Magazine article Humane Health Care International

What Does the Law Say about Doctors' Duties of Silence?

Magazine article Humane Health Care International

What Does the Law Say about Doctors' Duties of Silence?

Article excerpt

Michael Simpson's paper, which describes a South African appeal court's finding of liability against a doctor who disclosed a patient's HIV positivity to other health professionals who probably would not have a future association with the patient (see page 16), provides material for wider reflection and analysis. The court concluded that communication of the patient's status was "unreasonable and therefore unjustified and wrongful," indicating that disclosure of a patient's HIV status may be justified and legally permissible when it is reasonable. The governing principle appears to be that reasonable disclosure is lawful, and unreasonable disclosure is unlawful.

What, then, does the law consider reasonable? In the case described, apparently the patient whose HIV positivity was disclosed was known to be homosexual. The defendant doctor illustrated the prevailing incidence of HIV infection in that community by referring anonymously to the patient, but confirmed a colleague's suspicion when the latter identified him by name. Suppose that the patient was HIV-negative? If health professionals in the community had asked the doctor about the homosexual patient's HIV status and he replied that it was negative, would the doctor have been legally liable? The breach of confidentiality, consisting in unauthorized disclosure of information learned in the course of the professional relationship, would have been the same as that which the appeal court condemned. However, if the patient had sued, a court might have considered the unauthorized disclosure reasonable because it was in the patient's interest. Then the doctor's refusal to answer on grounds of confidentiality, even if not legally actionable, might have been considered unreasonable.

A refusal to disclose, on questioning, that a patient, known to be homosexual, is HIV-negative, might be defamatory. A direct, false assertion can be defamatory, but also a person can be defamed by innuendo, that is, by inference or implication of words true in themselves. If, for example, both A and B are HIV-negative, it might be defamatory of B to say "I know A and B. A is HIV-negative." This truth communicates by innuendo the defamatory falsehood that B is not. The doctor's refusal to state that the patient, suspected to be at risk of AIDS, is HIV-negative may create an understanding that he is not, and be the basis of a successful defamation claim.

Defamation consists in the disclosure of false information about a person that exposes him or her to hatred, ridicule, or contempt, or that causes him or her to be shunned and avoided by responsible members of the community. Disclosure of true information that has that effect is not defamatory. The physician in Dr. Simpson's case could not be liable for defamation. Outside the United States, jurisdictions in the Common Law tradition, including Canadian Common Law provinces, tend not to have a right to privacy that protects medical confidences. If an unreasonable disclosure of a medical truth occurs, courts often will try to contrive a remedy for the patient by developing aspects of existing legal duties to cover the gap left by the absence of a patient's legal right to privacy.

Where a doctor is paid on a fee-for-service basis, a legal contract exists between doctor and patient. This is so even when, as is usual in Canada, payment is made on an insured patient's behalf by a provincial health-insurance agency, and a collective arrangement fixes the doctor's fee schedule. An implied term of this contract is that the doctor will not disclose the patient's confidential information; accordingly, disclosure is actionable as breach of contract. The South African court converted an ethical duty into a legal duty in observing that "A patient has the right to expect due compliance by the practitioner with his professional ethical standards." A breach occurs whether or not disclosure is reasonable, but usually courts will be involved only when the patient finds disclosure offensive. …

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