CONFIDENTIALITY

1. CONFIDENTIALITY

2. Definition • To hold in confidence a secret or private matter, privacy. • Not to be divulged or communicated to others.

3. Development of, and Basis for, Confidentiality • Grounded in the moral rules of: • do not deprive of freedom or opportunity, and • do not break your promises. • Integral to the principle of respect for autonomy. • Individuals ordinarily have the right to determine to what extent their thoughts, feelings, and sentiment shall be communicated to others.

4. It is legitimate to share personal secrets with others and expect them to maintain the secret. • Without such respecting the privacy of others, human life as we know it would not be possible. • Fundamental to the marital privilege upheld in American law is that one spouse cannot be forced to testify against the other.

5. A promise of confidentiality and silence creates an obligation beyond just respect for another, it creates a special bond. • Professional confidentiality imposes additional responsibility. Professionals grant clients / patients secrecy even when they might otherwise have a reason to speak out.

6. Professional Confidentiality • Patients believe that what they tell a health professional is confidential. • Patients take for granted that health professionals owe them secrecy even in the absence of an explicit verbal request; such is a component of the implied professional covenant / contract.

7. Benefits • Confidentiality in the professional / patient relationship protects the autonomy of the patient. • Confidentiality encourages full disclosure by patients of information that may be sensitive but essential to treatment. • Confidentiality allows patients to seek help they might not otherwise seek if they thought their disclosures would be shared with others.

8. Examples • An attorney concealing past crimes of a client. • A psychotherapist concealing patient’s thoughts about hurting someone.

9. Codification of Confidentiality Expectation • Professional confidentiality expectations have been formalized in professional codes. • ADA Principles of Ethics and Code of Professional Conduct: “Dentists are obliged to safeguard the confidentiality of patient records.”

10. Advisory Opinion Interpretations of the Code Adopted by the ADA Council of Ethics, Bylaws, and Judicial Affairs

11. Ethics Becoming Law Laws and Administrative Regulations Relating to the Practice of Dentistry, Dental Hygiene, and Dental Specialities Commonwealth of Kentucky 1997

12. 313.140 Unprofessional Conduct Unprofessional conduct includes, but in not limited to: “…willfully betraying any professional secrets.” Unprofessional conduct is grounds for revocation or suspension of license.

13. Is Confidentiality A Moral Absolute?

14. In the Affirmative... • Confidentiality is absolute and should never be violated. Otherwise, critical information may not be revealed or patients may not seek help. • The law that retains confidentiality for HIV infected individuals is based on this argument.

15. For the Negative... • Confidentiality is not absolute. Infringements on personal privacy are morally justified when others or society may be harmed by maintaining the confidence.

16. Most general theories and professional conduct codes hold that the rule of confidentiality is not absolute. • Recall that the “moral rules” are universal, not absolute. That is, deviations from such rules must be justified in such a manner that reasonable people could agree that the deviation from a given rule should be permitted.

17. Respecting an individual’s autonomy should not trump potential suffering of significant harm by others; the tension between the principle of non-maleficience and confidentiality. • But, compelling rights of others must be at stake, that is, a significant risk of harm to others who are outside the clinical relationship • In some instances, society has delineated such compelling rights in laws that require the breaching of the rule of confidentiality.

18. Examples of Required Breaches of Confidentiality • Sexually transmitted disease • Child abuse • Gunshot wounds • Threat of imminent harm to another by a psychiatric patient under the care of a psychotherapist. Supported by AMA Principles of Ethics which states: “a physician shall safeguard patient confidences within the constraints of law.”

19. Tarnoff vs Regentsof the University ofCalifornia California Supreme Court 1 July, 1976 Plaintiff - Parents of woman killed by male patient under the care of psychotherapist. Defendant - Psychotherapist, University Hospital, University and Board of Regents

20. Situation • Patient divulged during therapy that he was going to kill the woman. Therapist informed the campus police that patient may harm an individual. Police apprehended the patient but determined that he would not harm anyone and released him. • Psychotherapist continued to treat patient but did not inform the victim in danger under the principle of confidentiality.

21. Ruling • A majority of the Supreme Court held that “the protective privilege of confidentiality ends where the public peril begins.” • Found in favor of plaintiff’s complaint for breach of duty to exercise care to protect the woman. • Dissenting view emphasized that breaching confidentiality may prevent patients from seeking care, if they cannot fully confide in health professional

22. Issues in Dentistry • Problems typically not as severe or dramatic as in some other arenas of health care. • Usually inadvertent breaches due to open operatories. • Staff and other patients may hear dentist - patient discussions; staff may have access to records. • Uncontrolled access to computer data. • Issues in College of Dentistry: conducting case histories, or case presentations in reception area, hallways, or in operatories loud enough for others to hear.