On medical confidentiality
Gonzalo Herranz
1. The doctor-patient relationship is established on a basis of mutual trust. It is based on respect for the patient on the part of the physician and is primarily aimed at restoring or maintaining the patient's health. Part of this respect is the obligation to keep silent about what the patient communicates to the physician about his or her particular state of weakness.
2. The doctor must keep secret everything that the patient reveals to him, by the very nature of the things entrusted to him, by the specific purpose for which these things are revealed to him, and by his often tacit commitment, but which the patient knows, to keep silent about what he sees, hears or understands in the exercise of his profession. It is therefore a professional secrecy that is both natural by the very nature of what the patient entrusts to the doctor, promissory in that the doctor has undertaken, by virtue of being a doctor, never to reveal what the patient tells him, and commissory in that the patient reveals a series of facts for a specific purpose, with the implicit condition that they will never be revealed to others. This behaviour is a traditional value of the medical profession, attested to by all codes and declarations of professional ethics in the history of medicine1 .
3. a) The personal health pursued by the doctor-patient relationship is, in principle, a strictly private good, although it may have repercussions in other areas (work, family, social, etc.). The confidences made by the patient to the doctor should therefore only be used by the doctor with a view to the patient's health.
b) The patient is the first person to be informed by the doctor of everything concerning his or her state of health. Moreover, the patient may have access to his or her medical records, with the logical exception of some mental illnesses and some peculiar borderline situations). The patient's relatives or legal representatives do not, in principle, have the right to know what concerns the patient's health, although it is generally presumed that the patient does not want to hide anything about his condition from them; therefore, if there is no indication to the contrary from the patient, the relevant information can be given to the relatives. However, if the patient does not want his or her relatives to know anything about his or her health, as long as this would not be harmful to them (e.g. if it is a contagious disease that could affect the family), his or her wishes must be respected.
(c) When asked by strangers, the press, the public, acquaintances or friends about the patient's condition, the physician should refer them to the patient himself or, in any case, to his relatives, who will judge whether it is appropriate to inform or to remain silent. On the other hand, it is indelicate and a manifestation of officiousness and indiscretion on the part of the medical staff of a hospital to ask the attending physicians about the patient's state of health. The doctor, who is a friend of the patient but does not attend him, if he wishes to know anything about his friend's illness, should go to the patient himself or to his relatives.
4. a) The obligation of confidentiality applies, in the first place, to doctors who are professionally involved with the patient, whether at enquiry or during complementary examinations, specialist care, etc.; also to all paramedical personnel (nurses, medical and nursing students, clinical assistants, laboratory, etc.); and to all non-medical personnel who in any way participate in the care of the patient (non-medical personnel in a hospital, such as cleaning, secretarial and office staff, public relations, etc.).
b) To avoid the secrecy having to be shared by many people, it is advisable that the name of the patient does not reach those who do not necessarily need to know it. Thus, samples sent to laboratory can be labelled with a simple number, or documents bearing the patient's name should not contain, as far as possible, details of his or her medical history. When charging the medical enquiry it is not necessary to list on the invoice the department where you have visited, or the diagnostic tests you have undergone, when a generic description may suffice. These small details of discretion and delicacy reflect the deontological quality of a good professional.
c) These precautions with the data entrusted by the patient must be extended to their computer processing, to their transmission by telephone, to tape or video recordings, to studies for scientific work, to the safekeeping of medical records to which not just anyone should have access, and to everything that is done with the patient's data. The good of the patient must always be sought in everything that is done. Secrecy must be all the more jealously guarded the more serious problems the disclosure of the patient's privacy may cause (AIDS patients, prenatal diagnosis of the sex of a child of pro-abortion parents, drug addicts, pre-employment health examinations, homosexuality, sexually transmitted infections, etc.).
5. Medical confidentiality may be waived only when a greater good is at stake, such as the health of others (infectious diseases, for example), or other social goods of a higher order (legal proceedings involving the prosecution of innocent people, etc.). In these cases, and only in these cases, the physician may disclose what is strictly necessary to serve this overriding purpose, in order to avoid greater harm, but must withhold all other patient confidences. In many cases it will suffice to report cases of illness generically, without revealing the names of the sick.
6. In short, patient confidentiality puts the physician in a privileged position and his or her information should be jealously guarded in all circumstances2. Frivolity or flippancy should therefore be avoided when discussing circumstances of patients who have been seen on enquiry, especially in the hospital, where an atmosphere of indiscreet officiousness sometimes dominates and erodes the confidence of patients.
Notes
(1) By way of example, see. HYPOCRATIC OATH, 7th-5th centuries BC, apt. H: "If in my medical practice, or even outside it, I see or hear anything that relates to the lives of men and should not be divulged, I will keep it secret. I shall keep secret everything that might be disgraceful if people knew"; CODE OF MEDICAL DEONTOLOGY, Madrid 1979, art. 43: "Medical confidentiality is inherent to the practice of the profession and is established for the safety of the person of the patient. Professional secrecy is obligatory for all physicians and no one may be exempted from it. The confidentiality covers everything that reaches knowledge of the physician in the exercise of his profession: not only what is entrusted to him, but also everything that he may have seen, heard or understood"; GENEVA DECLARATION, Geneva 1948: "At the time of my admission as a member of the medical profession, I solemnly promise (...) to keep and respect the secrets entrusted to me, even after the patient has died".
(2) In Paris, in the Domus Medica, the headquarters of the Ordre National des Médecins, there is a large marble plaque on which one can read a formidable eulogy to the French doctor class who, under Nazi occupation, was able to treat many wounded resistance fighters without a single one of them failing to maintain secrecy. The same happened, at the risk of their lives, to hundreds of Dutch doctors.