case study confidentiality statement

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Raising concerns

1. Introduction

In recent years, in some areas of psychotherapeutic/psychiatric practice, such have been the constraints placed on the publication of case studies that, on the grounds of protecting client identity, their use has all but died out. One commentator recently described those case studies that continue to be produced in the above climate as “bland and anaemic” [ 1 ] . It is argued by some opponents of case studies that it is preferable to focus on reporting the findings of scientific research rather than on the results of individual cases.

However, as one advocate of case studies has pointed out, it is the case histories of 100 years ago that we remember today — “Anna O” being a case in point — rather than the science of the day, which is now seen to be at least partly spurious [ 2 ] . The Human Givens Institute believes that, given the value of the case study, its use should continue, providing that in each case properly informed consent is obtained and effective steps are taken to preserve client confidentiality/privacy, as set out in these guidelines.

Therapists should also note that it is possible to illustrate an aspect of therapy and its underlying principles and application without direct reference to an actual therapeutic episode (which is what a case study does). This approach avoids the issue of privacy and consent.

In general, human givens practitioners produce case studies (i.e. accounts of particular therapeutic episodes) to reflect successful treatments and publish these to illustrate the approach used and the outcome for the benefit of colleagues. Alternatively and equally valuable are accounts of therapy which have not succeeded.

These guidelines are mainly concerned with the kinds of case studies that can be defined as narrative case studies (or case histories) where the content is presented as events in an unfolding plot with participants (patient, therapist, significant others) and actions (presenting situation, treatment, outcome, etc).

Case studies are seen by the Human Givens Institute as valuable teaching tools in the context of courses of study, etc. Their purpose is to illustrate the successful application, or otherwise, of a therapeutic technique or approach.

A distinction is to be made between narrative case studies, as described above, and brief case illustrations/examples used in the context of verbal interaction during training, supervision and indeed therapy (e.g. ‘My friend John’ stories). The latter should be sufficiently condensed and generalised that they neither reveal confidential material nor require permission from anyone involved. Longer and more detailed case studies, however, need to be carefully anonymised and also require the consent of the client (see below).

In practice, case studies should include:

A description of the client’s presenting problem and the initial context/circumstances of their case. NB: The focus should be on that which is essential to foster the reader’s understanding; incidental details which do not contribute directly to the reader’s understanding should be omitted;
A description of the ‘trigger’ incident, for example a traumatic event, if applicable;
The client’s symptoms and the resulting consequences/sequelae, for example detrimental effect on the client’s relationships and constraints on their mobility as a consequence of, for instance, trauma;
In short, case studies should focus on a description of the problem and the relevant circumstances, the consequences for the client and/or others, the treatment provided and the outcome.

2. The Ethical Dimension

A) informed consent to case study.

If, at the end of therapy with a particular client, a therapist decides that it will be useful to produce a case study (i.e. an anonymised description of the therapeutic episode in question), they must seek the client’s written permission, taking care to explain that their identity will be protected by the means outlined in these guidelines (see below);
A case study consent form is available on the professional members' area of this website and should be used for the purpose of obtaining the written permission of clients. Completed consent forms should be retained with client records;
If permission is given, the therapist should produce the case study, suitably altered to eliminate any possibility of identification, and submit for publication. NB See notes on the protection of client identity and publication of case studies below;
As part of the above process, it should be made clear to clients that they can, if they wish, see a copy of the proposed case study before it is submitted for publication. Where a client requests sight of a completed case study prior to giving permission, the therapist must provide them with a copy together with a copy of the case study consent form. Under no circumstances must a case study be published without the client’s written consent.

b) The Protection of Patient Identity

It is of paramount importance that the identity of clients who are the subject of case study reports is protected. The following guidelines and examples are to be observed by those writing and publishing case studies. Whilst some of these will be familiar precautions, others may be less obvious.

To minimise the risk of identification, clients' names and the names of other participants in the case must be changed;
Incidental information, such as the occupations of clients, their relatives or other key characters must be changed or, if they do not lend meaning to the narrative, omitted;
Reference to locations or organisations that might assist identification must be changed or, where not essential to the narrative, omitted altogether. Examples here could be towns, other countries which the patient might have come from or visited, organisations used by the patient, etc.;
It is good practice for therapists to consult their supervisor as to whether any proposed case study conforms to these guidelines, particularly the sections relating to informed consent and the protection of client identity.

In addition, where it is considered appropriate for the further protection of identity:

The gender of patients and other participants in the case can be changed;
The content of several similar cases can be combined to form a single case study, provided that the above guidelines are followed.

c) Publication of Case Studies

It is likely that the great majority of case studies produced by human givens therapists will be intended for inclusion in a human givens publication, for example a newsletter, journal, book or the HGI website. Consequently, the case studies concerned will be subject to the scrutiny of the relevant editor(s). However, where a case study is intended for a non-human givens publication such as a newspaper, newsletter magazine, journal, book, website, etc, the therapist concerned must consult with their supervisor in order to confirm that properly informed consent has been obtained and that the client’s identity has been protected in accordance with the guidelines set out in this document. If in doubt, the supervisor and/or the therapist must consult with the Registration and Professional Standards Committee (RPSC).

The guidelines concerning informed consent and the preservation of client identity also apply to audio or video recordings of treatment provided by human givens therapists intended for publication on websites such as YouTube, or in any other format.

d) The Responsibility of Editors and Publishers

Those responsible for editing and publishing the Human Givens journal, newsletters, books, website content, etc must satisfy themselves as far as possible through communication with therapists submitting case studies for publication, that informed consent has been properly obtained and that the possibility of a patient being identified has been eliminated through adherence to the above guidelines.

e) Clean Intentions

The Human Givens Institute suggests that therapists carefully examine their motives and intentions before producing case studies for publication. For example they should ask themselves the following question as it relates to their own needs:

‘Am I seeking to gain attention, raise my status or gain “payment” in any other way through the process, or am I on balance, seeking to extend human knowledge?

Also apply the ‘Can you look them in the face?' test:

‘Would I be able to show the case study to my patient in the knowledge that the account is fair and accurate and that their identity is adequately protected?'

f) Example of a Suitably Adapted Case Study

Scenario (necessarily fictitious for these purposes, but intended to represent an actual case).

Rob, a 32 year old retail manager is mugged whilst using his debit card to withdraw cash from the ATM at his local bank in Wigan last June. As a result he suffers severe PTSD symptoms (avoidance of banks, intrusive feelings and thoughts, angry outbursts, etc) and time off work which is leading to problems with his employer. In addition, his relationship with his 30 year old wife, Sylvia, a dental hygienist at a local practice, is being put under considerable strain. Rob's relationship with his six-year-old twin sons Alan and David is being adversely affected. Description of treatment and successful outcome along the same lines.

Case Study (derived from the above scenario and designed to protect client identity)

Alison, in her thirties and a mother of two, is mugged in broad daylight on her way to the post office. As a result she suffers severe PTSD symptoms (avoidance of the local shops, including the post office, intrusive feelings and thoughts, angry outbursts, etc) and time off work which is leading to problems with her employers. In addition, her relationship with her husband, John is being put under considerable strain and she is finding it difficult to deal with her daughters because of the angry outbursts. Description of treatment and successful outcome along the same lines.

g) The Health Professions Council’s View on Client Confidentiality

The following extract summarises the position of the Health Professions Council (HPC) with regard to the confidentiality of clients. The HGI endorses the principles contained in this statement, both in relation to case studies and with regard to wider issues of client confidentiality.

“Standards of conduct, performance and ethics — duties of HPC's registrants

“2. You must respect the confidentiality of service users. You must treat information about service users as confidential and use it only for the purposes they have provided it for. You must not knowingly release any personal or confidential information to anyone who is not entitled to it, and you should check that people who ask for information are entitled to it. You must only use information about a service user:

to continue to care for that person; or
for purposes where that person has given you specific permission to use the information.

You must also keep to the conditions of any relevant data protection laws and always follow best practice for handling confidential information. Best practice is likely to change over time, and you must stay up to date.”

Notes. 1. All in the Mind, BBC Radio 4, April 2007 2. Ibid.

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Shhh! Tips for Writing a Case Study When Confidentiality Is Required

Jul 7, '16 / by Mark Loehrke

The beauty of case studies is that they’re not hypothetical. They’re real – stories about real people and real businesses and real impact. But how do you go about writing a case study that feels real when you’re not allowed to divulge all the details?

This is an issue that comes up frequently in the financial services and health care industries, where strict regulations and privacy provisions often limit the content and potential use of a case study.

What you want is to describe a real-world business case that allows the reader to see him or herself in the story:

This is a problem (just like ours!) that a company (just like us!) ran into, and this is how they solved it (just like this company can do for us!) .

But what you’re stuck with is a great story to tell and very few colors to work with and no realistic way to sell it beyond a very small audience. No naming names, no social media, no press release.

So is this still a story worth telling, what with your tree falling in the forest and all?

Avoid fluff

Resist the urge to compensate for a lack of details by adding filler to pad things out. The key to writing any good case study is to tell a good story (which starts with a good interview , by the way), but good doesn’t have to mean overloaded with unnecessary description.

Your available “real estate” limits the number of details you can provide anyway, so don’t stress over the limitations you face. The heart and soul of your case study is still the underlying business problem and how you solved it – so dive right in.

Think differently about your audience

The point of including specific names and numbers when writing a case study is to build credibility with the reader. If you’re unable to include this information, then consider targeting your case study to readers who already know and trust you.

This might be prospects who are far along in the sales cycle. These bottom-of-the-funnel leads are likely more focused on making a business case for your solution than they are on being wowed with big names and huge statistics.

Similarly, existing clients could be a great audience for blind case studies that explore new products or services – giving you a perfect opportunity to up-sell and cross-sell these relationships.

Get the language right

If you can’t divulge specific data, you can still build that desired credibility by making sure the rest of the details in your case study are 100% spot-on.

Dig deep into the challenges the case study client faced and why those challenges were so critical. Hit hard on the unique solution you delivered and the impacts of that solution. Make sure your language mirrors the language your target audience uses, so that your story still resonates powerfully for the reader.

Written by Mark Loehrke

Throughout my career, I've covered a huge range of topics – from asset-liability management to up-and-coming jazz artists. I know what it takes to sell an idea, and I write content that informs and entertains in equal measure.

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Confidentiality in the Age of AIDS: A Case Study in Clinical Ethics

Print this case study here: Case Study – Confidentiality in the Age of AIDS

The Journal of Clinical Ethics, Fall 1993

Martin L Smith, STD, is an Associated in the Department of Bioethics, Cleveland Clinic Foundation, Cleveland, Ohio.

Kevin P Martin, MD is a Child and Adolescent Psychiatrist in the Department of Mental Health, Kaiser Permanente, Cleveland.

INTRODUCTION

AIDS (acquired immunodeficiency syndrome), now in pandemic proportions, presents formidable challenges to health-care professionals. The human immunodeficiency virus (HIV) infection and its related diseases have also raised a number of thorny ethical questions about government and social policy, health-care delivery systems, and the very nature of the physician-patient relationship. This article presents the case of an HIV-positive patient who presented the treating physician, a psychiatrist, with an ethical dilemma. We provide the details of the case, identify the ethical issues it raises, and examine the ethical principles involved. Finally, we present a case analysis that supports the physician’s decision. Our process of ethical analysis and decision making is a type of casuistry,1 which involves examining the circumstances and details of the case, considering analogous cases, determining which maxim(s) should rule the case and to what extent, and weighing accumulated arguments and considerations for the options that have been identified. The goal of this method is to arrive at a reasonable, prudent moral judgement leading to action.

