It’s all Greek to “The Ethicist”!
The third New York Times writer to take over the mantle of “The Ethicist” column, Chuck Klosterman, may be the most reliable yet, but he ended up wandering into the ethical weeds in his recent advice to an ethically-perplexed doctor, and engaging in advice column malpractice.
A physician asked him what was his ethical course when a patient divulged to him that his persistent headaches may have arisen from the stress of keeping a secret: he was responsible for a crime that had been pinned on an innocent man. Before the consultation, the doctor had promised his patient that “whatever he told me would not leave the room.” Now the physician was having second doubts, and wondered if he was right to keep the confidence to his patient at the expense of an innocent man’s freedom and reputation.
Klosterman’s answer:
“I would advise the following: Call the patient back into your office. Urge him to confess what happened to the authorities and tell him you will assist him in any way possible (helping him find a lawyer before going to the police, etc.). If he balks, you will have to go a step further; you will have to tell him that you were wrong to promise him confidentiality and that your desire for social justice is greater than your personal integrity as a professional confidant.”
First of all, I don’t understand why a doctor is asking this question to a newspaper ethicist unless he doesn’t like what professional and medical ethicists are telling him. Klosterman, in reaching his reasonable-sounding but flat-out wrong reply, simply discards the concept of professionalism, beginning with the Hippocratic Oath….
“I feel that the first thing we need to recognize is that the Hippocratic oath represents the ideals of a person who died in the historical vicinity of 370 B.C. Now, this doesn’t make it valueless or inherently flawed. It’s a good oath. But we’re dealing with a modern problem, so I would separate the conditions of that concept from this discussion.”
There is a lot to hate about that paragraph. The Hippocratic Oath is the foundation of medical ethics and the professional status of physicians. To just airily dismiss its relevance because ‘it’s sooo old’ is a rationalization of convenience. How old wisdom is doesn’t impugn its reliability at all: does the idea make sense, or doesn’t it? What does Klosterman mean, “this is a modern problem”? There were no crimes in 370 B.C.? Nobody was ever accused unjustly? Nobody ever had a guilty conscience? There are certainly modern dilemmas that ancient wisdom is stretched to solve, but this isn’t one of them.
The relevant provision of the classic Oath is this:
Whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret.
It means that the doctor’s professional duty is to serve his patient and nobody else, that the profession of medicine is dedicated to curing physical ills, and a patient must be able to have complete trust that he or she can divulge anything and everything to a doctor is pursuit of health without fear that it will be disclosed to others. “I would separate the conditions of that concept from this discussion” means, in essence, “pretend you’re not a doctor.” Well, yes, Chuck, that would make the problem easier. But he is a doctor, and doctors, as professionals, cannot just argue away the ethical requirements of their profession because a non-doctor thinks the principles are “old.”
Now, most non-doctors don’t seem to know this, but the Hippocratic Oath, while underlying the various codes of medical ethics, isn’t itself binding on doctors except as a philosophical construct. Doctors don’t take a uniform Hippocratic Oath, and even the classic “First, do no harm” edict is not a black- letter requirement of medical ethics, though its meaning is. Klosterman gets the meaning wrong anyway, asserting that “First, do no harm” applies also to the innocent stranger. It doesn’t. The famous guiding principle of medicine refers only to the patient, whose well-being trumps all other considerations.
So having announced that the Hippocratic principles are out of date and having misconstrued “Do no harm,” Klosterman goes on to deal with what really bothers him, the doctor’s promise that he would keep his patient’s secrets. “The Ethicist III” seems not to understand that the promise was unnecessary as far as the doctor’s conduct was concerned, because promise or not, he was ethically obligated to keep what was said to him by his patient confidential. Here is what the American Medical Association demands in its ethics code, based on those old principles Chuck wants to chuck:
“The information disclosed to a physician by a patient should be held in confidence. The patient should feel free to make a full disclosure of information to the physician in order that the physician may most effectively provide needed services. The patient should be able to make this disclosure with the knowledge that the physician will respect the confidential nature of the communication. The physician should not reveal confidential information without the express consent of the patient, subject to certain exceptions which are ethically justified because of overriding considerations.
“When a patient threatens to inflict serious physical harm to another person or to him or herself and there is a reasonable probability that the patient may carry out the threat, the physician should take reasonable precautions for the protection of the intended victim, which may include notification of law enforcement authorities. When the disclosure of confidential information is required by law or court order, physicians generally should notify the patient. Physicians should disclose the minimal information required by law, advocate for the protection of confidential information and, if appropriate, seek a change in the law.”
