoided only by divulging the truth" (No. 2491). The fact that professional confidentiality is of a relative and not absolute character has as a consequence a multitude of various cases in which the obligation of silence was called into question. In a systematic presentation on the limitations of the obligation of keeping a confided secret, or even on the duty of divulging known things, the following cases or circumstances are cited: 1. Consent by the client. When the client himself offers or consents to bring something into the open, the obligation of silence is thereby resolved, according to the well known and accepted principle: Scienti et consentienti non fit iniuria - to one who knows and consents, injustice is not inflicted. The patient himself may free the physician from the obligation of mandatory confidentiality and ask him to inform those affected by it. Sometimes, a patient could request a written report of his clinical state for his employer, insurance company or attorney. An individual is authorized to dispose of his own goods:
a) Under the assumption, certainly, that he is competent: of age, of sound mind and psychologically healthy;
b) In cases when the person in whom he has confided and from whom he has sought advice and assistance must seek assistance from another professional, his colleague. In such cases, client consent is assumed or can be expressly sought. First, this is for the benefit of the client. Second, the other professional, who is asked for advice is bound by the same mandatory silence as the first. 2. The common good. Confidentiality is a general rule but the needs of the community can sometimes have precedence over the good of the individual and over the risk that disclosure of the secret could have for him. It is a general rule that the greater the harm to the community, the less obligation there is to remain silent, and the greater the obligation for disclosure. Some of these limits are regulated legislatively, such as the reporting of contagious diseases or if an individual represents a danger to others at his place of work (the driver of a public vehicle). 3. Harm to third persons. If it is obvious that the keeping of a secret would cause certain and serious harm to innocent individuals, a person in possession of knowledge is not bound by silence. In this area, casuistics are abundant and complicated; some cases are anticipated and resolved by law. If evil has already been committed, disclosure would no longer be for the purpose of defense but for vengeance, and as such it is not permitted. 4. The patient and the family. Due to the intimacy between a physician and patient during treatment, a physician faces more than a little temptation regarding telling family members about a patient's condition. It will very often be necessary to inform them to facilitate treatment or in order for them to protect themselves from possible contagion. In principle, others do not have the right to invade a patient's privacy, especially if the patient explicitly declares that this is his wish.
There are also many questions in this area that affect minors and so-called adult minors (contraception, abortion, pedophilia, child abuse etc.). When and in which cases will a physician keep a matter between himself and the patient? Will he inform the parents of serious matters? In this area, there is not a little confusion regarding public opinion and the law. It is not uncommon to act despite and against the law, under pressure from public opinion, tending toward that which is currently in fashion. Thus, in some countries a physician is considered responsible if he prescribes a medication for a minor without the knowledge of the parents, but at the same time he is required, without the knowledge of the parents, to prescribe various types of contraceptive and abortive pills. From the moral standpoint, parents, guardians and the physician cannot free themselves of their responsibility, although it will be more difficult for them tomorrow than yesterday. 5. Harm to the professional. If a given professional, a member of a profession that guarantees secrecy, becomes aware that a client, consciously or not, intends to inflict serious harm upon him, he is released from confidentiality, for two reasons:
a) First, according to the principle of the right to self defense. If he is certain that silence would cause him relatively serious harm, such as that which can be predicted due to disclosure to the detriment of the client, the professional must disclose the secret, within precisely limited frameworks;
b) Second, from the motive of individual or common good. If such professionals must keep silent, who would want to go to such a social service? This would endanger the good of the individual and the good of the community. If a given professional can assume the risk, the harm is not great and a third person will not suffer, he may do so, not from duty but from the love of his clients, and from respect for confidentiality. 6. The benefit of the professional. A daily question is whether a physician is permitted to use knowledge from individual cases for his own benefit: the teaching and training of future physicians, scientific research, publications, patents, professional advancement, and certainly the acquiring of material profit. Through his concern and investment, such knowledge has somewhat became his intellectual property and he is permitted to use it. However, he must exclude any possibility of inflicting harm or identifying the patients in question. 7. Mandatory reporting. Knowledge acquired in confidence is very demanding and delicate. More than the letter of the law, it should be entrusted to the sensitivity, moral maturity and discretion of a given professional. The act of the disclosure of certain secrets can cause personal unpleasantness and difficulties, dramas and tragedies, not only of a material and social nature but even emotional, including those potentially dangerous to life. In all cases when a physician must disclose a confidence, according to his conscience and duty to the authorized office, parents or spouse - current or future, that he has learned under confidentiality:
a) He shall first seek a way to eliminate the risk to others, some type of treatment or isolation, especially regarding contagious or fatal diseases - without harming the patient's honor or reputation and without discriminating against the patient;
b) If that is not possible, he shall use all his skill to make the patient consent for him to notify those concerned about his condition (parents, caregivers...) and those who have the right to know that they are in the zone of risk;
c) If this does not succeed, he is released from the obligation of confidentiality. 8. Termination of obligation. When the subject of confidentiality becomes public - de iure, by a court verdict or - de facto, because it has become generally known, the obligation of silence is terminated. Commentary
This presentation was on the theological aspects of professional-physician confidentiality, on trust in the relationship between the physician and patient, past and future. A physician and medical professional must act within the aspects of the society, positive and negative, in which they live. Today's ethical-moral consciousness has become more sensitive and attentive to the personal values of confidentiality, intimacy and privacy. This sensitivity will be even greater tomorrow. At the same time, the possibilities for violation have become more sophisticated and aggressive, through numerous technical and psychological methods: wiretapping, extortion, various tests, hidden cameras etc. Several especially negative phenomena should be pointed out (circumstantiae), that are already present today and will be more evident tomorrow, despite which the physician must safeguard the confidence of patients, such as the following:
- In public life, there is a dominant impulse for publicity, a yearning for sensationalism, and technology makes this abundantly possible, all for the money that flows behind the curtain of the mass media;
- A general public devaluation, abuse and mockery of the intimacy and holiness of the conscience of the individual, family and groups, professions and legal persons;
- A lack of minimum consideration, compassion, and even pity, with the chosen victim of public attack exposed in the tiniest details of his private life;
- Among individuals thrust into the public eye, there is an evident lack of self respect, a lack of consideration, modesty and shame;
- Dishonoring oneself is accepted, the grotesque exhibition of one's privacy to the unknown and merciless lust of the curious via the press and Internet pornography;
- Individual persons, having lost their personal honor and dignity, have no consideration toward others, to at least protect them from their difficulties, perversions and raw drives;
- One's momentary pleasures are considered more important than adhering to the principle of do no harm on all levels and in all dimensions of the personal integrity of each individual, from childhood to old age.
If someone does not value and respect himself, he will not respect others. How can he expect and demand that others respect him? In this domain, laws and codices cannot regulate everything that is desirable, even that which is necessary, or that which is actually the heritage of home training. However, ethics and morality cannot remain silent about these matters.
A physician knows that he is in the service of life, in the service of the integral life of a person: physical, intellectual, social and spiritual-moral. A physician knows that he can never ignore the personal dignity of the patient for any reason. Although the relationship between a physician and patient has greatly changed, by their nature one and the other remain beings of encounter, beings of relationships. Therefore, at a time of a decline in elementary values in interpersonal communication, including confidence and silence, practitioners of the noble art of medicine - guardians and servants of life - are called to preserve and cultivate a noble virtue, the foundation of their calling - medical confidentiality. Zagreb, June 2002 |