The patient, Seth, is a 32-year-old, HIV-positive, gay, white male whose psychiatric social worker had referred him to a community-mental-health-center psychiatrist for evaluation. He had a history of paranoid schizophrenia that went back several years. He had been functioning well for the last two years as an outpatient on antipsychotic medications and was working full time, socializing actively, and sharing an apartment with a female roommate.

The social worker described a gradual deterioration over several months. Seth had become less compliant with his medication and with his appointments at the mental-health center, had lost his job, had been asked to leave his apartment, and was living on the streets. He was described as increasingly disorganized and paranoid. His behavior was increasingly inappropriate, and he had only limited insight into his condition.

On examination, Seth was thin, casually dressed, slightly disheveled, and with poor hygiene. His speech was spontaneous, not pressured, and loose with occasional blocking. [That is, he spoke spontaneously, he could be interrupted, and his speech was unfocused with occasional interruption of thought sequence.] His psychomotor activity was labile [unstable]. His affect was cheerful and inappropriately seductive, and he described his mood as ”mellow.” He denied having hallucinations, systematized delusions and suicidal or homicidal ideation. He admitted having ideas of reference [incorrect interpretation of casual incidents and external events as having direct reference to himself], was clearly paranoid, and at times appeared to be internally stimulated. He made statements such as: “They’re blaming me for everything,” and “I’m scared all the time,” although he was too guarded or disorganized to provide more detail. His cognitive functioning was impaired, and testing was difficult given his distracted, disorganized state. His judgement was significantly impaired, and his insight was quite limited.

At the time of the evaluation, Seth indiscriminately revealed his HIV-positive status to the staff and other patients. He claimed he had been HIV positive for five years, and he denied that he had developed any symptoms of disease or taken any HIV-related medications. He was not considered reliable, and the staff sought confirmation. After he provided the location and approximate date of his most recent HIV test, the physician confirmed that the patient had been HIV positive at least since the test, about a year earlier.

When asked, Seth stated that the was not currently in a relationship. He appeared to be disorganized and could not name his most recent sexual partner(s). He could not remember whether he had been practicing safer sex and whether he had informed his partners of his HIV positive status.

In addition to the information he obtained during the evaluation, the psychiatrist, by chance, had limited personal knowledge of the patient. Through his own involvement as a member of the local gay community, the psychiatrist had briefly met the patient twice – once while attending an open discussion at the lesbian-gay community center, and later, at a worship service in a predominantly lesbian-gay church. The physician recalled that Seth had seemed to be functioning quite adequately, at least superficially. He was somewhat indiscriminately flirtatious, his behavior was otherwise appropriate, and he did not appear to be psychotic or disorganized in his thinking. He was not overtly paranoid and did not publicly reveal his HIV-positive status.

Through the church, the psychiatrist had also become acquainted with Maxwell and Philip, who were partners in a primary sexual relationship. Before Seth’s decompensation [deterioration of existing defenses, leading to an exacerbation of pathologic behavior], but after he was known to have tested HIV positive, Seth and Maxwell had been lovers. Maxwell left Philip and moved in with Seth for about two months, but then left Seth and returned to Philip around the time of Seth’s decompensation.

The psychiatrist was not privy to details of Maxwell and Seth’s or Maxwell and Philip’s sexual practices. He did not know of the HIV status of Maxwell or Philip, or whether either had ever been tested. In addition, he was unaware of whether Maxwell or Philip know of Seth’s HIVpositive status at the time of Maxwell’s relationship with Seth, or at any time thereafter. During the evaluation, Seth did not recall having met the psychiatrist, nor did he mention his relationship with Maxwell.

Seth agreed to enter a crisis stabilization unit and to resume treatment with antipsychotic medications. Free to come and go at will during daylight hours, he left the unit on day two, failed to return, and was lost to follow-up. His mental status had not changed significantly before he left the crisis unit.

In this case, the physician’s duty to maintain physician-patient confidentiality conflicts with his duty as a psychiatrist to warn third parties at risk. Clearly, a patient’s status as HIV positive is a matter of confidentiality between doctor and patient. Just as clear is the risk for third parties to whom the patient may pass the virus via sexual intercourse. It is unknown whether everyone infected with HIV will develop AIDS, or how many months or years may intervene between infection and the appearance of full-blown AIDS. However, once AIDS develops it is always fatal.2 Therefore, there is a potentially lethal risk to a person having intercourse, particularly without employing safer sex-practices, with another infected with the HIV virus.

This ethical conflict raises two questions. Is it permissible to violate confidentiality to warn a third party at risk? Is there a duty to violate confidentiality to warn a third party at risk? The potential benefit to the third parties must be considered, as well as the strength of the principle of confidentiality in the patient-physician relationship. There is also wider societal consideration as to how breaches of confidentiality, even for good reasons, will affect voluntary testing and seeking of prophylactic treatment by HIV-positive persons. This societal consideration must be weighed against the benefit to the individual third party of knowing the risk and then choosing to be tested and treated and choosing to be tested and treated and choosing to take precautions against infecting others.

In this case, another issue arises from the fact that the physicians of at least one third party who may have been placed at risk possibly without his knowledge, was obtained through personal knowledge, outside the professional relationship. Is it appropriate to bring this information into the clinical setting, particularly because it is so central to the primary ethical issue? Does the physician have an obligation to act on this information?

Finally, two additional sets of issues complicate this case. First, the patient’s decompensation and disappearance necessitate the physician’s choosing a course of action without patient consent or cooperation, and with patient-supplied information that is incomplete and probably unreliable. Second, a breach of confidentiality could greatly damage the physician’s position as a psychiatrist and a trusted member of the gay community, offering assistance directly to some and referral to many others. Given these issues, what should the physician do?

BACKGROUND DISCUSSION

Some background information will be useful in analyzing the ethical issues of the case. This information includes basic ethical values and norms, and legal mandates and opinions about confidentiality, the duty to warn, and HIV/AIDS reporting.

Whether privacy is viewed as a derivative value from the principle of autonomy or as a fundamental universal need with its own nature and importance,3 privacy, and the associated issue of confidentiality, is generally accepted as essential to the relationship between physician and patient. The purpose of confidentiality is to prevent unauthorized persons from learning information shared in confidence.4 Stated more positively, confidentiality promotes the free flow of communication between doctor and patient, thereby encouraging patient disclosure, which in turn should lead to more accurate diagnosis, better patient education, and more effective treatment.

The Hippocratic Oath is evidence of the long-standing tradition of confidentiality in Western though: “What I may see or hear in the course of treatment… I will keep to myself, holding such things shameful to be spoken about.” More recently, the American Medical Association,6 the American Psychiatric Association,7 the American College of Physicians, and the Infectious Diseases Society of America8 have reaffirmed the right of privacy and confidentiality, specifically for HIV-positive patients. Without the informed consent of the patient, physicians should not disclose information about their patient. The Center for Disease Control also recommends that patient confidentiality be maintained, because the organization believes that a successful response to the HIV epidemic depend on research and on the voluntary cooperation of infected persons.9That is, the interests of society seem best served if the trust and cooperation of those at greatest risk can be obtained and maintained.10

Within the complexities of clinical care, should patient confidentiality be regarded as absolute, never to be breached under any circumstances (as claimed by the World Medical Association in its 1949 International Code of Medical Ethics11)? Or should confidentiality be regarded as a prima facie duty? (That is, should it be binding on all occasions unless it is in conflict with equal or higher duties?12)

Most commentators and codes conclude that patient confidentiality is not absolute and, therefore, it could – and even should – be overridden under come conditions.13 In other words, in a specific situation in which patient confidentiality is one value at stake, the health-care provider’s actual duty is determined by weighing the various competing prima facie duties and corresponding values, including confidentiality. (As might be expected, not all authors accept this conditional view of confidentiality and argue for its absolute quality.14) There is less unanimity about the circumstances under which patient confidentiality can be justifiably breached. More specifically for HIV-positive patients, the controversy revolves around the premise that some circumstances might create a duty to warn endangered third parties, even at the expense of confidentiality. The potential for harm to HIV-positive patients through breaches of confidentiality is great. Discrimination, isolation, hospitality, and stigmatization are all too real for these patients when their HIV-positive status has become known to others.15 Further, societal harm is possible if these patients – who might ordinarily seek medical attention voluntarily – refrain from doing so, knowing that professional breaches of confidentiality may ensue. Without ignoring this potential societal harm, the majority opinion of professional codes and of ethical and legal experts16 foresee the possibility of a duty to warn through discrete disclosure, especially if others are in clear and imminent danger if the patient cannot be persuaded to change hi behaviors or to notify those at risk of exposure.

Public health regulations often reflect the same conclusion – that confidentiality can be compromised under certain circumstances – and therefore mandate reporting HIV-positive and AIDS patients to public health authorities. Patient confidentiality is not to be upheld so strictly that it obviates an ethically justified (and usually legally mandated) duty to report such cases to authorized health agencies. Those who support such public policies view society’s right to promote its health and safety, and the need for accurate epidemiological information, to be at least as important as an individual’s right to privacy and confidentiality.

In trying to balance patient confidentiality with other professional values, the California Supreme Court decision in Tarasoff v. Regents of the University of California17 has become a guideline for other courts and health-care professionals (although technically this decision applies to only one state and specifically addresses a unique set of circumstances). In this famous and controversial case heard before the California Supreme Court in 1976, the majority opinion held that the duty of confidentiality in psychotherapy is outweighed by the duty to protect an intended victim from a serious danger of violence. The court explained the legal obligation to protect and the potential duty to warn as follows:

When a therapist determines, or pursuant to the standards of his profession should determine that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more various steps, depending upon the nature of the case. Thus, it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever steps are reasonably necessary under the circumstances.18

Regarding the limits placed on confidentiality under these conditions, the court stated: “The protective privilege ends where the public peril begins.” This “Tarasoff Tightrope” identifies for the professional the dual duties of promoting the well-being and interests of the patient and protecting public and private safety.

Given the general jurisdictional autonomy of each state, the duty to protect and the potential duty to warn as adopted in California has been applied differently in different states.20 Although most commentators assume that Tarasoff is relevant for sorting out the issue of confidentiality relative to HIV-positive patients, this assumption is not universally accepted.21

Without a state statute or court case that specifically addresses the tension between patient confidentiality and the right of others to know whether they may have been exposed to HIV infection, and given the conundrum of legal principles relating to AIDS confidentiality, it is unclear as to who must be warned and under what circumstances.22 This lack of clarity is in indication that, in practice, the professional duty to warn is not absolute but always conditioned by the circumstances of the case (that is, the duty to warn is a prima facie value).

The above paragraphs describe an emerging consensus among health-care professionals who face confidentiality dilemmas, although universal agreement has not been fully achieved. Further, this emerging consensus and its contributing principles by no means provide easy answers to ethical quandaries. Each case, with its own specific set of relevant circumstances, must be analyzed and judged individually. Such an analysis of the presented case now follows.

AN ANALYSIS

Seth’s case, perceived as a dilemma by the psychiatrist, could be brushed aside easily if the information obtained outside the therapeutic relationship was simply ignored. But the lethality of HIV infection makes it difficult to dismiss the information either as irrelevant or inadmissible for serious consideration. Had the information been obtained by unethical means (for example, by coercion or deception), a stronger justification for not using the information might be made. Such is not the situation. Without reason to ignore this information, the psychiatrist must incorporate this “data of happenstance” into his decision. To do so, of course, places him precisely at the crossroads of the dilemma: to uphold confidentiality, to warn the third party, or to create an option that supports the values behind these apparently conflicting duties.

Several factors ethically support both a breach of confidentiality and the physician’s duty to warn and protect the third party: the emerging professional consensus that confidentiality is not absolute; the known identity of a third party who stands in harm’s way; the risk to unknown and unidentified sexual partners of the third party; and the deadliness of AIDS. Such a combination of factors is what the professional statements noted above23 have tried to address in their allowance for limits to patient confidentiality. In this case, the risk to the known third party has already been established, but other people may be at risk, including sexual partners of the patient and those of the third party. Individuals infected and unaware will not benefit from prophylactic therapies.