All the doctor did in making the promise to his patient was inform the patient what was true anyway: the doctor was bound by, and the patient protected by, medical confidentiality. The situation would be different if the questioner hadn’t been a doctor, which is how “The Ethicist” treats it (His comment is in italics, my annotations are in bold):
“You should not tell someone “Whatever you tell me will never leave this room” if that promise only applies to anecdotes you deem as tolerable….” [Which is to say, you should never say that ever, to anyone, because there will always be statements that you have no choice but to disclose. If a co-worker comes up to you and says, “I have to tell you something—can I trust you to keep it between us?”, you should always say no, but if you say yes, be prepared to break the promise when he tells you that he is embezzling from the company’s funds, stuffing dead bodies in his crawl-space, or running a terrorist cell. ]
“…It doesn’t matter if you’re a physician or anyone else…” [ ARRRGH! Yes, Chuck, it matters every much, because a physician’s duty of confidentiality is not limited by what he or she, or you, would find personally intolerable. That’s why this is professional ethics you are messing with, not everyday, Sunday morning ethics. The ethics of the profession tell the doctor what he has to tolerate….it’s not up to him.]
“…The deeper question, of course, is whether breaking this commitment is ethically worse than allowing someone to go to jail for no valid reason. On balance, I have to say it is not…. ” [If you are not a doctor, absolutely. If you are a doctor, the stakes are different. You are undermining centuries of patient-doctor trust. Don’t you get it, Chuck? This is a tradition that protects all patients, not just a single instance to give you a newspaper column. If the rule becomes “a doctor can ethically reveal whatever confidence he or Chuck Klosterman think will assist the greater good,” then patients can’t trust their doctors any more, and doctors will have a harder time treating them.]
Klosterman’s stated justification that “your desire for social justice is greater than your personal integrity as a professional confidant” really would mean that the doctor has decided that ratting out his patient in violation of his professional duties is more important than being a doctor, that preventing one miscarriage of justice is worth undermining the trust between all patients and their doctors, and thus the future health of generations. If the doctor does that, it means that he doesn’t want to be a doctor any more, and he shouldn’t be. He is no longer trustworthy, and he, like “The Ethicist,” doesn’t believe in the ethics of the medical profession.
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Facts: New York Times (“The Ethicist”)
Graphic: PBS
Ethics Alarms 
I agree with what you say, but I wonder how often legislators think of the confidentiality aspect of the doctor-patient relationship it when they pass legislation mandating reporting of such things as child abuse.
Never? In some states, lawyers must report evidence of child abuse against their clients, but not evidence of murder.
Guess Klosterman is getting paid by the word… If it truly was a doctor presenting the problem then the direction should be straightforward within his professional bounds.
A man is having headaches to the point he sees the doctor and reveals a possible cause of his problem: a guilty conscience.
The doctor’s responsibility is to provide sound medical advice, not legal advice. Doctor should tell him that the amount of stress caused by his guilty conscience not only could cause headaches but a number of other more serious problems, possibly fatal… And drugs will only mask the underlying problem.
No need to threaten a patient with outing him….
The second paragraph of the quote of the ethics code, specifically this sentence, “When a patient threatens to inflict serious physical harm to another person or to him or herself and there is a reasonable probability that the patient may carry out the threat, the physician should take reasonable precautions for the protection of the intended victim, which may include notification of law enforcement authorities.”, gives room for another line of reasoning.
By not speaking out of what he has done in the past, this patient is actually inflicting serious physical and psychological harm to another person.
Therefore, the physician is within reason to notify law enforcement authorities.
Absolutely not. “Inflict serious physical harm” cannot be stretched to include false arrest and prosecution, nor is “inflict” the same as “allow to occur.” These are specific terms of art, law and ethics, and when one is talking about violating a core professional ethical duty, exceptions must be interpreted narrowly, not creatively. Sorry: this doesn’t fly, and there probably isn’t a professional ethics expert in the world who wouldn’t agree with me. If there is, he’s horribly wrong.
If the ethics code says that it’s perfectly okay to let an innocent be framed, then I think the ethics code needs revision. What if the framed person was facing the death penalty – would you say the ethical thing would be to let them die?
This is where anti-consequentialism leads – seeing rules as so important and inflexible that they can never be bent no matter what the costs. A point of view that refuses to consider consequences is as harmful and ultimately unethical as a point of view that refuses to consider means.
For a doctor in this situation, the ethical thing to do is to do what the Times ethicist said – go to the cops unless the patient agrees to go himself. The patient is then free to report the doctor to the State Medical Board, which will then be able to decide what sanctions, if any, are appropriate to levy against the doctor.
Even if this leads to the doctor losing his license (an unlikely but I suppose possible outcome), that would be ethically preferable to keeping silent and letting an innocent person languish in prison.
