Dr. Smith, a professor of Moral Theology at Duke University, is a frequent contributor to Linacre. His article examines the subtleties and intricacies which arise from the question  who is entitled to know what from whom

Smith, Harmon L.

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The Linacre QuarterlyVolume 41 | Number 3 Article 13August 1974Professional Secrecy: A Vincible RightHarmon L. SmithFollow this and additional works at: http://epublications.marquette.edu/lnqRecommended CitationSmith, Harmon L. (1974) "Professional Secrecy: A Vincible Right," The Linacre Quarterly: Vol. 41: No. 3, Article 13.Available at: http://epublications.marquette.edu/lnq/vol41/iss3/13Professional Secrecy: A Vincible Right Harmon L. Smith, Ph.D. Several years ago there was a flurry of interest and activity among university faculty and un-dergraduates who were concerned about the inclusion of extra-aca-demic information on transcripts. That a transcript itself was avail-Dr. Smith, a professor of Moral Theology at Duke University, is a frequent contributor to Linacre. His article examines the subtle-ties and intricacies which arise from the question "who is en-titled to know what from whom?" August, 1974 able, e.g., to prospective em-ployers,only by permission of its putative owner (that is, the stu-dent) was little comfort if the document conveyed disciplinary or other information incidental to academic performance. This prob-lem was resolved in many uni-versities by separating academic from other student records. In the 1970's sickle cell disease became a national health concern of enormous proportions, federal budgeting for programs increased dramatically, and several states adopted legislation which requires screening for the disease. Despite the apparent and obvious bene-fits which derive from heightened concern for both carriers and af-fected patients, some persons have protested that employment and insurance eligibility have been affected by their having been identified as heterozygous asymptomatic carriers and that public programs for mandatory 217 screening constitute an invasion of privacy. The proposal, in the 1960's, to create a unified national data system met insurmountable (at least then!) objections from many sectors of the general public. Now something similar- though clear-ly more modest - is being pro-posed (in some instances already rudimentarily operative) for com-puter-based medical records. But because of the evident risks to "medical privacy" both physi-cians and patients are concerned about the security needs for such a system and whether the present level of privacy for sensitive medi-cal data , or protection of privi-leged medical communications, can be guaranteed. Conflicting Loyalties Most people have by now seen enough of "Marcus Welby, M.D." and "Medical Center" to know that professional secrecy is rather more complicated than the pro-verbial coathanger. And many others of us have first-hand awareness of the problems asso-ciated with privileged information from our experience in examina-tion rooms or confessionals. But the problem of confidentiality is not unique to physicians or priests, or professors or program-mers - it is genuinely problem-atic for every situation, profes-sional or not, in which one has access to another's personal af-fairs which would otherwise re-main private. The nub of the problem has fundamentally to do with con-218 flicting loyalties - both of which, it can be argued, are relatively appropriate but neither of which, it can also be argued, is either al-ways or universally overriding of the other. At stake, in matters of professional secrecy, are not only debated protocols which fit pro-fessional identity and function but an enormously complex web of inter-professional and inter-personal relationships as well. "Who is entitled to know what from whom?" is one way to for-mulate the question; but under-lying the apparent simplicity of that query are many other subtle and intricate puzzles. Among these are "what do you know?" and "whose information is it?" and "are we ever or always obli-gated to tell less than we know?" and "what are we to do when the interests and needs of a private individual appear to conflict with, or perhaps threaten, the larger public welfare?" One of my physician friends , who has had extensive experience in genetics counseling, is con-vinced that there are some situa-tions in which telling the whole truth will result in more harm than good; and he has cited two cases in . support of his view. In one case, a child's genetic dis-order opens the possibility of non-paternity - i.e., the husband's genotype indicates the he may not be the child's father. In the other case, a four-year-old child had multiple congenital malform-ations and there was a question of possible chromosome etiology. On Linacre Quarterly examination the child was found to be a 45,Xj 46,XY sexual mo-saic. Because the mother had al-ready undergone considerable psychic trauma - from the belief that her child was being punished for something which she had done - the physician decided that it would be more than the woman could bear to tell her t.hat the child had a sex chromosome ab-normality in addition to congeni-tal malformations - which in-cluded mental retardation, club-foot, and a heart defect. "The Whole Truth" Both of these cases have to do not so much with protecting in-formation which was obtained under a pledge of confidentiality but with denying access to in-formation