An additional reason for the psychiatrist to warn the third part is the patient’s mental status, which probably renders him incapable of informing his sexual partner(s) or of consenting to the physician’s informing them. On admission, he was not able to name his partner(s), and he was lost to follow-up without significant change in his mental status. Without the decision-making capacity of the likelihood of action on the part of the patient, any warning to the third party would have to come from the physician or through public health officials notified by the physician.

But the duty to warn, incidental information, and mental status are not the only factors that need to be considered here. Patients are subject to the risks of discrimination when their HIV status is disclosed. But for a patient who has indiscriminately revealed his own HIV-positive status, the physician’s contribution to this risk of discrimination through discreet disclosure to one person may be minimal.

Also, to be considered is the societal risk that testing and prophylactic treatment of HIV-positive persons will decrease if confidentiality is not upheld. Members of the lesbian and gay community are often mistrusting of medical and mental health professionals,24 perhaps with valid reason. Mistrust, fear, and nonparticipation in voluntary programs may increase if confidentiality cannot be assured. Persons will be less likely to come forward voluntarily for education, testing, or other assistance if their well-being is threatened as a result. In Tarasoff, the court declared that protective privilege ends where social peril begins. In this case, overriding the protective privilege of the individual could lead to greater societal peril. Trust in this physician by members of the lesbian and gay community benefits individuals and the community as a whole, by improving access to medical and mental health services. A breach of confidentiality, if it became known, could damage this trust, as well as the physician’s reputation, reducing his professional contributions to the community. This professional loss would be significant.

Also, to be considered is the general knowledge of the higher risk among gay and bisexual men for HIV infection, as well as the information in the gay community as to what constitutes high risk behavior and what precautions can decrease risk of infection. Thus, we can reasonably assume that a gay or bisexual male is already aware of his risk and that of his sexual partner(s) for carrying the HIV virus. Warning a probably knowledgeable third party about the HIV-positive status may be of little benefit to the third party, while it risks the greater individual, societal, and professional harms discussed above. Regarding the risk to unknown sexual partners of the patient, whatever their number, the physician is powerless to change their fate precisely because they are unknown to him.

The duty to maintain patient confidentiality and the duty to warn third parties at risk can both be viewed as prima facie duties. In clinical situations such as the one described here, when one duty must be weighed against another to arrive at an ethically supportable solution, the weighing should take place only in the context of the given case. In this case, we found no solution that upholds all the duties; thus, a choice must be made between the two duties.

We submit that, although there is support for the physician to warn the third party, there is greater support for upholding confidentiality in this case. The individual risk of discriminatory harm from disclosure is possible, although admittedly small. Further, it is reasonable to presume the third party’s awareness of his risk and of the risk to his sexual partner(s) of carrying the HIV virus, and thus, his awareness of the need for appropriate precautions.

Even more persuasive is the peril to the local gay community and the wider society if a breach of confidentiality increases mistrust of the healthcare system and decreases the effectiveness of this particular psychiatrist to provide quality professional care. In this case, the confidentiality of the physician-patient relationship should be maintained.

What has been presented here can serve as a model for ethical decision making within the complexities of clinical care. As cases and their accompanying ethical questions arise, the details of each case should be gathered. Any tendency to label the case prematurely as a particular type (for example, a duty-to-warn case) should be resisted. Such a label can divert attention from relevant details that make each case unique. In examining the facts of the case and judging their significance, the values and duties at stake can be identified. If necessary and practical, background material and analogous cases should be researched. Ethical dilemmas present persons with hard choices. While several solutions may have some ethical support, few can be labeled as perfect solutions. Often, choosing one solution over another leaves behind an ethically significant value and regrettably may even produce harm. The circumstances described here presented the psychiatrist with a hard choice and no easy answer. We have suggested an ethically supported solution, but we found no perfect solution for the dilemma.

1. A.R. Jonsen, “Casuistry as Methodology in Clinical Ethics,” Theoretical Medicine 12 (1991): 295-307. 2. J.W. Curran, H.W. Jaffee, A.M. Hardy, et al., “Epidemiology of HIV Infection and AIDS in the United States,” Science 239 (1988): 610-16. 3. T.L. Beauchamp and J.F. Childress, Principles of Biomedical Ethics (New York: Oxford University Press, 1983). 4. W.J. Winslade, “Confidentiality,” in Encyclopedia of Bioethics, ed. W.T. Reich (New York: Free Press, 1978). 5. L. Walters, “Ethical Aspects of Medical Confidentiality,” in Contemporary Issues in Bioethics,3rd edition, ed. T.L. Beauchamp and L. Walters (Belmont, Calif.: Wadsworth, 1989). 6. Council on Ethical and Judicial Affairs of the American Medical Association, “Ethical Issues Involved in the Growing AIDS Crisis,” Journal of the American Medical Association 259 (1988): 1360-61. 7. American Psychiatry Association, “AIDS Policy: Confidentiality and Disclosure,” American Journal of Psychiatry 145 (1988): 541-42. 8. Health and Public Policy Committee of the American College of Physicians, and lnfectious Diseases Society of America, “A quired Immunodeficiency Syndrome,” Annals of Internal Medicine 104 (1986): 575-81. 9. Centers for Disease Control, “Additional Recommendations to Reduce Sexual and Drug-Related Transmission of Human T-Lymphotropic Virus Type I I1/L y mph adenopathy-Associated Virus,” Morbidity and Mortality Weekly Report 35 (1986a): 152-55. 10. R. Gillan, “AIDS and Medical Confidentiality,” in Contemporary lssues in Bioethics. Code of Ethics, 1949 World Medical Association,” in Encyclopedia of Bioethics. 11. W.O. Ross, The Foundations of Ethics (Oxford, England: Clarendon Press, 1939). 12. Beauchamp and Childress, Principles of Biomedical Ethics; Winslade, “Confidentiality”; Walters, “Ethical Aspects of Medical Confidentiality”; AMA, “Report on Ethical Issues”; APA, “AIDS Policy”; American College of Physicians and Infectious Diseases Society of America, “Acquired Immunodeficiency Syndrome”; S. Bok, “The Limits of Confidentiality,” Hastings Center Re port 13 (February 1983): 24- 31; H.E. Emson, “Confidentiality: A Modified Value,” Journal of Medical Ethics 14 (1988): 87-90. 13. M.H. Kottow, “Medical Confidentiality: An Intransigent and Absolute Obligation,” Journal of Medical Ethics 12 (1986):117-22. 14. R.J. Blendon and K. Donelan, “Discrimination against People with AIDS,” New England Journal of Medicine 319 (1988): 1022-26; L.O. Gostin, “The AIDS Litigation Project: A National Review of Court and Human Rights Commission Decisions, Part II: Dis crimination,” Journal of American Medical Association 263 (1990): 2086-93. 15. G.J. Annas, “Medicolegal Di lemma: The HIV-Positive Patient Who Won’t Tell the Spouse,” Medical Aspects of Human Sexuality 21 (1987):16; T.A. Brennan, “AIDS and the Limits of Confidentiality: The Physician’s Duty to Warn. Contacts of Seropositive Individuals,” Journal of General Internal Medicine 4 (1989): 242-46: B.M. Dickens, “Legal Limits of AIDS, Confidentiality,” Journal of the American Medical Assoclarion 259 (1988):3449-?1; S.L. Lentz. ”Confidentiality and lnformed Consent and the Acquired Immunodeficiency. Syndro111e. Epidemic,” . Archives of Pathology, & Laboratory Medicine 114 (1990):304 8; D. Seiden, “HIV ·Seropositive Patients and Confidentiality,” Clinical Ethics Report (1987): 1-8H.Zomina, “Warning Third 16. Tarasoff v. Regents of the University of California, 11Cat.3d 425,551 P 2d ht (1,976) 17. Ibid. 18. R.D. Mackay, “Dangerous. Patients: Third Party Safety and Psychiatrists’ Duties: Walking the Tarasoff Tightrope,” Medicine, Science & the Law 3Q (1990): 52-56, 19. LA. Gray and A.R. Harding, “Confidentiality Limits with Clients Who Have the AIDS Virus,” Journal of Counseling and Development 6 (1988):219-23. 20. S. Perry, “Warning Third ‘Parties at Risk of AIDS: APA’s Policy is a Barrier to Treatment,” Hospital and Community Psychiatry 40 {1989):’ i5.8-6I. 21. L.O Gostin, The AIDS Litigation Project: A National Review of Court and Human Rights Commission Decisions. Part 1: The Social Impact of AIDS,” Journal of the American Medical Association 263 (1990), ‘961-7Q 22. AMA; “Report on Ethical Issues”; APA, “AIDS Policy”; American College of Physics and Infectious Diseases Society of America” Acquired lmmunodeficiency Syndrome.” 23. L. Dardick and KE Grady, “Openness between·:Gay Persons and Health Professionals,” Annals of Internal Medicine 93 -(1 80): 115-.19; T.A. DeCrescenzo, Homophobia: A Study of the Attitudes of Mental Health Professionals toward Homosexuality. Journal of Social Work and Homosexuality 2 (198):.84): 115-36.

Print this case study here: Case Study – Gathering Information and Casuistic Analysis

Gathering Information and Casuistic Analysis

Journal of Clinical Ethics By Athena Beldecos and Robert M. Arnold

Athena Beldecos is a graduate student in medical ethics in the Department of History and Philosophy of Science, University of Pittsburgh.

Robert M. Arnold, MD is an Assistant Professor of Medicine, and the Associate Director for Education, Center for Medical Ethics, University of Pittsburgh.

In their article, “Confidentiality in the Age of AIDS,” Martin L. Smith and Kevin P. Martin present a complex case in clinical ethics. Their analysis examines a physician’s quandary when treating a mentally incompetent HIV-positive patient: whether to uphold physician-patient confidentiality or to violate this confidentiality by warning a third party. Out critique focuses on the way the problem is conceptualized and the analytic methods used to resolve the case, rather than on the solution itself. We believe that several problems in the authors’ analysis arise from a misinterpretation of the casuistic method. Furthermore, we argue that Smith and Martin present a case that is insufficiently detailed, thereby precluding the identification of all of the moral problems in the case and the development of creature solutions to the problem(s) identified. We note several reasons why there is a need to gather more information prior to determining the appropriate ethical response. Finally, we suggest ways in which similar problems in clinical ethics might be avoided in the future.

IS THIS CASUISTRY?

The authors conceive of their “process of ethical analysis and decision making” as a “type of casuistry.” Although we agree that casuistry, as outlined by A.R. Josen,1 is a potentially fruitful technique for practical ethical decision making, we believe that certain essential features of such casuistic reasoning are not clearly present in Smith and Martin’s analysis.

The power and scope of casuistry are derived not only from attention to details and careful identification of circumstances in the presentation of individual cases, but – more importantly – from the process of case comparison. Using this method, a case under moral consideration is situated in a family of related cases, whereby the casuist examines the similarities and differences between the cases at hand. The context of an individual case and how its conflicting maxims appear within that particular context are the raw materials of the case-comparison method. The relative weight of conflicting maxims in an individual case is ascertained by comparison to analogous cases. With casuistry, moral judgement does not involve a more traditional retreat to the weighing of conflicting duties or general principles. Rather, moral guidance is provided by an ever-growing body of paradigm cases that represent unambiguous instances in which moral consensus is easily obtained. It is crucial that the casuist place the case under consideration in its proper taxonomic context(s) and that she or he identify the most appropriate paradigm, whether it be real or hypothetical.

