As we know the doctor's duty to the society may take precedence over his duty to individuals. That is why they can justifiably report the typhoid carrier status of a food handler to his/her immediate supervisor and report notifiable diseases to the Medical Officer of Health. If we go back to the philosophical basis of such conduct it would seem that they originate from the 'utilitarian' concept of greatest happiness to the greatest number of people. The deonotological or 'duty base' theories, which says that the action and not the result is important in deciding what is morally correct, do no have a place in this.
Important case in this respect is W v Egdell (1989) EWCA Civ 13. Dr Egdell was a consultant psychiatrist. W was a patient detained in a special mental hospital. W's lawyers sought a medical report from Dr. Egdell to submit to mental health review tribunal with a view of getting Mr. W a less secure mental hospital. After the examination, Dr. Egdell was in the view that the patient represented a much greater risk to the public than recognised by his doctors. He included his concerns in his medical report. To prevent the report being disclosed to the others Mr. W's lawyers withdrew his application submitted to the tribunal. Having realised what happened to his report, Dr. Egdell made his report available to the hospital authority without the patient's consent. Mr. W's lawyers unsuccessfully attempted to restrain the distribution of the report. The judge decided that the public interest in disclosure overrode the patient's right to confidentiality.
"Rarely, disclosure may be justified on the ground that it is in the public interest which, in certain circumstances such as, for example, investigation by the police of a grave or very serious crime, might override the doctor's duty to maintain his patient's confidence" (W.v. Egdell, 1990).
This shows us that breach of confidentially on the ground of public interest, though rarely, is justified. We can understand the rationale behind this and accepting this notion does not raise any eyebrows.
Forget about the society at large. What about individual members of the society? Do the doctors have a moral responsibility towards a third party?
Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976 ) is a very important case in this regard.
Tatiana Tarasoff and Prosenjit Poddar were students of the university of California at Berkeley in 1969. A kiss on the new years day made Prosenjit to believed that they were in a serious relationship. When Tatiana told him that she is involved with another man he became depressed and neglected his studies. One time he disclosed to a friend that he wanted to blow her room up. However, he started therapy from a psychologist Dr. Lawrance Moore. On the 9th session in August 1969 Prosenjit confided to the doctor that he was planning to kill Tatiana. In fact the doctor informed the University police that Prosenjit was dangerous and that he should be hospitalises involuntarily. Police got hold of Prosenjit but released after questioning. The psychiatric director instructed his staff not to pursue the matter further. In October, he went to Tatiana's house and stabbed her to death with a kitchen knife.
The California Supreme Court heard the case twice, in 1974 and 1976. The court found the therapist liable because of the "special relation that arises between a patient and his doctor or psychotherapist." The court recognised their ruling would lead to unnecessary warnings, but concluded that "once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger."
After this extraordinary ruling many other states started to apply this 'doctrine' in their cases. The doctors are expected to have 'duty to warn' potential victims. However some of the other states rejected the 'doctrine'. Even in California this has been restricted to those who were identifiable. No longer 'non-specific threats of harm directed to non-specific victims entertain duty to protect.
I do not know how far this decision is valid for our part of the world. Anyway, this shows us how far the court in some countries would go to procted the public ignoring the doctors' much hallowed principle of confidentiality.
Dr. Priyanjith Perera
05 December 2012.
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