which was sought by diagnosis. Perhaps more impor-tantly for our purposes, here, both these cases raise the ques-tions, "what do you know?" and "whose information is it?" It is clear that in neither instance does the physician have "the whole truth" - that is, he cannot claim evidentiary certainty in the first case that the husband is not the father; nor can he, in the second case, establish reasonable grounds for heightened maternal guilt since he knows that the child's being a sexual mosaic has nothing to do with inheritance or risk of recurrence. Is the physician then obligated to tell what he does know? Barring the patient's - in these cases, the parents of minor patients - incompetence to re-ceive the information, I cannot August, 1974 imagine (apart from a misplaced paternalism) what warrants would be appropriate for with-holding that knowledge; and this is particularly compelling if the evident answer to "whose infor-mation is it?" is "the patient's." Moreover, since moral respon-sibility depends in large measure upon freedom to act upon alter-native choices, knowledge of facts and options is critical for setting the boundaries of that freedom. I know that ignorance is no excuse of the law; but that is not the case with moral accountability. We certainly assess the moral responsibility of persons in terms of what they do, and by that in-terest signify that consequences of actions are an essential ingred-ient in the decision-making pro-cess; but we are also concerned for the reasons persons act, for the intentions which inform dis-creet choices, because we are aware that (except in frivolous choices) why a decision is taken is quite as morally significant as what was decided and how that decision was acted out. Intention, method, and consequence are the basic rubrics for interpreting and judging the moral worth of moral choices apprehended in their en-tirety. Thus to deprive persons of information appropriate to their choice-making ·is de facto to limit their freedom to elect from among knowledgable alternatives, and in turn to moderate commensurate-ly their accountability for choices and actions. Beyond that, how-ever, the moral web extends to 219 those who deliberately deprive or withhold that information; and they become ineluctably impli-cated in the process. Sometimes the judicial process takes account of a plaintiff's "ignorance" when this has been professionally de-nied, and sometimes the judicial process provides remedy through indemnification or other penal-ties; but it is more probable, be-cause the issue is so difficult to prove, that most people simply live out their lives in whatever bliss or hardship attends that ignorance. The Right to Privacy vs. The Right to Know Occasionally benign neglect backfires. I learned recently of a case in which, during the course of a routine physical examination, the physician found that a female patient had a positive serology and positive smear for gonococ-cus. The patient did not come with that complaint, nor did she intend to tell the physician about her sexual contacts or that she had contracted the disease; but by the very nature of the tests, all this was communicated. That her husband was asymptomatic and that this infection is con-tracted only by venereal contact would appear to be sufficient grounds for a charge of adultery; and that, as it happened, was pre-cisely what the husband did charge when he learned of his wife's infection and subsequently sued for divorce. Did the physician, upon posi-tive diagnosis of gonorrhea, have 220 any obligations to inform the hus-band? (There may be questions of obligation to a larger public -e.g., the public health authorities - but those can be bracketed just now in order to focus on the physician's obligation vis-a-vis the wife's right to privacy and the husband's right to know.) With the wife's consent, the physician is not only free but arguably obliged to tell the husband; with-out the wife's consent, however, the obligations of the physician is clouded by the competing inter-ests of the two parties for whom he might be mediator. This seems to me clearly a case which drama-tizes the ambiguity of profession-al secrecy since to tell the hus-band would violate the confiden-tial information conveyed (how-ever unintentionally) by the wife, while failing to tell the husband would expose him to risk of in-fection and disease. Getting straight about where the priorities lie might free one to alternative considerations; and if the physician and the patient could discuss the possibilities and problems of a case like this with less regard for profesional confi-dentiality, and more sensitivity and concern for what the wife's attitudes and conduct signified about her marriage, the crux of the issue could be exposed. That the wife has a positive diagnosis of gonorrhea does not exhaust (or even precisely identify) the com-plete etiology of this infection; in-deed that positive diagnosis may itself be only symptomatic of a Linacre Quarterly more insidious and farther reach-ing malaise which infects her marriage. The practice of quar-antine for contagious disease would appear to grant the prin-ciple that the right to privacy is vincible when public health or welfare is jeopardized by it. Historically, professional secre-cy has been essentially a matter of protecting the right to privacy; but the professional is, of course, potentially if not actually an in-termediary with respect to the in-formation which has been