The authors do identify a paradigm case, but their analysis departs from casuistry on several interrelated points. The authors do not proceed by analogical reasoning. Had they done so, they might have discovered that their chosen paradigm is inappropriate, due to significant dissimilarities with Seth’s case. Finally, their insufficiently detailed case precludes a thorough measurement of the similarities and differences between the cases at hand. For it is in the details that an individual case may differ from a paradigm case.

The authors’ analytic method has more in common with principle-based ethics2 than casuistry. They do not use a variety of similarly situated cases to point out and balance the relevant moral maxims instead, they extract the conflicting duties and principles from their paradigm, the Tarasoff case,3 and apply them directly to Seth’s case. The authors weigh one prima facie duty “against another to arrive at an ethically supportable solution.” Furthermore, the weighing takes place “only in the context of the given case.” Thus, case comparison, an intrinsic element of casuistry, is not performed. Instead, the authors’ major goal seems to be finding and applying a sufficiently modified principle regarding confidentiality to resolve the case at hand.

WHY TARASOFF IS PROBLEMATIC AS A PARADIGM CASE

By using Tarasoff as a paradigm case in their analysis, Smith and Martin situate their case in the family of “duty-to-warn” (prevention-of-harm) cases. It is reasonable that they identify this particular taxonomy as a starting point for their analysis. However, they do not test the appropriateness of the paradigm by systematically comparing and contrasting it with Seth’s case. The authors note the uniqueness of the circumstances of the Tarasoff case and its limited applicability but nonetheless proceed to use it as a paradigm. Casuistry, however, seeks closest-match paradigms. The use of analogical reasoning would have illuminated the similarities and differences between the two cases and would have helped the authors to determine which morally relevant features a paradigm case should minimally share with its analogous cases.

In the Tarasoff case, the court held that a psychotherapist, to whom a patient had confided a murderous intent, had a duty to protect the intended victim from harm.4 This duty includes warning the third party at risk, among other interventions. The unique circumstances of Tarasoff include the imminence of fatal harm to an identified, yet unsuspecting, individual. Although the authors are correct in noting the precedent-setting value of Tarasoff, the dissimilarities between Tarasoff and Seth’s case are so numerous as to suggest the selection of another paradigm.

First, a critical aspect in Tarasoff is the prevention of future fatal harm. Based on the circumstances of the case, there is no evidence of preventable fatal harm to Maxwell. For this condition to be satisfied, the psychiatrist would have to be assured of Maxwell’s seronegativity and have evidence of a current or an intended sexual relationship between Maxwell and Seth. The preventable harm to Maxwell consists of not allowing him the opportunity to institute early anti-viral therapy or to reconsider his life goals in the face of a fatal disease. A casuist would need to assess, using a series of cases, the moral difference between the fatal harm in Tarasoff and the lesser harms in the case of Seth.

Second, Tarasoff involves a person maliciously intending to harm another person. However, there is no evidence suggesting that Seth intended to harm Maxwell. Here, a casuist might begin the analysis using a paradigm case in which a physician is aware of his HIV-positive patient’s malicious intention to infect a third party from that point, one could progressively change the variables of the case to approach the degree of moral ambiguity and complexity shown in Seth’s case. This process would culminate in a case involving sexual relationship between a patient and his partner.

Third, the notion of harm with respect to HIV transmission is quite different from the harm to be prevented in Tarasoff . One might argue that fatal harm to others is averted by informing Maxwell of his risk for HIV positivity. He can subsequently alter his sexual practices and, thus, prevent the future spread of the virus. Herein lies the problem. In Tarasoff the person warned of the harm is also the person at risk of being harmed. In the case under discussion, however, warning Maxwell might prevent harm to other, yet unnamed individuals. A case analogous to Seth’s should describe a situation in which the possible harm has already occurred and the future harm to be avoided consists of preventing future transmission. An analogous case might involve issues of confidentiality in regard to the (vertical) transmission of a fatal genetic disease that manifests itself after sexual maturity. Imagine, for example, a young man afflicted with a severe and incurable genetic disease who has proceeded to start a family without disclosing his genetic status to his wife. Does his personal physician have a duty to uphold confidentiality in this case, or should he notify the spouse so that she can make informed reproductive decisions?

Fourth, in Tarasoff , the victim was presumably unaware of the intended harm. In Seth’s case, one can argue that Maxwell knows (or can be reasonably expected to know) the potential risk of having sexual relations with a homosexual. The authors mention this factor but do not provide a way to assess its importance. To test the importance of this morally relevant fact, a series of cases in which the third party is more (or less) responsible for knowing about the possibility of risk could be used for comparison. For example, how would our intuitions about physician disclosure in this case differ if Seth were a bisexual male who did not inform his wife of his unprotected extramarital affairs with gay and bisexual men?

Fifth, Seth was reported to have publicly announced his HIV-positive status, whereas the patient in Tarasoff disclosed his intent to kill within a protected doctor-patient relationship. Does the fact that “Seth indiscriminately revealed his HIV-positive status to the staff and other patients” at a community-mental-health-center make it easier for the psychiatrist to justify a violation of confidentiality in the name of protecting potential victims? Unfortunately, there is insufficient information to determine whether Seth’s public disclosure qualifies as a fair warning to potential victims and sanctions a violation of confidentiality. This point is potentially an important difference between Tarasoff and Seth’s case. The authors, however, would need to gather additional information concerning the circumstances of Seth’s public disclosures (when they began, to whom they were addressed, and so forth) before evaluating the weight of this morally relevant feature by comparison to a similar case.

Sixth, Tarasoff does not address the issue of how the duty to uphold confidentiality might be affected when a patient’s mental competence is in question. Seth’s case involves a mentally incompetent patient presumed to be “incapable of informing his sexual partner(s) [of his HIV positivity] or of consenting to the physician’s informing them.” The circumstances of this case raise the question: Does Seth’s physician have the same obligation to respect his patient’s confidences as he would have if Seth were a mentally competent adult patient? Central to this analysis is an understanding of how the underlying justifications for respecting the confidences of incompetent patients might differ from those of competent patients. Although the authors briefly discuss the implications of Seth’s impaired mental status, they could have profitably expanded their analysis of the ethical significance of a patient’s competency in regard to the physician’s duty to maintain confidentiality. The authors neglect to discuss, for example, how the selection of a surrogate to speak on Seth’s behalf might influence the case’s resolution.

Identifying which should be the determining factor(s) in deciding Seth’s case is a difficult moral problem. However, the first step is any casuistic analysis is to determine where the case fits in relation to other cases. Without this basic first step, it is too easy to neglect factors that may be critical in determining the proper course of action or to reply upon ad hoc, intuitive decisions.

THE NEED FOR A RICHLY DETAILED CASE

The casuistic method to which Smith and Martin supposedly subscribe, demands attention to the context of the particular case at hand, so that it may be compared to and contrasted with paradigm cases in which the ethical analysis is clear. A casuist needs sufficiently detailed information to be able to identify all of the moral issues and, thereby, situate an individual case in its appropriate taxonomy.

In Seth’s case, the authors seem to decide prematurely on the ethical issue, inappropriately hindering the search for future data. In the rush to identify and resolve the presumed ethical conflict, the ethicist may neglect to collect critical information.5 Without adequate information, the ethicist is unable to determine accurately what kind of case it is. While obtaining more information might be less interesting than theoretical analysis, often the most prudent course of action is to gather more information from the sources available in order to clarify and embellish the initial facts. Prior to leading the psychiatrist through a philosophical analysis of how to resolve the conflict between the duty to warn and the duty to uphold confidentiality, the authors should have urged the psychiatrist to obtain more information.

It is difficult, for example, to weigh the impact of Seth’s mental incompetency against the duty to maintain confidentiality because of a lack of sufficient information. Information regarding the severity of Seth’s mental illness and the chances of its reversibility would be useful in determining whether Seth should be viewed as only temporarily or permanently incompetent. If Seth is incompetent, it is not clear who should assess the harm done to Seth by a breach of confidentiality. We know too little about Seth’s life to determine who would most appropriately serve as his surrogate. Furthermore, it is not clear that violating Seth’s confidentiality would result in the social harms the authors forecast. In order to make this point, the authors would need to identify a case analogous to Seth’s, in which violating an incompetent person’s confidences is ill-advised because it might lead competent patients to mistrust or fear the health-care system.

In the previous section, we identified a variety of morally relevant factors in Seth’s case and suggested how they might affect one’s analysis. Determining the importance of the various factors in this case, however, requires the ethicist to obtain information concerning the following: the efficacy of antiviral treatment in HIV-positive persons, Seth and Maxwell’s sexual practices, the probability that Maxwell knows of Seth’s seropositivity, the degree to which Maxwell can reasonably be expected to know the risk of homosexual encounters, Seth’s previous comments regarding confidentiality, who is best situated to serve as Seth’s surrogate, and the degree to which violating an incompetent patient’s confidentiality will lead other patients to lose trust in physicians and thus avoid the health-care system. Some of this information might be obtained from Seth’s social worker. Other data, however, can be obtained only by reviewing the empirical literature. We admit that much of this information may be unobtainable. Knowing the limits of one’s knowledge, however, will allow an honest appraisal of how uncertainty regarding various factors affects one’s moral decision making. This is preferable to not attempting to ascertain the information at all.

CREATIVE SOLUTIONS

The failure to gather sufficient information often leads to an impoverished understanding of the ethical issues that a case raises. In Seth’s case, the authors present the case as though there were one question: Is it permissible/obligatory to violate Seth’s confidentiality to warn Maxwell? Asked this way, there appears to be only two resolutions to the case: either a physician protects Seth’s confidentiality by failing to warn Maxwell o the risk, or he violates Seth’s confidentiality by warning Maxwell. Upon collection of sufficient data, one might discover ways to resolve the case that would allow all relevant values to be promoted. In some cases, additional information may provide the ethicist with an “end run” around the presumed ethical problem. For instance, if the ethicist learns that Maxwell is already aware of Seth’s seropositivity, then the ethical quandary vanishes. There is strong pedagogical justification for the authors to provide us with sufficient information to conclude that the quandary could have been resolved by seeking additional information and to help us develop innovative solutions that might promote the competing values.

Even if more information does not allow one to avoid the ethical conflict, it may prove useful in determining how best to resolve the case. It is simplistic to view the outcome of ethical analysis as a hierarchical ranking of two competing values or principles. Intermediate solutions often exist, which allow one to respect both competing values. Even in those cases where it is justified to promote one value over another, one is nevertheless obligated to consider alternative courses of action that respect, as much as possible, the other value. The authors neglect an important step in ethical problem solving – attempting to develop creative solutions that, if they cannot perfectly respect all values, at least cause as little damage as possible. This approach, known in American law as “the least restrictive alternative,”6 recognizes that solutions can be more or less respectful of ethical principles. Thus, for example, one might decide that the risk to Maxwell is sufficiently high so that some violation of Seth’s confidentiality is permissible. A variety of options would still be open. (1) The psychiatrist could call Maxwell (or have the public health department do so) and inform him that he may have been exposed to the HIV virus and thus, he should be tested. (2) The psychiatrist could call Maxwell, identify himself as Seth’s physician, and attempt to ascertain what Maxwell knows about Seth’s serostatus and what the nature of their sexual relationship was. That evidence could then be used to determine whether further actions are in order. (3) The psychiatrist could call Maxwell and tell him that he is Seth’s physician, hat he knows of Maxwell and Seth’s sexual relationship, and that Seth is HIV positive. He could then urge Maxwell to be tested. A similar range of alternatives could be developed if one decides that respecting Seth’s confidentiality is the most important value.

