Confidentiality in the Psychiatrist-Patient Relationship Is it subservient to a Greater Good?

Prof G.E. BerriosFlorence 4th April 2017

geb11@cam.ac.uk

University of Cambridge

THIS LECTURE (30 minutes)

The Relationship unpacked-historical, contextual, structural accounts -instability & rhetorical force

The Relationship qualified-conceptual dependences-beyond Consequentialism

Conclusions

THE RELATIONSHIP UNPACKED

ACCOUNTSIs the Psychiatrist-patient relationship (PPR) just a replication of the doctor-patient relationship (DPR)?Yes, PPR = DPRNo, it is structurally more complex and essential to therapy, PPR > DPR Answer depends on how ‘mental disease’ is defined. If it is:

-like any other disease of the body then PPR=DPR.

-a special form of ‘being in the world’ whose understanding & resolution requires something more that knowing about its brain mechanisms, then PPR>DPR.

Each psychiatrist must choose.

DOCTOR-PATIENT RELATIONSHIP (DPR)

Conceptualized as φιλία (friendship) in Classical Times

Not considered as a symmetrical exchange.

Historically, the meaning of both DPR and φιλία have changed following:

-shifts in the definition of concepts such as nature, man and subjectivity.-the appearance of a new concept of ‘privacy’ (17thC).-contractual obligations related to the professionalization of medicine

(19thC).

There is no reason to assume that DPR has now reached its final stage of evolution. Changes in socioeconomic structures & advances in computer technology are likely to modify it further.

UNDERSTANDING DPR

Desirability for DPR secrecy is already present in the Hippocratic oath.

“Whatever I see or hear in the lives of my patients, whether in connection with my professional practice or not, which ought not to be spoken of outside, I will keep secret, as considering all such things to be private.”

“Which ought not to be spoken of outside” is an escape clause. It suggests a dimensional view of informational secrecy (i.e. information could be shared in certain situations).

Canon 21 of the Fourth Council of the Lateran (1215)

The concept of confessional sigillum: -introduced a ‘categorical’ model of secrecy (i.e. disclosure

was not allowed under any circumstances).-sacralized secrecy (it was to be considered as a covenant with

God and its defence led to martyrdom).

The ‘confidentiality’ of DPR has been caught since between the dimensional and categorical models.

Rhetorics, Epistemology & Ethics

Rhetorics refers to the suasive force of concepts.

Sigillum is meant to reassure of the trustworthiness of medical doctors.

Sigillum has also an epistemological function (increases the possibility of informational disclosure)

Diverse ethical theories have been used to justify PPR:-Sigillum, whether medical or confessional, has been dealt with in Kantian terms

or virtue ethics. -Exceptions to sigillum are justified in terms of consequentialism. -this conceptual incongruity may not be apparent to the clinician but is of

importance to the ethical philosopher.

THE RELATIONSHIP QUALIFIED

SOME OF THE CONCEPTS UNDERLYING DPR & PPR-PRIVACY:“The state or condition of being alone, undisturbed, or free from public attention, as a matter of choice or right; freedom from interference or intrusion. Also attrib., designating that which affords a privacy of this kind.” (OED)

-CONFIDENTIALITY:“The confiding of private or secret matters to another; the relation of intimacy or trust between persons so confiding; confidential intimacy.” (OED)

-PRIVILEGED COMMUNICATION:“in Law, a communication which a witness cannot be legally compelled to divulge” (OED)

-PERSON:‘A thinking, intelligent being, that has reason and reflection, and can consider itself as itself, the same thinking thing, in different times and places’ (Locke, 1689)

-SEAL OF THE CONFESSIONAL: (SIGILLUM CONFESSIONIS)

CONCEPTUAL INSTABILITY

Changes in the Western notions of ‘person’, ‘privacy’, ‘self’ & ‘individual’ explain the structural instability of PPR.

During the Reformation, these concepts were conceived of as ringfencing the secret inner space within which man met God without intermediaries.

The individual became the only owner & gatekeeper of any information that was generated within his/her sanctum sanctorum.

THREE HUMAN SPHERESDuring the 19thC, a ‘right to privacy’ was constructed to warrant further (morally, legally and politically) the ownership of personal information.

From then on, human beings inhabit three spheres (public, private and personal).

The permeability of the boundaries between these three spheres is constantly changing.

The instability & erosion of PPR is a direct result of these changes.

CONFIDENTIALITY IS VULNERABLE TO SOCIO-POLITICAL CHANGE

The use of a consequentialist ethics to justify breaching PPR confidentiality makes it vulnerable to erosion for definitions of the ‘greater good’ change throughout time.

For example, the current social panic engendered by ‘terrorism’ has led to defining the ‘greater good’ as national security. The State then proceeds to establish new criteria for breaching confidentiality.

JUSTIFICATIONS OF DISCLOSURE (removal of silligum)

With the patient consent

Without the patient consent-Statutory-Public interest-Required by law

CONCLUSIONS (1)

The Psychiatrist-Patient Relationship (PPR) is a complex and late derivative of the Doctor-Patient Relationship (DPR).

Confidentiality (sigillum), person, privacy, secrecy, etc. constitute a family of concepts embedded in an ever-changing legal, ethical and political context.

In the West, human beings are said to live in three different spheres (public, private and personal). The boundaries between them are changing all the time. The private and personal spheres are being curtailed and transgressed in the name of a ‘greater good’.

The current debate has become paradoxical in that both eroding and preserving confidentiality are said to lead to the ‘greater good’.

PPR is not immune to the current erosion of the private and personal spheres.

CONCLUSIONS (2)

The ‘Greater good’ is a consequentialist concept. It has changed throughout history and is still changing today.

In earlier times ‘greater good’ was mostly controlled by ethics and religion.

In the present day, together with ‘confidentiality’ and ‘privacy’ ‘greater good’ has become engulfed into the portmanteau notion of ‘national security’.

This means that criteria generated by ‘political emergencies’ (as defined by the State) and not ethics and legality are being allowed to control privacy and confidentiality.

It is hard for Medical doctors to influence this state of affairs.