|Year : 1999 | Volume
| Issue : 10 | Page : 429--433
Confidential communications in medical care
S Gupta, DN Bhardwaj, TD Dogra
Department of Forensic Medicine, AIIMS, New Delhi-110029, India
Department of Forensic Medicine, AIIMS, New Delhi-110029
|How to cite this article:|
Gupta S, Bhardwaj D N, Dogra T D. Confidential communications in medical care.Indian J Med Sci 1999;53:429-433
|How to cite this URL:|
Gupta S, Bhardwaj D N, Dogra T D. Confidential communications in medical care. Indian J Med Sci [serial online] 1999 [cited 2013 May 24 ];53:429-433
Available from: http://www.indianjmedsci.org/text.asp?1999/53/10/429/12233
There are many situations in which the law specifically requires a physician to disclose information about his patient. His failure to do so would subject him to criminal prosecution and in addition could deprive of his licence to practice medicine. In the absence of such laws, the physician may have difficulty in deciding when a disclosure is necessary to protect the welfare of the patient or society. He may also be concerned about the personal consequence if a court or licensing agency subsequently decides that the release of information was improper.
The belief has existed since ancient times that one of the highest duties of a physician is to keep secret that information, about his patient, obtained in the course of his professional employment. Hippocrates was probably the first to express this ethical duty. He vowed : Whatever, in connection with my professional practice, or not in connection with if, I may see or hear in the lives of men which ought not to be spoken abroad I will not divulge as reckoning that all should be kept secret. The substance of this vow has been incorporated into the American Medical Association's Principles of Medical Ethics which states "A physician may not reveal the confidence entrusted to him in the course of medical attendance, or the deficiencies he may observe in the character of patients, unless he is required to do so by law or unless it becomes necessary yin order to protect the welfare of the individual or of the community."
Legal Aspects of Disclosure
In some countries physician may lose his license to practice medicine or face an action for damages as the result of an unauthorised disclosure of confidential information, and in at least one country such disclosure is a misdemeanor punishable by a fine, imprisonment, or both. Since-the Indian law. Indian Evidence Act 1857, is by no means settled in this area, is not possible to present the physician with a list of rules as to what he may or may not say and to whom he may say it. An examination of the statutes and case law, however, provides some general guidance concerning the disclosure of confidential communications.
The concept that information about a patient should not be released by a physician originated within the medical profession and for hundreds of years was not subject to any legal regulation.  In recent years, however, legislative bodies have exhibited an increasing interest in a patient's right to have his medical secrets protected. They have demonstrated this interest by passing statutes providing that willful betrayal of a professional secert constitutes unprofessional conduct for which a physician's license to practice may be suspended or revoked. At present more than two-fifths of the states have such laws. Only one case has been found in which such a statutory provision has been interpreted. In that case the California Board of Medical Examiners revoked a ;physician's license because lie had written a number of letters to a former office assistant describing operations performed on certain patients and imparting information concerning the conditions of some patients. The Board said that these letters constituted willfull betrayal of a medical secret. The California supreme court set aside the revocation order on the ground that The act was never designed or intended to seal the lips of a physician against any and all disclosures, irrespective of their harmless character.
One case, of course, cannot provide sufficient information on which to base a prediction on the interpretation which might be placed on the word "willfull" in a miliar statute by another court. Although the California court adopted a narrow construction of the word "willful," i.e., "an act done intentionally and with purpose to do injury,"  it may have been influenced by the fact that the disclosures did not humilitate, embarrass, or incriminate any patient. It is also difficult to evaluate how much the court was affected by the stipulation that the patients, if called as witnesses, would testify that they had no objection o the disclosures. Evidently, the patients concerned did not object to the disclosure of their confidential communications. If they had disapproved of the physician's conduct, however, he could have been subject to a civil suit for damages.