PREVENTIVE ETHICS

A final question is simply why this problem arose. If we assume, as the authors do, that “choosing one solution [in an ethical dilemma] over another leaves behind an ethically significant value and regrettably may even produce harm,” we should attempt to prevent ethical dilemmas from occurring.7 However, typically, case discussions focus on how to “solve” the problem at hand without determining how and why the problem arose, and how it might be avoided in the future. As E. Haavi Morreim points out: “Our moral lives are comprised, not of terrible hypotheticals from which there are no escapes, but of complex situations whose constituent elements are often amenable to considerable alterations.”8 The psychiatrist in this case may not have been able to anticipate Seth’s disappearance, but perhaps he could have asked additional questions on his initial encounter to prevent the resulting ethical quandary. For instance, it would have been useful if the psychiatrist had gathered information about Seth’s values and desires prior to his decompensation. Furthermore, if the physician had asked Seth for permission to talk to his friends, whether others knew of his seropositivity, whether the doctor could release this information to Seth’s sexual partners. or to identify his moral surrogate, this additional information could have ameliorated the quandary that subsequently arose.

In the final analysis, we may well agree with Smith and Martin about how the psychiatrist should handle this case. In this article we have tried to criticize not the answer, but the process by which the answer was reached. We urge ethicists who are dealing with a challenging case to use the process of case comparison in their analysis, examining a variety of analogous cases; to seek sufficient information to be able to identify all the moral issues in a case and situate the case in its proper taxonomic family; to attempt to develop creative, “least-restrictive” alternatives to ethical dilemmas; and to determine if there are ways that the ethical problem can be prevented in the future. Close attention to these points is likely to improve ethical decision making in the clinical setting and ethical analyses of cases presented in the bioethics literature.

ACKNOWLEDGMENTS

We would like to thank our friends and colleagues for their helpful comments on this paper: Lisa Parker, PhD; Joel Frader, MD; Peter Ubel, MD; and Shawn Wright. JD, MPH.

1. A.R. Jonsen, “Casuistry as Methodology in Clinical Ethics,” Theoretical Medicine 12 (1991): 295-307.

2. T.L Beauchamp and J.F. Childress, Principles of Biomedical Ethics (New York: Oxford University Press, 1989).

3. 3c. Tarasoff v. Regents of the University of California, 17 Cal. 3d 425. 551 P.2d 334 (1976}.

5. N. Whitman, Creative Medical Teaching (SaIt Lake City: University of Utah School of Medicine, 1990).

6. Lake v. Cameron. 364 F. 2d 657 (D.C. Cir. 1966).

7. L. Forrow R.M. Arnold and L.S. Parker, “Preventive Ethics: Expanding the Horizons of Clinical Ethics:· The Journal of Clinical Ethics (forthcoming).

8. E.H. Morreim, “Philosophy Lessons from the Clinical Sening.” Theoretical Medicine 7 (1986): 47-63.

TARASOFF: Discussion Questions

1. Traditionally, the Tarasoff case pits two goods or values against each other: confidentiality between therapist and patient vs. protection of an intended victim. Why is each a value?

2. Confidentiality is not only a value, but it has been called a duty which is incumbent on health care professionals to maintain secrecy about information gained in the course of interaction with a patient or client. Confidentiality derives from the more fundamental value of autonomy, the right each person has to be one’s own self-decider, one’s own intentional agent.

Protection of an intended victim likewise becomes a duty. To discharge that duty, the court argued, the therapist is obliged to warn the intended victim or others, to notify the police, or to take steps which are reasonably necessary to guard the intended victim.

Formulate an argument that supports the duty of confidentiality over the duty to warn an intended victim. Then formulate an argument which supports the duty to warn over the duty to protect confidentiality. (Being able to make good cases for each of the values shows the ambiguity involved here. Bring into your arguments the issue of the foreseeability of violence (is violence clearly foreseeable, probably foreseeable or unforseeable?) and the element of control over the patient by the therapist.)

3. One can easily use the Tarasoff decision to show the two principal ways of argument, consequentialist and non-consequentialist. Formulate an argument from a utilitarian (consequentialist) perspective, i.e., emphasize risk over benefit in arguing for safety and again, in arguing for confidentiality.

Next, consider confidentiality and the right to be protected as goods in themselves, regardless of consequences. Show how each value is tied to the meaning of being human and indicate how such a value can be argued for without consideration of consequences.

4. Notice how the arguments being proposed by the committee deny the absolute nature of either value. Rather, the committee is attempting to justify an action that is indicated in favor of one value over another, while acknowledging that both values are human goods. How would one attempt to argue when faced with the position that confidentiality or protection were absolute values?

Case Analysis: Breaching Patient Confidentiality and Privacy

This article appears on page 0 of

The Nursing Voice December 2015

Amy Amarathithada, BSN, RN

Loyola University

Introduction

Advancement of technology has changed the way people communicate. Paper charting or hand written communication has become extinct in healthcare. Healthcare professionals can easily document and access patient information through the electronic health record (EHR) system. Patients are encouraged through many healthcare organizations in utilizing their website to access their medical records. In addition, patients can now email their providers with any medical questions they have any time. With this new implementation, healthcare professionals need to be more cautious with patient information. As providers, it is our role to keep patient information private and confidential according to the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Social media such as Facebook, Twitter, and Instagram has made it challenging for people to keep information private. People all over the world share their personal information through pictures and videos. Most people tend to forget that once something is shared over the internet, it is no longer private. The purpose of this paper is to present a case study analysis on breaching patient confidentiality. Next, the issue of breaching patient confidentiality through the use of EHR and social media will be discussed. In addition, the effects of EHR used in the healthcare profession and implementation of bioethics decision-making method will be presented.

The use of digital communication such as EHR, email, social media, or the internet has become the norm in healthcare (Lo, 2013). However, the use of digital communication poses risks of breaching patient privacy and confidentiality. The following case study illustrates inappropriate use of digital communication: Trista was a new graduate nurse who landed her first job in the emergency department (ED). She was very excited to work in the ED and was eager to learn. On every shift, she would access and view patient information using the EHR system for her own learning experience even though some of the patients was not assigned to her. Her co-workers Nina and Darline noticed that she would access unassigned patient EHR on multiple occasions. Both co-workers ignored the issue each time they saw Trista inappropriately viewing patients’ medical records. During lunch, Trista would talk about some of the patients she looked up in the EHR system. One of the comments she said to Nina was, “I can’t believe how many drug seeking patients on record I found in the ED. Some of them I didn’t even take care of. They take pain meds like it is candy.”

Trista always carried her mobile device with her and would update her Facebook frequently about her workplace. At times, Trista would take photos in the ED. She posted pictures of herself at the nurse’s station and when she used the electrocardiogram machine for the first time. Trista was very friendly and wanted to become friends with her co-workers on her Facebook account. She became friends with Nina and Darline as well as other co-workers on the social networking website. Nina and Darline both noticed that Trista posted multiple comments and photos about their workplace and patients in the ED. However, neither has said anything to their manager.

One evening, Trista was assigned to a 17 year old female patient in the ED. The patient was diagnosed with a urinary tract infection and sexually transmitted disease. She took a picture of herself by the patient’s room and posted the picture on her Facebook page. Trista wrote the following caption in the photo, “typical night, UTI and STDS.” The posted photo included the hospital name and room number. The background of the photo revealed the patient’s face partially shown through the hospital curtain. Her fellow co-worker Nina saw the photo Trista posted about her 17 year old patient on Facebook.

Summarized Data

The use of EHR in healthcare is encouraged by the United States government. Digital technologies such as EHR present the promise of higher quality and more efficient healthcare (Lo, 2013). EHR are digital versions of paper charts that contain patient information documented by clinicians in provider offices, clinics, and hospitals. The use of EHR is very beneficial because it enables clinicians to track data over time, identify patients for screenings, monitor patient’s illnesses, and improve the quality of care provided (Ardito, 2014). In addition, the use of digital technology assists patients to become more involved in their own care. Patients can email medical questions to their providers, request for medication refills, book appointments, and access their own medical records with just a click of a button. However, the advancement of digital health information also brings burden and challenges for many healthcare organizations in protecting patient privacy. Healthcare professionals’ risk of breaching patient privacy and confidentiality has increased due to the implementation of EHR. All healthcare professionals should be aware and understand the law of HIPAA in order to avoid ethical privacy violations. HIPAA was mandated to protect patient’s rights for privacy of health information transmitted orally, on paper, or electronically (Lachman, 2013). Healthcare professionals should only access patient information through EHR when the clinician is caring for the patient. Inappropriate access of unassigned patient EHR for personal interests is considered breaching patient confidentiality.

The rise in the use of social media has also made its way in the healthcare industry. Healthcare organizations are encouraged to advertise about healthcare services through the use of social media such as Facebook and Instagram. According to Lachman (2013), social networking websites such as Facebook is the world’s largest professional network. Facebook currently has 750 million active users and 30 billion pieces of content is shared through its network monthly (Griffith & Tengnah, 2011). Like the general population, healthcare professionals post information on social media at similar rates. However, some materials posted by healthcare professionals can be problematic. According to Lo (2013), postings that contain sufficient detail to identify a patient breaches confidentiality. Once something is posted over the internet, it is no longer private and can become permanent. Healthcare professionals should expect that some patients will Google them and possibly forward information found via internet to others (Lo, 2013).

Impaction of Breaching Patient Confidentiality

The United States encourage healthcare organizations to convert from paper charting to EHR. In February 2009, the federal government set aside 30 billion dollars to assist hospitals, clinics, and provider office-based in transitioning to electronic records (Ardito, 2011). Although the implementation of EHR will assist the healthcare profession in providing better care to the public, there are also disadvantages. The use of EHR and digital communication has made protecting patient privacy challenging despite congress passing the HIPPA act. The ethical issue of healthcare professional breaching patient confidentiality is on the rise and is impacting the healthcare profession in many ways.

Inappropriately accessing patient EHR or posting patient information through social media can harm a healthcare organization’s reputation (Lachman, 2013). Healthcare organizations such as hospitals or outpatient clinics face the consequences due to their healthcare professional’s poor judgement. Patients and their families will not want to go seek health services from an organization with a bad reputation. Like the general public, patients can see what healthcare professionals post on social media. Patients and their families can view any comments, photos, or videos that healthcare professionals post inappropriately. It is the role of healthcare professionals to safeguard patient’s right to privacy (Lachman, 2013). In addition, healthcare professionals such as nurses frequently fail to realize how quickly information is spread through the internet (Griffith & Tengnah, 2011).

The trusting relationship between patients and providers is affected by the issue of breaching patient confidentiality. The use of social media has impacted the way patients view their provider’s trust and medical judgement. Providers might use social media to express their feelings regarding a patient incident that occurred in the workplace. People can simply search the web and find postings on a provider’s personal blog. Healthcare professionals need to keep in mind that once something is posted, it may become permanent. Patients, their families, and potential patients who view inappropriate material regarding patient information may question the integrity, judgement, or trustworthiness of the provider (Lo, 2013).

Violating patient privacy has affected the healthcare profession in protecting the well-being and safety of patients. According to the Code of Ethics for Nurses, the patient’s well-being could be jeopardized and the patient-nurse relationship could be destroyed due to the unnecessary access to patient data or by the inappropriate disclosure of patient information (Lachman, 2013). In addition, the well-being and safety of patient should be the priority when receiving or conveying confidential information about the patient whether in oral, written, or electronic form (Lachman, 2013). Healthcare professionals can put patients at risk when posting information about patients on the internet or inappropriately accessing patient’s electronic records. Patients may not want their families to know that they were in the hospital. In addition, patients can be at risk with unwanted visitors who found out their information because a careless healthcare professional posted information with the hospital name and room number. Healthcare professionals can also put patients such as adolescents at risk for their well-being and safety. Adolescents tend to not seek care because they don’t want their parents to find out. If healthcare professionals breach patient privacy by posting comments in social media, adolescents will not seek care because they will be afraid their parents may find out about their care.

