Medical ethics and its relationship to medical records and confidentiality
Gonzalo Herranz
department of Bioethics, University of Navarra
III National Health Law congress
roundtableThe new penal code and its repercussions on confidentiality and medical records.
Madrid, October 25, 1996
A. The clinical history in crisis
B. rule deontological and medical history
C. Medical ethics and confidentiality
Greetings and thanks
Few new things to say: a few ideas on the deontology of medical records and medical confidentiality, which I select on the basis of their interest for medical law.
To begin with, it is no exaggeration to say that the relationship between ethics and medical records and medical confidentiality has never been as intense or as critical as it has been in recent years. It is clear that medical records and confidentiality are caught up in a strong field of ethical-professional and legal tensions that are changing their meaning and function.
A. The clinical history in crisis
1. The clinical history, especially that of the hospitalized patient, has changed in its function. From being a financial aid for the physician's report and a file of symptoms, exploratory and analytical data and observations on the effects of treatment, which facilitated patient care, it has also become an information tool for the health care team, and subject for the biomedical research , for economic analysis, for administrative control, for judicial disputes, for the teaching, for the audit of skill professional.
2. It is changing in its structure, since, for the convenience of bureaucracy and computerization, rigid frameworks are imposed on it. The multiple uses to which it can be put favor a reticent attitude on the part of the physician, since the history passes through many hands: this endangers the confidentiality of the data and invites the physician not to take comments to the limits of the sensitive. It loses spontaneity because, in writing it down, the physician may be more concerned with his own safety than with the patient's interests. The history thus becomes one more element, and a very important one, of defensive medicine.
3. Its content and, with it, its "literary genre" has changed profoundly: today, more than narrative and biographical, more than a archive of the patient's accounts and the physician's observations, the history is a mosaic of almost telegraphic annotations, structured by problems, written by many physicians, containing technical-objective data , from which commentary, recapitulation, diagnostic doubts, and prognostic considerations are often absent.
4. The histories of complicated cases, some of which may end up before a judge, tend to be chaotic, voluminous, impossible to analyze by the same physicians who create them. Their very complexity encourages impatient, unreflective behavior on the part of physicians, who easily omit what is important.
5. The content of the history must be respectful of the patient. They cannot contain injurious or derogatory remarks to the patient, as this would not only be inappropriate, but also imprudent. It seems inevitable today that the right of access to one's own medical history should be added to the list of rights already enjoyed by patients. And although Spain has not developed the rules and regulations on patient access to their medical records, art. 61 of the General Health Law establishes without a doubt that the information relating to each patient must be available to its owner. A related question is whether the patient is the one who may keep his medical records and take them with him to his meetings with the physician. In any case, the patient's right to retain, inspect and obtain a copy of his own history is obviously a very persuasive reason in favor of it being written in respectful terms. The quality of records has increased in countries where patients exercise this right.
B. rule deontological and medical history
1. All codes of ethics state that it is the obligation of the physician who treats a patient to open, update and keep the corresponding medical record. Faced with a very broad indetermination of the physical characteristics and contents of the medical record, our Code of Medical Ethics and Deontology declares that its essay is both a duty and a right.
2. Histories, deontology proposes, must be complete, orderly and intelligible. Those that are incomplete, disordered, illegible or impossible to interpret are, from the point of view of both professional ethics and medical law, potentially disastrous. They must strike a balance between flexibility and formalization. They must also be authentic: all entries must be dated and must bear the signature or signature of the person who made them. This rule particularly concerns computerized records, which are more susceptible to apocryphal invasion than paper records.
It is understood that the requirement that all medical acts be recorded in the medical record is particularly important when the same patient is treated, in the hospital or at the outpatient clinic enquiry , by several physicians. This raises the arduous problem of the unity/plurality of medical records, which the aforementioned art. 61 of the General Law on Health favors integration in a single document.
4. The annotations that the physician makes in the history must be truthful. He/she cannot enter false or fictitious data . Corrections are not made by crossing out or overwriting, but by means of duly marked rectifying annotations. Nor can you modify a previous annotation with intent to deceive. This would obviously constitute a document forgery offense. The fraudulent falsification referred to here is quite different from the removal of certain data that the patient requests from the physician, or the suppression, in copies of the history requested by the patient or the judicial authority, of those subjective comments or value judgments added by the physician that do not form part of the objective information requested.
5. The obligation, staff as well as the institutional one, to keep medical records for a long period of time is becoming more and more important as microcopy or computerized procedures become available, which facilitate both the conservation of large volumes of documentation, both written and graphic, and access to it. The forthcoming version of the Code of Medical Ethics and Deontology requires that, prior to the destruction of medical records, the physician must consult and obtain the authorization of the patients who are the owners of the records.
6. The preservation of records, whether paper-based or electronic, includes their protection against undesirable events, whether deliberately induced or fortuitously occurring, which could result in the desecration of confidentiality, the knowledge dissemination, the modification or partial or total destruction of individual records or complete files. It is the obligation of the physician and, if applicable, of the hospital or health care institution, to provide internship with the means to prevent unauthorized access or use, falsification or elimination of data, theft, malicious adulteration, and accidental loss or destruction of records or files.