Elsewhere I’ve argued that an ethical professional should be willing to cash in his license for a greater good in the extreme situation…but that’s a prerequisite of the deal: as I said here: he can be an ethical person, just not an ethical doctor. Essentially what you are arguing is that professional ethics shouldn’t exist. The centuries-long theory that engendering complete trust between millions of doctors and their patients is worth more to society than chucking that trust for the rare outlier situation benefiting one non-patient is solid utilitarian trade-off. There are consequences of undercutting the jobs where we are supposed to be able to count on complete loyalty—doctors, lawyers, psychiatrists, the clergy. It’s short-sighted to just dismiss the whole concept of professionalism because of the rare unfortunate side effects.
Jack, I think you’re being too black and white. I’m not convinced that if a doctor decides that he can’t keep quiet about a situation as extreme as “my patient is a criminal who is letting an innocent suffer in prison for his crime,” any ordinary person will take that to mean that doctor-patient confidentiality has been thrown away forever, for all time. It is not true that if the doctor does the right thing and goes to the police, all professionalism is undone forever – especially if he then submits himself to the judgement of a professional board.
(For that matter, under current AMA ethics rules, if the patent credibly tells the doctor that he believes he’s going to physically harm Allyson Hannigan, the doctor will have an obligation to break doctor/patient confidentiality. Almost everyone is aware of that exception, yet we are all still able to believe that doctor/patient confidentiality continues to exist despite having an exception in that rare circumstance.).
I don’t think that resignation is necessary; merely allowing the state board to judge the case, and submitting to their decision, should be enough. (It’s like someone engaging in civil disobedience; they are ethically obligated to accept being arrested and brought before a judge, but they aren’t ethically obligated to demand that the judge give them the harshest available penalty.)
More black-and-white thinking, Jack. I’m not arguing that professional ethics shouldn’t exist at all, and it’s ridiculous that you think I said that. I am arguing that professional ethics, like all other ethics, should have some flexibility and some responsiveness to circumstances, rather than being nothing but an inflexible application of black-and-white rules.
I think professional ethics should exist, and in a case like this should be applied by the legitimate authorities (a state medical board, as I understand it). But just as the judge may decide to give an activist a slap on the wrist without forever throwing away the entire concept of law and order, I think a state medical board, in this situation, could choose to give this doctor a pass and a warning, without all of professionalism therefore being chucked out the window.
You once argued that it was okay to have a law forcing hospitals and doctors to report undocumented immigrant patients to immigration authorities, even though without any doubt that law would lead to people suffering needless deaths due to non-treatment. In that case I thought you wrong.
It’s interesting that we both feel differently about this instance. I don’t know why you feel differently. In my case, I think that in both cases, valuing a strict application of rules over the value of human life is wrong.
Doctors and psychiatrists already have an exception to their obligation to be confidential, and that has not caused the confidentiality rule – or patients’ belief that they can count on it – to dissolve. It therefore seems that you are objectively wrong to believe we must choose one or the other. I think as long as the exceptions remain both extreme and rare – and cases like “I am going to murder my neighbor” and “my neighbor is in prison for my crime” are both – we can actually have it both ways.
1. “I don’t think that resignation is necessary; merely allowing the state board to judge the case, and submitting to their decision, should be enough.” That’s what I meant. In reality, professional discipline boards are loathe to severely punish doctors and lawyers who break confidentiality in situations that the general public agrees with them, even when the public is wrong.
2. You misstate the Allyson hypo. The doctor is not obligated to break confidence–in fact, he’s obligated not to if he can address the threat without doing so. It’s a last resort.
3. And that’s why the consequences for breaking the rule have to be strictly enforced. The slippery slope operates here—the last resort easily becomes the first resort otherwise.
4. I agree with you that the rule isn’t absolute, because no rule is absolute, but it had better be a serious, serious case to trigger an exception. Not just any crime, not just any situation where divulging the confidence might prevent some harm.
5. The idea of a profession is absolute loyalty that goes beyond loyalty to self and society. Do you believe that a lawyer representing a mad dog killer should give him up for the good of society? Do that, and we no longer have a guaranteed fair trial.
6. I regard the duty of medical confidentiality in the same light.
7. I no longer remember what I argued in the immigration situation, but in the absence of a law, I would not support hospitals reporting illegals. That would be a breach. I would support a law requiring it, though.
In general, no. We can’t have our legal system without people who accept the obligation to protect the interests of accused criminals. And there are obvious benefits to society in having such a system (for instance, if the mad dog killer – a phrase which sounds to me like someone who is in charge of shooting rabid dogs, but I know that’s not how you meant it :-p – wants to negotiate a peaceful surrender, he needs a lawyer to do that).
But lawyers are not doctors; defense lawyers have an ethical obligation to protect the legal interests of criminals in a way that doctors do not, because the entire criminal trial system depends on defense lawyers accepting that obligation. In contrast, our medical system will not collapse if doctors feel that they can report a criminal in order to get an innocent person out of prison.