Systematic Process for Bioethics Decision-Making

The presented case study shows an example of a healthcare professional breaching patient confidentiality on multiple occasions. It is necessary to utilize the bioethical decision-making method to help analyze and clarify the ethical issue arise in this case study. Bioethical decision-making model is a systematic approach to help distinguish situations where right and wrong are not defined clearly (Gilliland, 2010).

In the case study, Nurse Nina believes that violating patient privacy is a serious issue. However, is it Nina’s responsibility to report Trista or should Nina ignore the issue because there was no harm done on the patients? Gathering additional information will help Nina analyze the ethical components of the situation. The bioethical decision-making model will be utilized as a guideline for Nina and other healthcare professionals regarding an ethical situation.

The first step in the bioethics model is to the review the situation (Gilliland, 2010). Nina must determine the cause for the breaching of patient confidentiality. According to the case study, the cause is due to Trista taking advantage of utilizing the EHR system to access patient information and posting inappropriate material on social media. Nina may conclude that this ongoing behavior is a result of other fellow co-workers ignoring the issue of patient privacy violation.

The second step of the bioethics model is to gather additional information. Nina will need to ensure that she understands what Trista has discussed with her about patient information and what she saw on Trista’s Facebook. In addition, Nina must determine if she needs to gather additional information. Based on the case study, Nina can conclude that Trista provided many evidence that she is breaching patient privacy. Trista continuously access patient information on EHR and carelessly talks about patients during lunch. Trista also posted inappropriate material regarding her workplace and patient information on her social networking page.

The next step is to identify ethical issues in the situation (Gilliland, 2010). The ethical issue identified in this case study is breaching patient confidentiality on multiple occasions. Trista breached patient privacy due to the following:

• Inappropriately accessing patient electronic medical records on multiple occasions

• Made inappropriate comments about unassigned patients in the lunch room

• Using mobile device while working with patients

• Posting comments and photos regarding patients and workplace on social media

Step four of the bioethics model includes identification of personal and professional values (Gilliland, 2010). Nina believes that breaching patient confidentiality is wrong. She believes that it is the role of the nurse to protect the patient’s right for privacy. At the same time, she understands that Trista is a new nurse who wanted to learn more about patients by accessing their records. Even though Trista did not cause harm to her patients, Nina believes that it is not right to violate a patient’s privacy.

In Step five, Nina must identify moral positions of key individuals involved (Gilliland, 2010). Nina recalls that Nurse Darline was present when Trista made inappropriate comments about patients in the lunch room. Darline is also friends with Trista on Facebook and saw her inappropriately posting a photo of a patient. Nina needs to clarify if Darline understands that Trista has violated patient privacy in many ways and on multiple occasions. Nina concluded that Darline’s beliefs and values are the same as hers. Darline believes that Trista is wrong for breaching patient confidentiality. However, she did not report Trista because she believes Trista did not cause harm to any patients.

Identification of value conflicts is necessary in step six of the bioethics decision model. It is important to identify value conflicts because this can contribute to making ethical decision difficult (Gilliland, 2010). This case study shows that both Nina and Darline have value conflict. Both nurses agree that Trista has violated patient privacy. However, both chose to ignore the situation because they feel that Trista has not caused harm to any patients. Nina must decide what the best outcome is because Trista continues to violate patient privacy.

The next step in the bioethics model is to determine who should make the decision (Gilliland, 2010). Nina made the decision that she will be the one to report Trista to her manager. Darline has agreed with Nina that she will support her when the manager has questions about the situation of Trista violating patient privacy.

Step eight is to identify a range of actions with anticipated outcomes (Gilliland, 2010). The following are a list of possible actions and outcomes:

A. Report Trista to ED manager

• Action: Trista receives disciplinary action

⎥ receives re-education on patient privacy and confidentiality

⎥ not allowed to carry her mobile device during working hours

⎥ allowed limited access to the EHR system

• Outcome: patient’s privacy will no longer be violated

B. Continue to ignore the situation

• Action: Nina and Darline continue to ignore Trista’s ongoing behavior

• Outcome: Trista and potentially other healthcare professionals will continue to breach patient privacy

In step nine of the bioethics model, Nina must make the final choice for action. She needs to select the choice with the highest positive resolution (Gilliland, 2010). In this case, the best course of action is to select option A. Nina needs to report Trista to the ED manager. Trista has to be discipline for her actions and learn that she has violated patient privacy multiple times. Trista will learn from her mistakes and become more aware of her actions. In this case, the ethical duty is that nurses are accountable for their actions. It is a nurse’s duty to protect and respect the privacy of every patient.

In the last step, Nina must evaluate her decision and action (Gilliland, 2010). Nina made the right decision to no longer ignore the situation and report Trista. Trista violated her patient’s privacy when she posted a photo of the patient on Facebook. As a result, Trista no longer takes photos or post comments about her workplace and patients. She only accesses patient information necessary to provide care to her assigned patients. In addition, patients at the ED can feel safe that their information will be kept private and confidential.

Healthcare professionals play a major role in advocating for patients as well as other fellow colleagues struggling with difficult ethical decisions (Park, 2009). In this case study, the ethical issue of breaching patient confidentiality that many healthcare professionals frequently face was identified. As a result of the case study analysis, other healthcare professionals can utilize the bioethics decision-making model to assist in solving future ethical dilemmas. Healthcare professionals such as nurses have the obligation to protect patient confidentiality and privacy. With the advancement of digital communication, it is apparent that nurses, providers, and other healthcare professionals must be cautious with keeping patient information confidential.

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13 April 2021

A pragmatic approach to confidentiality claims in the course of litigation

Addleshaw Goddard LLP
Insights & News
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The Brief Case - Spring 2021
A pragmatic approach to confidentiality claims in litigation

A number of recent cases have considered the desirability and scope of "solicitors only" confidentiality rings.

Confidentiality is not, by itself, a reason for documents to be withheld from disclosure. There are obligations set out in the Civil Procedure Rules (CPR 31.22) for parties to proceedings to use documents they receive from another party only for the purpose of the proceedings, until the documents are read out or referred to in a hearing in open court. However, the content of some documents may mean that the parties will seek a higher level of protection. Confidentiality rings or "clubs" - either ordered by the court, or agreed between the parties - are often seen as the solution.

Limiting confidentiality claims - what is necessary?

It is understandable for those involved in claims to be concerned about an opponent having access to documents containing information that they would not see in the normal course of things. But in the Infederation v Google decision, Roth J last year laid down a warning that there is an increasing tendency for excessive confidentiality claims to be asserted, only for such claims to " be curtailed or renounced in response to protests from the other side or intervention by the court ". He noted that this is wasteful of time and costs and " not the way modern litigation should be conducted ".

The court's position is that a fundamental aspect of the justice system is for parties to know the case against them and the evidence upon which it is based. A client needs to be able to understand the reasons for advice received by its lawyers. Equally, a party is entitled to have expert guidance and the other side should not be permitted to unreasonably dictate what experts should see or which expert should be used. (In the Infederation case, the objection had been to the particular expert selected by one party seeing the documents, with the opposing party stating that there were other individuals that it would not object to). However, if there are material concerns over confidentiality, then the court may impose restrictions upon the disclosure of documents on the request of a party.

In Infederation v Google the court achieved fairness by giving the party claiming confidentiality the option to either disclose the material or renounce reliance on sections of evidence.

There are certain proceedings, where the whole object is to protect a commercial interest and rival commercial interests involved. The court has identified that cases for breach of confidence and some types of intellectual property claims will involve highly commercially sensitive information. Infederation v Google was a competition claim and the court accepted that some categories of documents caught by disclosure were highly sensitive.

Lawyer-only confidentiality rings

The two recent cases of Oneplus Technology (Shenzhen) Co Ltd and others v Mitsubishi Electric Corporation and another [2020] EWCA Civ 1562 and Anan Kasei Co Ltd and another v Neo Chemicals & Oxides (Europe) Ltd and another [2020] EWHC 2503 (Pat) looked at "attorneys only" rings. The court reiterated that these should be exceptional.

The Oneplus case arose from FRAND litigation, where the court is considering the appropriate licence fee for use of one party's patents. In such cases comparable licences with other similar businesses will be strong evidence of the terms that are available in the market for similar arrangements. But, without restrictions, that would mean those who negotiate licences day-to-day seeing the detail and getting a step ahead in commercial discussions. Such cases may also involve the confidential information of third parties.

The Anan Kasei case was in connection with a damages inquiry following a successful patent infringement claim, where the claimant was seeking an order that certain documents in support of its claim be limited to lawyers only, or failing that, if an individual from Neo was to be included in the ring, then it should not be the COO of Neo but someone else from the business.

In Anan Kasei the court rejected the restrictions sought and ordered that the COO of Neo be added to the ring. The Judge noted that the court should be slow to second guess a party's request for a particular individual to be included in a ring, if that individual was considered best placed to give instructions. It also rejected submissions about the restriction being limited to a small number of documents or that it was not appropriate for the individual to be included at that stage of proceedings.

In contrast, in Oneplus the court rejected requests to add certain employees (in-house lawyers) to the confidentiality club, noting that it would be unworkable for them not to retain the information and potentially use it in the future. It noted that in large organisations it should be possible to find an in-house counsel or commercial employee to receive advice and give instructions, who was not directly involved in that section of the business.

WHAT DOES THE DISCLOSURE PILOT PRACTICE DIRECTION FOR THE BUSINESS AND POPERTY COURTS MEAN FOR CONFIDENTIALITY CLAIMS IN THE COURSE OF LITIGATION?

The overall mission statement of the Disclosure Pilot is to reduce the cost of litigation. It can therefore be expected that the court will be keen to only permit restrictions where they are considered to be necessary, and to make them as limited as possible.

Therefore, it is important to consider confidentiality in the context of the Pilot, as a part of the overall disclosure strategy and to have a solid plan as to how it should be approached. Lawyers and their clients need to think early on about what documents are likely to raise confidentiality concerns. Some information might have been confidential at the time, but is it now historic enough that it can be disclosed? One consideration will be that if you take a wide approach to claiming confidentiality, then it may be difficult to challenge the other side's withholding documents of the same nature or taking a similar approach.

There is also the practical impact to think about: orders or agreements to keep documents confidential will inevitably add layers of complexity for disclosure, witness statements, trial preparation and the trial itself. Complexity leads to higher costs. However, it is not unusual for confidentiality claims to be reduced considerably at and during the trial, meaning that much of the expenditure on dealing with confidentiality may ultimately have been wasted.

Redaction is often seen as the answer. The Disclosure Pilot requires that parties identify reasons for redaction, although that doesn't mean that every redaction must be explained specifically. Also, a legal representative must confirm that the redaction has been reviewed.

In practice, the position in respect of both confidentiality claims and redactions has not changed with the introduction of the Disclosure Pilot, and a balance still needs to be found. Redactions should be limited. When documents are almost entirely irrelevant, save for a small part, the immediate reaction is to redact everything. But a pragmatic approach may be to redact simply what really needs to be redacted and to leave the remainder visible.

Correspondence about redactions adds cost to litigation, as does the redaction process itself. If not resolved these issues can result in applications to the court, so, as with confidentiality claims, redactions should only be used where the related expenditure is merited.

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When publishing personal information about identifiable living patients, we require a signed copy of our patient consent permission form. This form is available as a pdf and in multiple languages.

Authors should seek the patient's consent to publication before submitting any article. Please save and print the form, then show the patient the version of the article that you are submitting and, if they give permission for publication, please ask them (or, as appropriate, their next of kin - in which case please explain this on the form) to sign the form. Then send the completed form to us. You can do this in either one of two ways:

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Our policy is based on the UK's data protection law and the English common law of confidentiality. UK authors should be aware that the General Medical Council has extensive guidance on patient consent and confidentiality and that our policy is in line with GMC advice.

