Transcript Kenneth Kipnis

Kenneth Kipnis
A Defence of Unqualified Medical
Confidentiality
Confidentiality and Professional
Obligations
• When, if ever, can an MD’s obligation to patient
confidentiality be broken?
• The Case of the Infected Spouse
• Both husband and wife are patients (or wife was
a patient?)
• Husband seems to have contracted AIDS since the
have separated.
• Wife and husband reconciling but husband
doesn’t assure MD he will inform wife of
husband’s infection.
Reasons to break confidentiality
•
•
•
•
1) MD knows H is infected and infectious.
2) MD reasonably believes W is not infected.
3) W’s vulnerability is both serious and real.
4) Assuming that preventing W’s infection is
the goal, it is probable that, if W knew of H’s
infection, she would avoid exposure.
• 5) W is not a mere stranger but bears an
important relation to MD – she’s his/her
patient.
Kipnis disagrees
• Misunderstandings about “professional
obligations” Often taken as
• 1) What the Law requires, or
• 2) one’s personal morality, or
• 3) what’s required by one’s deepest personal
views
• Kipnis argues that it is none of these.
Law
• Tarasoff case
• UC Berkeley psychologist informed by patient
he was going to kill his girlfriend. Although
patient briefly detained, he was let go and he
killed his girlfriend. Berkeley sued successfully
because they didn’t inform Tarasoff: “The
protective privilege ends where the public
peril begins.”
Law
• Seems to have a straightforward application to
Infected Spouse case where MD obligated to
tell W.
• But ...
• There’s a difference b/w “special” and
“general” legal duties. Typically, we have few if
any “general” legal duties to protect others.
Most of them are “special” duties, like the
ones health care workers have.
Law
• There’s also a difference b/w legal and moral
duties.
• A legal doesn’t always entail a moral duty.
• Too often, we place professionals (& their
‘special’ legal duties) in untenable position where
fulfilling legal duty is inconsistent with their
ethical duty. Eg., reporting child abuse when state
system doesn’t work; journalists having to tell
their sources. This needs to be corrected.
Personal Morality
• Morality as ‘mores’ – those beliefs we grow up with.
• Pluralistic vs. mono-valued societies
• Professional codes vs personal morality (e.g.,
Jehovah witness MD and blood transfusions)
• Ethics vs Mores
• Professions need to move beyond mores to reach a
responsible consensus on professional standards.
• Can this be done for MD’s by, e.g., not working in
various fields &/or referrals?
Personal Values
• Personal values vs. professional ethics
• ‘What should I do?’ vs. ‘What should a good doctor
do?’
• Personal values don’t entail a moral action (e.g.,
Hannibal Lecter)
• We shouldn’t appeal to personal values when
deciding what MD’s should do – nor should we
appeal to the law, institutional practices, or personal
mores.
The concept of a Professional
Obligation
• “Core Professional Values” E.g.,
trustworthiness, beneficence
• Two vectors: (1) Shared aspirations; (2)
bottom line.
• Priority rules for when core values conflict
• Removal of ambiguity for cases when core
values are unclear.
3 further elements to professional
obligation
• (1) Core values part of professional education
• (2) Core values represent goods that the
public wants and expects of members of the
profession.
• (3) exclusive reliance on the profession
through monopolies
The (Professional – not Personal) Duty to
Diminish Risks to third parties
• Standard interpretation.
• Because the risk to an individual is grave and
immediate, the duty to inform outweighs duty
to confidentiality.
• Hence, duty to confidentiality is conditional
and qualified. I.e., it holds in some/most
situations, but not in all.
Kipnis disagrees: argues for a duty to
unqualified, absolute confidentiality
• What effect will a conditional, qualified
confidentiality have on patients?
• Kipnis argues it will result in fewer patients
going to physicians to reveal info that want
kept confidential: e.g., HIV and Japanese going
to Hawaii to get tested because Japanese
doctors didn’t keep patient HIV infection
confidential.
Looking closely at the
consequences
• The Infected Spouse case seems to be a case where
we break confidentiality to achieve best
consequences. Kipnis thinks this is false since it fails
to consider: (i) that patients that are willing to have
their information disclosed will sign a waiver of
confidentiality; (2) those that won’t sign a waiver will
NOT go to their physician. Hence, breaking
confidentiality does NOT produce the good
consequences you hope for and puts confidentiality
at risk.
Questions
• Act vs. Rule Utilitarianism
• Moral distress and residue (from doing things
against personal values but required by
professional values).