en-trusted to him. Despite an occa-sional demurrer, my experience is that there is general consensus that these confidences belong, in the first immediacy, to the pa-tient (or client or parishoner) whose prerogative it is to share or withhold confidential informa-tion. There are surely instances in which, because of the mutuali-ty between a professional and a person seeking his services, the professional's own self-interest is sometimes at risk ; but it is pre-cisely out of the priority of the client's well-being - which was the precondition for establishing a confidential relationship - that the client's superior moral claim is sustained. In some cases this is straight-forward enough; but most pa-tients present themselves as par-ties to other relationships -spouse, parent, child - and those bonds cannot be either cal-lously rejected or carelessly neg-lected by physicians or pastors or attorneys who suppose that the unilateral relationship between August, 1974 themselves and their client is the only one of consequence. It is ahistorical to act on that predi-cate, and depersonalizing to everybody concerned. I know that it complicates matters; but is it true - for example, in the case of the gonorrheal wife - that the doctor-patient relationship is ex hypothesi enlarged to include the husband? I tend to think so if the wife and husband understand themselves to be married to each other, since it is the totality of this action - its etiology, com-municability, and the rest-within the context of marriage that constitutes the basic desid-eratum for exposure or secrecy. The "principle of totality" was formulated with respect to the bodily integrity of individuals; but I wonder whether - especi-ally with regard to marriage and family, if not the general public - it might also have applicability to other forms of organic whole-ness. The Public Interest The nexus of the issue lies then in assessing the relative toler-ances between private and public interests, and in defining as pre-cisely as we can the relational networks which mark the bound-aries of those interests. Although the scales are ordinarily heavily weighted in favor of protecting individuals in the disclosure of confidential information, there is a legitimate public interest which sometimes intervenes. That in-terest has customarily been ac-knowledged when there is prob-221 able cause of criminal activity, either prospective or retrospec-tive, or when evidence is required by legal proceedings. So the ex-tent to which the state can legal-ly intrude into confidential rela-tionships, while it varies from state to state according to the definition of "privilege" and the discretion of judges, is prescribed by law. But I mean to raise a rather more subtle question-which sometimes, to be sure, finds its way into the courts - about the moral obligations, which tran-scend the limits of law, of persons in their several relationships. Attorneys are protected by "privilege" from being required to disclose incriminating informa-tion which was given in confi-dence by a client; but attorneys are obligated to disclose informa-tion about crimes committed in their presence or crimes which they may know to be planned for the future. Similar provisions for differentiating "privilege" from "privacy" are provided in other circumstances, e.g., restraints for requiring testimony from spouses. And just now the nation is beset by the complexities of "executive privilege" and the enormous im-plications of this (!oncept, and its execution, for national (to say nothing of constitutional) inter-ests. But professional and person-al relationships, most of us like to believe, are at most only tan-gentially amenable to juridical models of contracts and checks-and-balances; and at this level it may be more appropriate to talk of trust and fairness and honesty 222 than of statutes or judicial proc-esses or criminal penalties. Indeed, it is arguable - and compellingly arguable in view of past experience - that judicial encroachment into professional secrets is counter-productive un-less instrusions remain clearly ex-ceptionable to the general rule not to expose professional confi-dences. Functional counter-pro-ductivity is already illustrated by fear of subpoena which prompts some physicians either to write incomplete records or to compose the record in ways that are self-consciously designed to be ambig-uous or imprecise. The primary intention of this artifice is to pro-tect the physician from unwilling testimony and the patient from coerced exposure of medical rec-ords. But by this behavior, and despite all the arguments in de-fense of it, the physician places himself above the law. It is only another way-not principally un-like withholding medical informa-tion from a patient - in which professional is at its best incestu-ous and at its worst solipsistic. The promise of professional secrecy is that it will protect con-fidences and guard privacies from frivolous and capricious inquiries. In the measure to which this is accomplished, free and trustful relationships can establish the context for professional service. The peril of professional secrecy is not that we will tell less than we know, because all of us know more than we can tell, but the temptation to tell less than we can tell. Linacre Quarterly 

Professional Secrecy: A Vincible Right

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Professional Secrecy: A Vincible Right

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