• Any article that contains personal medical information about an identifiable living individual requires the patient's explicit consent before we can publish it. We will need the patient to sign our consent form, which requires the patient to have read the article. If the patient has not seen a final version of the manuscript to be submitted to BMJ, the form must be amended to make clear what the patient has seen and that they have agreed to publication without having seen the final version of the manuscript. The consent form is available in multiple languages and the author must ensure that the form is in a language that the patient understands.

• If consent cannot be obtained because the patient cannot be traced, then publication will be possible only if the information can be sufficiently anonymised. Anonymisation means that neither the patient nor anyone else could identify the patient. A consequence of any anonymisation is likely to be the loss of information/evidence. If this happens we will include the following note at the end of the paper: "Detail has been removed from this case description/these case descriptions to ensure anonymity. The editors and reviewers have seen the detailed information available and are satisfied that the information backs up the case the authors are making." Such anonymisation might, at an extreme, involve making the authors of the article anonymous.

• If the patient is dead the UK data protection law does not apply, but the authors should seek permission from a relative (as a matter of courtesy and medical ethics). If the relatives are not contactable we will balance the worthwhileness of the case, the likelihood of identification, and the likelihood of causing offence if identified in making a decision on whether we should publish without a relative’s consent. For BMJ Case Reports, a document must be submitted confirming that exhaustive attempts have been made to contact the family and that the paper has been sufficiently anonymised not to cause harm to the patient's family.

• Children - Parents or guardians can consent on their behalf but children aged between 7 and 18 must also sign the consent form in addition to the parent or guardian. For younger children, even if parents consent, authors should consider whether the child, when older, might regret publication of his or her identifiable details.

• Patients who lack capacity - If the patient lacks the mental capacity to make a decision about publication our advice is that usually no one can give consent on behalf of the patient. Even if someone has this power, by means, for example of a health and welfare power of attorney, it has to be exercised in the best interests of the patient. There may be some benefit to the patient in having his or her case described in a publication, but usually this is not obvious or certain. In such cases we will normally require any personal information to be anonymised or will not be able to publish it.

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Best practice for authors on obtaining consent for publication

This document provides guidance for authors on obtaining consent for publication including best practice for obtaining consent from individuals who may lack capacity to consent on their own behalf and minors.

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Case Discussion: Confidentiality and Adolescents

Case Discussion

A 14-year-old accompanied by her mother presents with complaints of nausea and vomiting for two weeks. After her mother leaves the room, she admits to being sexually active and tells you that she has had unprotected intercourse recently with her boyfriend and missed a period.

Her parents do not know she is sexually active, and she does not want her mother to know that a pregnancy test is being done or the result of that test. Pregnancy test comes back positive.

This patient, a 14-year-old, has requested that you not convey to her mother that a pregnancy test has been sent. In other words, she has requested that you respect her confidentiality. We talk about confidentiality. What is the rule of confidentiality, and how does it differ from respecting someone's privacy?

Distinction between violations of confidentiality and privacy:

Violations of privacy involve the unauthorized disclosure of someone else's private information (e.g., looking at records without authorization).
That they voluntarily imparted in confidence and trust
When there was an implicit or explicit promise not to divulge that information without their permission
The ethical basis of a rule for confidentiality is embodied in the word. Maintaining confidentiality is important because someone has confided private information to us. Breaking that confidence undermines their ability to trust. The Latin root of confidentiality is confidere , which means "to trust."

Is there a general duty of confidentiality, and what is the basis for this general ethical rule?

There should always be a strong presumption to respect confidentiality and avoid breaking confidences when at all possible. The duty of confidentiality is based on four major arguments:

Respect for autonomy, or respect for persons, calls for us to allow others to decide who they want to know certain details about themselves. Respecting others and caring for them should create in us a disposition to respect their wishes that certain intimate details of their lives remain confidential. We show them disrespect when we make that decision for them by telling their "secrets" (deontological ethics).
One could ask whether good people should really even have aspects of their lives which they would not want other people to know about. Two points are worth noting: we all fall short of our ethical ideals, and we make mistakes that we prefer others not know about.
Some persons are courageous enough to be honest about these things, but most of us aren't. What is important here, however, is that respecting others requires that we let them decide whether to reveal these things and to whom they feel they need to reveal these things.
Confidentiality in the therapeutic relationship is assumed. Therefore, an implied promise exists between the patient and her physician. Absent a prior warning by the physician to the contrary, to break confidentiality is to break a promise made to the patient.
Under circumstances of trust , such as disclosures made in most patient-provider relationships, the patient is betrayed when confidences are broken. They have confided in us assuming that we will not disclose what they have told us. To do so would do violence to that trust. Trust is essential for communities of people to function effectively. Without trust and fidelity, communities (and the persons within them) suffer.
An expectation exists in society that confidence will be kept in medical settings. This expectation makes people trust those who care for them in times of illness. Because the expectation exists, and because of the inequality in intimate disclosures, medical care providers have a special obligation to be trustworthy and loyal.
The effectiveness of medicine often depends upon patients revealing intimate details and secrets of their lives. The breaking of confidences would have a negative effect on medicine because patients would be less likely to entrust these intimate details to their providers if they might be revealed to others (utilitarian ethics). Thus routinely breaking confidence harms the therapeutic relationship.
For example, people who are at risk for HIV may not seek testing if they think that information will be available to anyone other than the doctor. Without the assurance of confidentiality, no identification of people at risk can occur.

Is there an obligation to maintain confidentiality when the patient is an adolescent?

Adolescents' concerns about confidentiality can be a barrier to accessing health services (Booth, Ford, Reddy, Cheng, Klein). When they know that confidentiality will be respected, they are more likely to seek healthcare, return for healthcare and disclose sensitive information about risky behaviors (Ford).

One study (Reddy) of girls ages 12 to 17 in the United States found that nearly 60% reported that if their parents were notified, they would stop using all or some sexual health services or delay testing or treatment for sexually transmitted infections.

Other studies have found that about a third of adolescents would not seek health care for sensitive health concerns if their parents could find out (Cheng, Klein).

The majority of adolescents wish to obtain healthcare for some or all of their health concerns without parental knowledge (Thrall).

One in 10 adolescents reported not visiting their health care provider in the previous year despite wanting to do so because of the fear that their parents would find out (Thrall). This study also found that the provision of confidential healthcare was a significant predictor of having discussed substance use with providers in the preceding two years.

One British survey of 188 adolescents ages 16 to 17 found that 85% of them ranked confidentiality as the first- or second-most-important issue in seeking health services (followed by telephone advice, written information, special clinics, friendliness and magazines in waiting room) (McPherson).

Another survey found that 58% of adolescents had health concerns they wished to keep private from their parents. Due to concerns about privacy, only 57% were willing to see their physician about sensitive subjects (Cheng).

Doesn't the law require we tell parents these things?

Laws regarding confidentiality vary from state to state. In Washington state, confidentiality is tied to informed consent, such that any individual who can provide informed consent (and most adolescents can provide consent for diagnosis and treatment of STDs, pregnancy, contraception and psychiatric care) is also owed the duty of confidentiality.

How will you strategize what happens next, e.g., sending a test while the girl waits, but not telling the mom what has been done?

What is perhaps most important is to make a plan with the girl. One option is to suggest that a visit to a public health clinic or Planned Parenthood might be a safer way to protect her confidentiality.

If she wants you to perform the pregnancy test, then she needs to be aware that her mother may have questions about what is happening and why tests are being done. It will also be necessary to plan for how the test result will be shared once the mother is back in the room.

What if her mother asks what tests you are doing?

While you have promised confidentiality to the daughter, this does not require that you lie or mislead the girl's mother. The daughter needs to understand this. If asked a question by the mother about what tests are being done, you may need to say that you cannot divulge that to her.

In that case, an uncomfortable situation may arise with the mother confronting the daughter. The physician's duty in this case is to make the daughter aware of this risk of doing the test now with her mother present.

Is it ever appropriate to violate the duty of confidentiality? If so, under what conditions?

The clearest situations in which confidentiality can be justifiably overridden are those in which the patient places another person or the community at significant risk of serious harm.

Confidentiality is limited in cases where others may be harmed significantly if the confidence is kept. Respect for autonomy does not extend to allowing harm to be done to others.
Probability of harm
Magnitude of harm
Forseeability of harm
Preventability of harm
Identifiability of victim (s)
Potential impact on a general policy of confidentiality
Is there a high likelihood of significant harm ?
Will breaking the confidence prevent the harm ?
Are there any less intrusive alternatives that would prevent the harm and not require breaking confidentiality or some other ethical obligation? One must always seek an alternative way of dealing with the problem that might allow you to keep confidence. Every effort must be made to get the person's consent to reveal what needs to be revealed. If people are at risk of serious harm and disclosure is necessary to prevent that harm and there is no less intrusive alternative than disclosure, disclosure is justified.
If confidentiality must be broken, only those with an absolute need to know should be given access to that information, and only that information that is needed to prevent harm should be revealed.
In most cases, patient should be notified that confidentiality is to be violated.

What are some examples where breaking the rule of confidentiality might be justified?

State laws may mandate reporting of certain communicable diseases, including STDs and HIV. Beyond mandatory reporting, one's duty to protect others when your patient has an infectious disease is usually discharged by warning the patient that they are at risk to others and telling them how they can prevent spread of the disease to others.
When someone says that they are going to hurt someone else
These conditions may include driving under the influence; promiscuous HIV-infected person having unprotected intercourse; an airline pilot with uncontrolled seizures. (There is a recent $3 million tort case involving a physician who failed to report an epileptic patient to the DMV. The patient had an accident and injured a passenger.) Laws governing whether reporting of these situations is mandatory vary from state to state.
Duties are to the child. To report parents is not to break confidentiality, but to uphold your duty to give priority to the best interests of the child. State laws require healthcare providers to report suspected neglect or abuse to child welfare authorities.

What about harm to self? Is your feeling that the adolescent might harm herself or that she might later regret her decision sufficient reason to break the rule of confidentiality?

These are referred to as paternalistic violations of confidentiality: "It is done for the patient's own good."

Paternalistic violations of confidentiality are rarely justified in adults, especially regarding those patients who demonstrate the capacity to make the decision in question (understanding of issues, thoughtfulness, ability to make a decision, awareness of and willingness to accept consequences).

Notice that a breach of confidentiality is not justified simply because you think it would be better for the patient if others knew about a certain condition or problem. Respect for persons requires that a person with capacity be permitted to decide whether or not it would be beneficial to her that others know the information in question.

Adolescents should be encouraged to consult with parents about decisions.

Confidentiality should only be violated if what the adolescent has revealed suggests there is a strong likelihood of serious harm to them; that the harm will most likely be prevented by breaking confidence; that all alternatives have been exhausted; that they have been given the opportunity to make the revelation themselves; and that they have been notified of your intention to break confidentiality. This is more easily justified if there is some evidence of limited autonomy on the part of the adolescent.

If you decide you must break confidentiality, what are your obligations to the adolescent patient?

Notify them of your obligation to make the revelation.
Explain the reasons you feel obligated to break confidentiality.
Offer an apology that you cannot maintain confidentiality.
Offer them the opportunity to make the revelation themselves in your presence.

If you decide to maintain the confidentiality of your adolescent patient, what are some of the ways confidentiality may not be maintained?

Mark Siegler has asked whether confidentiality is a "decrepit concept." He had a patient express his concern over the number of people who appeared to have access to his inpatient chart. Siegler counted 75 to 100 people with legitimate reasons to be looking at the chart. When he informed the patient of this, his reply was: "Perhaps you should tell me just what you people mean by 'confidentiality!'"

