This article will explore how confidentiality should be conceived and if and when it should be broken.The physician’s duty to keep patient information confidential dates back at least to the earliest codes of medical ethics.As important as patient confidentiality is, there are certain times that most people would agree that medical (doctor-patient) confidentiality needs to be waived.For instance, parents need to have access to their kids’ medical information, which makes sense to most people, since children don’t have the capacity to manage their own medical situations themselves.The obvious solution is to go to court, but this means making public the information they did not want anyone to know in the first place!Therefore, it is important to develop "front-end" safeguards that prevent unauthorized breaches from occurring.For example, according to the medical ethics scholars Tom Beauchamp and James Childress, confidentiality protections can be justified using three types of arguments: Interestingly, none of these philosophical arguments suggests that confidentiality should not be breached under certain circumstances.Again, it is a matter of weighing the pros and cons between keeping and breaching confidentiality.
One definition of confidentiality is based on contract law: the idea that there exists an implied promise in all physician-patient treatment relationships not to reveal information gained as part of that relationship.
In some ways, the fiduciary model makes sense in the medical setting — the patient is clearly a vulnerable party. These are the kinds of questions that are important to consider, and difficult to answer using legal theories of confidentiality.
But in reality, physicians do not fit into the fiduciary model so well as they often have responsibilities to promoting the health of the broader population in addition to the specific patient, and fiduciary theory is not so easily applied when determining how and when confidentiality should be waived. Since neither contract nor fiduciary theory provides clear guidance in defining the scope of confidentiality protections, perhaps we should think about general privacy protections, like those found in the federal or state constitutions, or in common law, in order to address confidentiality.
Fiduciary theory would state that it should be to benefit the vulnerable party. Privacy is usually thought of as a "fundamental" right, and there are a variety of legal protections that may fall into this category, like protections of one’s home, body, and personal information.
The problem is that personal information (which is what’s at stake with medical confidentiality) is not protected at law in the same way one’s home or bodily integrity is protected.
In fact, quite a lot of personal information is not protected at all.