(Regarding lawyers and clients, are there any limits on that rule? Suppose that I was in a secret location, and broadcasting over the internet a live murder of an innocent person every half-hour, and I’d already killed four, and I had twenty more hostages available. You, my lawyer, know my location. There is no other way to save the lives of the 20 remaining hostages other than you telling the police where to find me. Would you really say that, in that situation, your greatest obligation is to not turn me in?)
I genuinely find that position both horrifying and bewildering. There is no question that if we had that law, it would lead to increased suffering and mortality.
What is the legal answer to this question? I understand the ethics involved, but I’m curious as to what would happen if the doctor somehow ended up as a witness. I wonder if the confidentiality only applies to medical information passed back and forth; i.e., on the stand, the doctor could not testify that his patient has headaches, but maybe there is no physician/patient confidentiality as to past crimes that may have been revealed (unless the doctor was a therapist of course)? Sounds like a potential Law & Order episode to me.
The law doesn’t recognize this as a privilege. The doctor would have to testify, and reveal the confidence.
Isn’t this a patchwork of state laws on doctor-patient privilege relating to the compulsion to testify?
I was shocked to learn a few years ago that it wasn’t covered in federal court (it came up in the context of the NYT reporter jailed a few years ago).
I know someone who dealt with a similar form of doctor-patient privilege where the doctor stayed quiet. His wife was cheating on him, caught an STD and went to her doctor to treat it. One of the times he ends up with it too.
He then digs into the insurance and finds out that this isn’t her first time to get treated. He confronts her doctor and the doctor tells him that he can’t reveal to him because of confidentiality – even though she was continuing to put him at risk.
Hi all,
I have two points to add; one that responds directly to Matthew B., and the other that addresses the original point more directly.
First, with regard to Matthew’s example of the cheating spouse who contracts an STD, I think it would probably be difficult to come up with a better example of “the system working as intended.” In the world where doctors respect confidentiality, at least one person gets treated. In the world where the doctor blabs to the world (or at least, to the spouse), there’s a good chance that nobody does. In fact, if the cheater foregoes treatment out of fear of exposure, s/he is putting the spouse at even GREATER risk than in the former scenario, since the STD goes untreated and has a larger window in which to infect the spouse. Certainly, the ideal world is the one where the cheater gets treated AND confesses to the spouse, but the onus for that lies with the cheater. It’s not the doctor’s place.
My second point can, I think, best be summed up with the question “Have you read the classic Agatha Christie novel The ABC Murders (and/or seen the outstanding David Suchet adaptation)?” (mild spoiler alert) In this story, the quiet, unassuming but mentally unstable Mr. Cust suffers regular blackouts due to a war injury, and genuinely comes to believe that he is a serial killer who commits crimes during his memory lapses (more spoiler: he is innocent). Obviously, fiction isn’t real life, but sometimes it is better at making the point. As a real life parallel, consider one of the most famous unsolved crimes of the 20th century (at least in North America), the Black Dahlia murder. Wikipedia says that over 60 people falsely confessed to the crime; to this day, there has been no conviction. The upshot is that self-made confessions to crime are not in fact particularly reliable, nor are they particularly uncommon; and I think this is even more true for individuals who are seeking help for their mental health (which seems to be the case here; the patient was suffering headaches for what may have been largely psychological/stress-related reasons). It seems to me that medical ethics as Jack espouses here them are both perfectly appropriate and necessary in order for these sorts of patients to get the care they need without the fear of a panicky doctor reporting them to the authorities on flimsy evidence.
I don’t think anyone contests that exceptions can’t be made in truly exceptional circumstances. If, for example, a patient comes to a doctor and says, “Jeff is on death row for murder right now, and I’m the culprit. And by the way, here’s half the victim’s body, which was never found because I’d been hiding it in my closet. You’ll find the DNA is a perfect match to the other half of the body that was left at the scene,” then probably the doctor is okay in reporting this and submitting himself to professional discipline, which will almost certainly let him off. But the vastly more common scenario of vague confessions and self-recriminations from a patient who may be suffering mentally? That’s nowhere close to the line, and medical ethics exist to remind doctors of this. The law may not be perfect, but it IS pretty rigorous; so if there’s any uncertainty at all, the doctor needs to be reminded this is not his call to make.
To be fair, we don’t have enough information from the doctor’s anonymous letter in this case to say for sure whether it is closer to the exceptional or the non-exceptional scenario, but my guess is that the prior probability combined with the mere fact that the doctor was sufficiently uncertain to ask a newspaper columnist in the first place strongly suggests the latter.
Comment of the day, Jeff…thanks. For once a COTD agrees with me.
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