The statutes like IPC in our; country penalizing unauthorized disclosure of confidential information do not seem to be well known, because it is often said that "against disclosures outside the courtroom the legislatures have provided no protection. Insofar as specific statutory provisions are concerned the doctor may, with legal impunity, chat about the case at a cocktail party or describe it in detail in a medical journal.
The belief that the law offers the patient no protection against un-authorised disclosures has created confusion concerning a physician's civil liability for such disclosures. Although only a few cases have been found which directly deal with this issue, they indicate that a wrongful disclosure may give rise to a civil action for damages directly caused by the violation of confidence. Although the law in the area of confidential communications cannot be considered as settled in our land, the reported cases of abroad do indicate a Trend toward allowing the patient to bring an action for damages by a willful violation of confidence in the states that punish such conduct by revocation of a medical license.  As further evidence of this trend, it should be noted that ,t least one author has stated that it is probable that a physician would be liable for damages under these condition.
An interesting legal action in-physician-patient confidence is a recent Utah case. The patient brought a libel suit against his former physician. He alleged that the physician published in a letter false and derogatory information acquired in connection with treating him for a mental disorder. The letter was written in response to an inquiry from a physician who requested information for the purpose of passing it on to the parents of a young girl was then keeping company with the patient. The information supplied by the physician had been obtained seven years earlier and the physician had not seen the patient since that time?
The trial court instructed the jury to return a verdict for the defendant if the statements were true, or if the physician had reasonable grounds for believing that the statements were true. Truth is ordinarily a defense to a libel action. However, the Utah supreme court pointed out that, if this defense were applicable to the physician-patient relationship, a patient would be without protection from a disclosure of intimacies which might be both embarrassing and harmful to him. The court mentioned that the policy of the state in protecting such confidences was expressed in the statute prohibiting the physician from being examined in court about confidential information. It is interesting that no mention was made of the Utah law which provides that unauthorized disclosures by the physician subject him to possible revocation of his license to practice.  The court held that if a doctor violates a professional confidence and publishes derogatory material concerning his patient an action will lie for any injury suffered. The court considered the defendant's contention that a physician's responsibility to keep a confidence may be outweighed by a higher duty to supply information under certain circumstances and also recognized that this duty may extend to the protection of third persons. Furthermore, it did not disagree with the trial court's finding that protecting the happiness of the young girl involved in this case was a sufficient reason to justify the disclosure. However, the court stressed the fact that there are still limitations under which such information can be given. The limitations referred to by the court are as follows. 1. The information must be given in good faith and reasonable care must be exercised to ensure the truth of the information given. 2. The information must be reported fairly. 3. Only such information should be conveyed as is necessary to accomplish the purpose of protection. 4. The information should be given only to such persons as are necessary to accomplish the purpose of protection.
Since the legal consequences taking in consideration of Indian evidence Act 1857 of an unwarranted release of confidential information are uncertain and even the consequences may be serious, it is necessary that a physician be most cautious when divulging any information about a patient. Al though there are exceptions to the proposition that all confidential information acquired from a patient should be kept secret, the basic rule to remember is that confidential information should not be revealed without obtaining the patient's consent unless law of the land like provision in criminal procedure code of India requires the physician to report the information, to any person or insurance company. Whenever a physician believes it is necessary to reveal a professional secret to protect the welfare of a patient, a third person, or the community, he should exercise caution in the method of disclosure. The following suggestions have been made to guide physicians under these circumstances 1. Assure yourself that the person informed is sometime entitled to the information, such as the patient's parent or guardian. 2. Do not give information by telephone if you do not recognize the voice of the person making the request. 3. Avoid the use of telegrams or letters to communicate medical information of patient. 4. If you are in doubt about your right to release the information consult your legal council. 5. A person in police custody as an undertrial prisoner has the right not to permit the doctor who has examined him, to disclose the nature of his illness to any person. If a person is convicted, he has no right and the doctor can disclose the result to the authorities. 6. Never release the treatment history without written consent from patient or its legal heirs to any insurance company.
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