7. And it is also mandatory to development of procedures to retrieve from file the records for legitimate purposes, especially for the continuity of the attendance. These procedures must make speed and efficiency compatible with security and proper control.
8. The accidental loss of medical records is frequent. It can affect up to 5% of them. The epidemiology of total or partial disappearance of hospital medical records has been studied. Deliberate destruction aimed at eliminating compromising information for a physician or nurse is exceptional. The most frequent causes, from which the use of information technology will not be totally free either, are misfiling, misplacement inside or outside the hospital, unintentional deletion of information, retention of records in other clinical services, and misallocation of information from one patient to another.
9. Histories and archives are, from an ethical point of view, open to the research. There is a general duty to broaden the domains of science that affects the medical profession. But the ethics of the research and of the publication of its results require strict respect for the patients' right to privacy. research and publication can only be carried out after making it impossible to identify the patients, through the use of numerical or other codes subject.
10. The patient has the right to demand from the physician or the institution that holds the medical record that certain data contained therein be deleted or modified. And also that they be transmitted to another physician. To such requests, the physician must cooperate willingly. In the latter case, he may, of course, charge fair financial compensation for obtaining the copies, but it is ethically improper for him to demand a deposit in exchange for the X-rays or other material elements of the diagnosis that he leaves on loan temporarily.
11. Finally, from the point of view of medical ethics, the question of the availability of the medical history at the request of the judge is problematic. It is claimed by some that the judge has absolute access to the medical records. However, it does not seem difficult to argue that the judge himself is obliged to respect the privacy of individuals and that, therefore, he does not have an omnipotent or discretionary power to demand its submission. To a great extent, the matter would be simplified if in its proceedings the judicial authority were to determine precisely in each case whether what it needs from the physician is a clinical report on certain points that may be contained in the medical history, or the same history in its original or in a photocopy. When the judicial authority needs the complete medical history, it should indicate the reasons for doing so, since it cannot forget that it is the duty of the physician not to relax, under any circumstances, his duty to preserve the confidentiality of the documentation that he has in his custody. It is obvious that the physician can occupy very different positions before the judge: sometimes he/she can be a complainant, sometimes a defendant, sometimes an expert witness, sometimes a witness. It would be unethical for the physician to invoke confidentiality as a cover for his incompetence or negligence. But it is in accordance with deontology that the infringement of patients' privacy should be reduced to the minimum possible.
C. Medical ethics and confidentiality
1. Chapter IV of the Code devotes its entirety to the professional confidentiality of physicians. It begins by stating that it is inherent to the practice of the profession, that it is a right of the patient, that it protects his safety, that it is universal in a triple sense: it affects all physicians, whatever the modality of their practice; it includes the entire relationship between physician and patient; it transcends time: the death of the patient does not release him from his duty of silence. The physician must demand absolute discretion from his collaborators. The work in team of physicians does not make this duty disappear. The directors of health care institutions must create an atmosphere of delicate and intense respect for confidentiality.
2. The application of computerized systems cannot compromise the right to privacy of individuals. A physician must be responsible for the file of medical records and the banks of data. These may not be connected to non-medical computer networks and must be protected against invasion by outsiders.
Finally, the Code regulates the legal, health, corporate and ethical derogations (protection of third parties, or of the physician himself, against threats and harm induced by the patient) of confidentiality. There is an immovable principle: the disclosure of the secret, governed by legal or statutory rules, must be made with discretion, exclusively to whom it has to be made, and within its just and restricted limits. This principle of reservation, of disclosing what is strictly necessary, of keeping the patient's privacy as intact as possible, must be jealously maintained, as it is a social asset that cannot be squandered.
3. In the legal statutes, the field of derogations from confidentiality is expanding, an acceptable evolution if such a sacrifice of the privacy of the doctor-patient relationship is at the service of higher human rights and goods: denunciation of the intention to harm third parties, denunciation of those who are unfit because of illness to drive cars or airplanes or to own weapons, of those suspected of abusing children or the helpless, of the colleague who sexually abuses his patients. But, sometimes the physician is asked to disclose sensitive information that does not seem to serve a higher cause, but mere efficiency management assistant. The physician may, for deontological reasons, oppose such demands.
4. It would be desirable that the legal regulation of the physician's professional secrecy be introduced soon, which would consolidate the penalties threatened against those who violate this very human duty of respecting the privacy of others. It would also be very interesting if this rules and regulations would grant the recognition of privileged secrecy, never derogable, to the confidences between psychiatrist and patient, whose intimacy does not yield to others that, like the communication between husband and wife, or between lawyer and client, enjoy this special privilege. The Supreme Court of the United States has just done so.
5. The immediate future is full of challenges. The intensity and extent of the duty of confidentiality will have to be negotiated in order to obtain the formidable advantages that information technology applied to the physician's work can bring. This negotiation will have to be based on the principles of parsimony, transparency, and accountability, without ever losing sight of the fact that we are dealing with an enormously delicate and valuable subject . No matter how much things change, no matter how great the potential benefits, it will always remain true that secrecy is inherent to the practice of the profession.