Likewise, when a physician at an East Coast institution had an HIV test done at his home institution, within hours he had acquaintances approaching him to offer their sympathy.

In this case, the girl was notified that her pregnancy test was positive and persisted in her request that her mother not be told. Does she need to know about other ways her parents may find out about the test result even though you have promised not to divulge that information without her permission?

If she is covered by her parent's insurance, they will receive a bill. The bill might be itemized, including some mention of a pregnancy test.
If her parents were to request a copy of her medical records, they would likely receive all of the information it contained. Many offices have no strategy for identifying information in the medical record that the adolescent would have wished to remain private.

Conclusion With Suggestions

Have a standard discussion with all adolescents at the beginning of a visit (warning of limitations on your ability to maintain confidentiality):

"What you tell me here is between you and me. I will not tell your parents or others about what we have discussed without your permission.

"However, I want you to be aware that there are certain circumstances under which I will not be able to keep that promise. For example, if what you tell me suggests that you intend to harm yourself or place someone else at risk of serious harm, I will need to share that information.

"You should also understand that your parents will get a bill for this visit and may ask you about it. That bill may have the names of tests that we do today…"

If there is no mechanism in place to restrict access to the records of adolescent patients, they should be warned that parents may have access to their records (if they request them), and that you may not be able to prevent that possibility (even in states that respect minors' desire to have records not be revealed to parents, it may happen inadvertently).

Make a plan with the adolescent regarding follow-up of lab results and billing to assure confidentiality.

Do not leave messages on answering machines. Likewise, recognize that fax and email communications can easily be sent to the wrong person.

Make a plan with the adolescent regarding how she wishes to be contacted by you for follow-up on lab results.

Confidentiality and Adolescents

1. Instructor's Guide 2. Student's Guide 3. Case Discussion

This instructor's guide was developed by Douglas S. Diekema, MD, MPH, director of education, Treuman Katz Center for Pediatric Bioethics and Palliative Care, Seattle Children's.

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Case Study on Confidentiality

Confidentiality case study:.

Confidentiality is the necessity of following the rules which prevent from the loss of information or prevent the third people from the access towards the important information.

Confidentiality is a serious issue which can be observed from the point of view of different disciplines and branches of the human life. Confidentiality is met in politics, law enforcement, healthcare, education, business, science, etc. It is natural that everyone wants to keep important facts and data in secret and limit the access of the third people towards these facts and the term of confidentiality touches upon directly these matters. Speaking about business, confidentiality is understood as the behaviour which prevents rival companies from the access towards the data about the activity of the company, the sources of its income, the secrets and formulas of its production, its technologies, etc.Without confidentiality the fair business competition would be impossible (the companies would steal ideas from one another all the time). Confidentiality in juridical system is very important, because the majority of the clues and evidence are provided secretly.

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Witnesses are afraid of sharing valuable information about the criminal on public and they prefer staying unknown sharing the facts confidentially. Confidentiality helps officials and important organizations store the information in the safe way, because the information can be stolen, used illegally for the personal advantage, altered, used for the harmful purposes. There are many laws which are supposed to protect personal information in confidentiality in order to prevent the use of this data for the negative operations.Confidentiality is a useful topic for the analysis, because the student receives information about the value of confidentiality in the human activity and in the existence of the public and private organizations. The case study is based on the definite matter which has to be researched in detail.

The young person can collect information about the importance of confidentiality in the case and evaluate the effectiveness of this rule on practice. The student is able to analyze the cause and effect of the selected problem and generate his own approach towards the solution of the issue on confidentiality which would be accepted by the professor.The process of the organization of a case study is quite difficult, so the student is able to find the answers to the questions on writing following the manner of writing of the free example case study on confidentiality statement prepared by the professional writers in the Internet. The young person is able to take advantage of a free sample case study on breach of confidentiality written by the expert who is aware about the standards and rules of writing and formatting of the paper.

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PDF MAINTAINING CONFIDENTIALITY IN ACADEMIC WORK
PSP. Mark Penalty = Student receives a mark of zero. Mark penalties; where maintaining confidentiality is a key aspect of an assessment this should be made clear to students in the assessment brief. Students should be made aware of the above table. References: Health and Care Professions Council (2010).
Guidelines on the writing and use of case histories
The HGI endorses the principles contained in this statement, both in relation to case studies and with regard to wider issues of client confidentiality. "Standards of conduct, performance and ethics — duties of HPC's registrants "2. You must respect the confidentiality of service users. ...
Shhh! Tips for Writing a Case Study When Confidentiality Is Required
Avoid fluff. Resist the urge to compensate for a lack of details by adding filler to pad things out. The key to writing any good case study is to tell a good story (which starts with a good interview, by the way), but good doesn't have to mean overloaded with unnecessary description. Your available "real estate" limits the number of ...
PDF Privacy and Confidentiality
some case studies and reﬂect on how to apply the concepts we learned in the ﬁrst chapter to situa7ons that could result in privacy breaches. 2 This presentation is the second of two webcast chapters about privacy and confidentiality. The first chapter was an overview of your obligations and accountabilities related to maintaining the privacy
Confidentiality in the Age of AIDS: A Case Study in Clinical Ethics
This article presents the case of an HIV-positive patient who presented the treating physician, a psychiatrist, with an ethical dilemma. We provide the details of the case, identify the ethical issues it raises, and examine the ethical principles involved. In their article, "Confidentiality in the Age of AIDS," Martin L. Smith and Kevin P. Martin present a complex case in clinical ethics.
The importance of consent in case reports
Case reports provide important learning opportunities but risk breaching patient confidentiality. Confidentiality is one of the fundamental tenets of modern medical ethics. 1 Patients expect that information they share with their healthcare providers will remain confidential. Such trust allows open and honest reporting of symptoms and medical history, which is crucial to developing the correct ...
Case Analysis: Breaching Patient Confidentiality and Privacy
Case Study. The use of digital communication such as EHR, email, social media, or the internet has become the norm in healthcare (Lo, 2013). However, the use of digital communication poses risks of breaching patient privacy and confidentiality. The following case study illustrates inappropriate use of digital communication: Trista was a new ...
PDF Case Study I. Privacy/Confidentiality
of confidentiality in the use and disclosure of information. Principle 3. Preserve, protect, and secure personal health information in any form or medium and hold in the highest regard health information and other information of a confidential nature obtained in an official capacity, taking into account the applicable statutes and regulations.
The use of confidentiality and anonymity protections as a cover for
Anonymity and confidentiality protection can also be used as a cover for fraudulent studies that report quantitative research findings. The three committees that investigated the data fabrication and falsification case in social psychology by researcher Diederik Stapel asserted that 'trust forms the basis of all scientific collaboration.
ROC Case Study
ROC Case Study - Confidentiality. These case studies are examples to help you to apply the Rules of Conduct in situations that may arise in your professional practice. When making ethical professional decisions, you need to: use your professional judgement, which may require you to balance different interests and principles.
A pragmatic approach to confidentiality claims in litigation
Confidentiality is not, by itself, a reason for documents to be withheld from disclosure. There are obligations set out in the Civil Procedure Rules (CPR 31.22) for parties to proceedings to use documents they receive from another party only for the purpose of the proceedings, until the documents are read out or referred to in a hearing in open court.
Patient consent and confidentiality
Patient consent and confidentiality. When publishing personal information about identifiable living patients, we require a signed copy of our patient consent permission form. This form is available as a pdf and in multiple languages. Authors should seek the patient's consent to publication before submitting any article.
Case Discussion: Confidentiality and Adolescents
The duty of confidentiality is based on four major arguments: The principle of respect for autonomy or respect for persons. Respect for autonomy, or respect for persons, calls for us to allow others to decide who they want to know certain details about themselves. Respecting others and caring for them should create in us a disposition to ...
Confidentiality and public interest disclosure: A framework to evaluate
GMC guidance on safeguarding for adults is consistent with its general guidance on confidentiality. A link to a case study at the bottom of the web ... care professionals and agencies only when the interests of patient safety and public protection override the need for confidentiality'. 125 This statement appears to exclude disclosure to ...
Ethical Dilemmas of Confidentiality With Adolescent Clients: Case
This study follows on from a previous quantitative survey of psychologists about confidentiality dilemmas with adolescents. The current study used qualitative methods to explore such dilemmas in greater depth. Twenty Australian psychologists were interviewed and asked to describe an ethically challenging past case.
Breach of confidentiality
Standard 9. Be honest and trustworthy. Standard 9.1. You must make sure that your conduct justifies the public's trust and confidence in you and your profession. Standard 10. Keep records of your work. Standard 10.3. You must keep records secure by protecting them from loss, damage or inappropriate access.
Protecting Respondent Confidentiality in Qualitative Research
The Case of Rachel. My concern with respondent confidentiality began during my dissertation research (Kaiser, 2006).My dissertation examines how women who have undergone treatment for breast cancer perceive the identity of cancer survivor and how cultural notions of survivorship affect their adjustment to breast cancer (Kaiser, 2006; 2008).Data for my dissertation came from in-depth interviews ...
Breaching confidentiality and 'empowerment'?
ABSTRACT. This case study evaluates my experiences as a student social worker relating to safeguarding procedures, sharing of information and breach of confidentiality within a community-based, third sector organisation providing gender-specific services to vulnerable females. Concerns existed regarding the underlying ethical processes involved ...
HIM 203 Chapter 9 Case Study
Confidentiality Statement. Written in red are the adjustments to the confidentiality statement for the professional. practice experience (PPE) Instructions. Your HIM department at Pine Valley Community Hospital accepts students as part of their professional practice experience (PPE).
Full article: The conflict between maintaining confidentiality in
To explore the question of the court's view regarding a social worker's dual obligation to maintain client confidentiality and to protect the safety of minors, I used a case study (Platt, Citation 1992; Yin, Citation 2012). This approach is appropriate when investigating a phenomenon or seeking an explanation for it.
Confidentiality and Privacy: Case Studies
Confidentiality and Privacy: Case Studies. To help you reflect on your practice and apply the concepts discussed in Confidentiality And Privacy: An Overview to ...
L&E_Ch.9_AHIMA Case Study 2.21_Answer.docx
Law & Ethics Ch.9 AHIMA Case Study 2.21 Confidentiality Statement Policy: PINE VALLEY COMMUNITY HOSPITAL PPE CONFIDENTIALITY AGREEMENT Pine Valley Community Hospital (PVCH) values protection of confidential information concerning patients, their families, medical staff, co-workers, and hospital operations as well. PVCH and the student signing this agreement agree to protect the privacy and ...
Case Study on Confidentiality
Confidentiality in juridical system is very important, because the majority of the clues and evidence are provided secretly. We Will Write a Custom Case Study Specifically. For You For Only $13.90/page! order now. Witnesses are afraid of sharing valuable information about the criminal on public and they prefer staying unknown sharing the facts ...

Guidelines on the writing and use of case histories

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Case Discussion

Is there a general duty of confidentiality, and what is the basis for this general ethical rule?

Is there an obligation to maintain confidentiality when the patient is an adolescent?

Doesn't the law require we tell parents these things?

How will you strategize what happens next, e.g., sending a test while the girl waits, but not telling the mom what has been done?

What if her mother asks what tests you are doing?

Is it ever appropriate to violate the duty of confidentiality? If so, under what conditions?

What are some examples where breaking the rule of confidentiality might be justified?

What about harm to self? Is your feeling that the adolescent might harm herself or that she might later regret her decision sufficient reason to break the rule of confidentiality?

If you decide you must break confidentiality, what are your obligations to the adolescent patient?

If you decide to maintain the confidentiality of your adolescent patient, what are some of the ways confidentiality may not be maintained?

Conclusion With Suggestions

Confidentiality and Adolescents

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Confidentiality and Privacy: Case Studies

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