DIFFICULT MORAL QUESTIONS
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Question 70: Must a company physician maintain the confidentiality of employee-patients?
I am a salaried employee of a small corporation, working at its headquarters. My services as primary care physician are available to the company’s employees and their families without charge. The company also provides a health and hospital insurance plan to complement my service.
While I refer patients to specialists when necessary, I need not refer as often as many doctors do, because, after good medical training, I practiced for ten years as the sole physician in a poor southern county. Also, having had extensive training in psychiatry, though unable to complete my residency, I can deal with many of my patients’ psychological problems.
My situation raises two special questions about confidentiality. First, the company wants to require all its employees who are my patients to sign a general release, allowing the personnel department access to information bearing on job performance and sick leave. Should I cooperate? The question is especially troubling because few employees feel it practical to go elsewhere—and pay—for primary medical care. Second, management thinks I should be prepared to make an exception to confidentiality, even beyond any release, when the company’s well-being is at stake, much as physicians generally are prepared to do when it is a question of the common good of society as such. Should I accept this view?
Analysis:
This question concerns the application of the norm requiring that secrets be kept. In general, adequate communication by patients to physicians demands trust that confidentiality will be maintained. But since patients may reveal their secrets, physicians should release confidential information at their request. Since the proposal of the questioner’s employer would tend to undermine patient trust that secrets will be kept, the questioner should resist its implementation. But if it is implemented, the questioner must either resign in protest or respect the access employees authorize. Apart from releasing information with a patient’s authorization and making exceptions in accord with the norms of official medical ethics, the questioner almost always should maintain confidentiality. Still, in my judgment, fairness to the company’s interests might in rare cases require the questioner to make an exception.
The reply could be along the following lines:
The AMA’s basic norm on confidentiality is: “The information disclosed to a physician during the course of the relationship between physician and patient is confidential to the greatest possible degree. . . . The physician should not reveal confidential communications or information without the express consent of the patient, unless required to do so by law.” Still, the norm allows for “certain exceptions, which are ethically and legally justified because of overriding social considerations.”246 Two classes of exceptions are mentioned explicitly: the legally required reporting of communicable diseases and of gunshot and knife wounds, and the divulging of information necessary to protect the intended victim of a patient’s credible threat to do serious bodily harm.
The reasons for confidentiality also are clearly stated: “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.”247
Another provision deals specifically with the problem of confidentiality as it affects physicians in industry. If a physician’s service is limited to doing preemployment physical examinations or examinations to determine whether an employee who has been sick or injured is able to return to work, a physician-patient relationship does not exist, and the physician may provide the employer with relevant information. However: “A physician-patient relationship does exist when a physician renders treatment to an employee, even though the physician is paid by the employer.” Thus, except as required by workers’ compensation laws, the physician may not “discuss the employee’s health condition with the employer without the employee’s consent or, in the event of the employee’s incapacity, the family’s consent.”248
These provisions seem reasonable. Though the norm admits of some exceptions, others’ secrets generally ought to be kept (see LCL, 415–18), and the fact that an effective physician-patient relationship depends on the patient’s trust that the physician will keep secrets provides an additional, specific reason why physicians should keep them. Moreover, confidentiality is especially necessary for patients inasmuch as health problems and suffering tend to increase people’s vulnerability and tendency to reveal secrets, including some the physician need not hear. Still, some important social interests embodied in laws and the interests of potential victims justify certain limits even to professional confidentiality. Also, since anyone may divulge his or her own secrets, physicians do not violate the trust placed in them when they act upon a patient’s authorization to supply information to others. Finally, even if an employer offers employees medical services without charge by directly paying a physician to supply them, this arrangement does not change the grounds for a physician’s duty of confidentiality or alter its reasonable limits.
Given this framework, how should you respond to the company’s proposals with respect to medical information about your patients, who are among its employees and their families? The two proposals must be considered separately.
The first is “to require all its employees who are [your] patients to sign a general release, allowing the personnel department access to information bearing on job performance and sick leave.” Should you cooperate? The question is not clear, because your cooperation might be at either of two stages: (1) in drafting the release form, encouraging your patients to sign it, and helping to develop a system by which the personnel department will access employee medical records; (2) in supplying management with information from the medical records of an employee who has signed a release in accord with that employee’s authorization.
It seems to me you should not cooperate with management at the first stage. A general release giving the employer access to employee medical records will damage the good purpose of confidentiality, namely, patients’ readiness to confide in you as their physician, and that effect will be the more deleterious insofar as your services include the delicate matter of your patients’ psychological problems. Moreover, management’s plan to require current employees—as distinct from new ones at the time of their employment—either to sign the general release or seek primary medical care elsewhere at their own expense would unfairly penalize those who do not surrender the confidentiality to which they are entitled.
Rather than cooperate in implementing this injustice, you should work against it. Tell management that compromising confidentiality will hamper your service to all of your patients and that its proposal is unfair. If your advice is not accepted, oppose the plan even at some risk to yourself. Encourage other employees to seek legal advice about thwarting it and, even if that is not feasible, to agree only to the release of specific information, which you would then provide on the same basis as do other physicians, not employed by the company, who care for employees under the complementary insurance plan.
If management persists and succeeds in putting the plan into effect despite opposition from you and others, consider resigning in protest. That would be warranted by the company’s manifest violation of the physician-patient relationship, contrary not only to its employees’ rights but to the autonomy due you as a professional committed to serving your patients. Your resignation might compel management to reconsider. However, that course of action may be excluded by your need for your position and/or loyalty to your patients. If so, at the second stage, you will be obliged to provide access to information about patients who have authorized it. In doing that, you will be cooperating with the company’s wrongdoing. But you will be cooperating with the company only indirectly by cooperating with patients, whose directives you must honor. Moreover, by making clear to everyone concerned your reasons for cooperating, you can greatly mitigate the bad effects of doing so.
Your second question is whether you should make an exception to confidentiality, even beyond any release, when the company’s well-being is at stake, much as physicians generally are prepared to do in view of overriding social considerations. Again, the question is not clear. It perhaps means: Should you provide management with information as required by workers’ compensation or other laws, or warn the public authorities and management if an employee credibly threatens to do serious violence to a co-worker? Then the answer is yes, but, as has been explained, medical ethics already provides for such exceptions. But more likely the question means: Should you agree to make exceptions to confidentiality and reveal employees’ secrets to management whenever you think that will help safeguard important company interests? To this, the general answer is no, since such a policy, like a general release, will violate your patients’ rights and militate against the good purpose of confidentiality.
Nevertheless, it seems to me that you (and any other physician) could be compelled at times to choose between breaching confidentiality and permitting a patient to inflict harm on others as grave as, or even graver than, serious bodily harm to individuals, and that in such a case fairness can demand an exception to confidentiality (see CCC, 2491). Some harms to a business would very gravely harm persons, including some or all of the owners, managers, employees, customers, suppliers, and the dependents of any of these. So, I think, you might rightly make an exception to confidentiality to prevent an employee from wrongly causing some harm to the company that would be likely to gravely harm persons. For example, if the treasurer’s wife, seeking a prescription for a tranquilizer, revealed that her husband was doing something that would bankrupt the company—for example, embezzling and gambling away millions of dollars of its funds—you might have an adequate reason to breach confidentiality. Even so, you first should try to persuade the patient to deal appropriately with the problem, so that you will have no need to reveal confidential information. Moreover, I do not think such an exception should be made without solid grounds for thinking that great harm probably will thereby be averted.