Medical and legal professionals’ attitudes towards confidentiality and disclosure of clinical information in forensic settings: a survey using case vignettes

Confidentiality and the law

Legal dispositions and ethical guidelines about confidentiality differ from country to country and are subject to ongoing discussions. In most nations, physicians are prohibited from transmitting information about a professional encounter to juridical authorities or to the police, ⁴ with some legally defined exceptions. While the obligation to announce births, deaths and certain infectious diseases is widely accepted, countries vary as to whether, in other situations, breaching confidentiality is a legal duty or rather an option. ⁵

In Europe, the broad concept of confidentiality, based on international medical ethics, is the same and enshrined in the European Convention of Human Rights. However, among States that have ratified this Convention, differences remain concerning specific aspects of the legal dispositions related to confidentiality. In the UK, case law provides an established public interest defence to uphold obligation of confidentiality for doctors in the context of their professional relations. A stronger public interest in disclosure can over-ride this duty. According to the guidelines of the General Medical Council (GMC), physicians are entitled to disclose information without prior consent from patients if a ‘failure to disclose may expose others to a risk of death or serious harm’ and outweighs both the society's and the patient's interest in confidentiality. ⁶ Furthermore, these guidelines permit the disclosure of information if it is likely to ‘assist in the prevention, detection or prosecution of serious crime’. ⁷

In Switzerland, civil law regulations, enshrined in the Swiss criminal code, provide an interesting additional mechanism to physicians to deal with difficult situations. According to article 321.2 of the latter, breaking confidentiality is not an offence if the person disclosing the information does so on the basis of a written authorization issued in response to his application to a supervisory cantonal body, usually either a commission or a cantonal delegate. Before contacting this commission, and in particular in emergency situations, physicians themselves have to balance the interests of confidentiality with the risk of harm to third persons. Similar to UK regulations, Swiss regulations imply that, providing that certain conditions are fulfilled, third parties may be warned even if this goes against the patient's will. These conditions include that the therapist has tried, unsuccessfully, to convince his patient to agree to a disclosure, that harm to identifiable victims is imminent and that revealing confidential information could effectively prevent this harm occurring and that only the strict minimum of relevant information is transmitted.^8,9

Confidentiality in medical practice

Independently of details of the domestic legal context, medical professionals in different countries are faced with the same ethical and practical dilemmas when dealing with potentially dangerous patients. In most cases, the law does not give a definite answer but requires the balancing of interests in each specific situation. In everyday practice, there exist a plethora of situations where medical professionals have to balance confidentiality against the protection or interest of a third person.^10,11 Beyond the legal apprehensions that clinicians might experience, there exist deontological dilemmas and the difficulty of clarifying for oneself the importance and limits of confidentiality. Such considerations imply serious consequences for the atmosphere of therapist-patient trust, and thereby the entire basis of the therapist-patient relationship. ¹² In this complex decision, both apprehension of legal consequences and reservations about breaching confidentiality represent a source of uncertainty and pressure lying upon physicians’ shoulders.

Aims of the Study

Although confidentiality is one of the basic principles in medical practice, there is a lack of literature investigating its impact and legal implications on medical professionals’ attitudes in concrete situations. The first aim of our study was to fill this gap in the literature. We sought to achieve this by exploring how participants would handle scenarios dealing with confidentiality, and what the motives were behind their hypothetical actions. Our hypothesis was that basic principles such as autonomy of the patient and confidentiality had more influence on attitudes than evaluation of situation-related aspects. We considered that evaluation of a patient's dangerousness and, by consequence, the assessment of danger for a potential victim might influence the respondents’ decision whether to report a case or not. The target group for our study was medical professionals working with detained persons, as we considered they should be particularly experienced with and sensitized to difficulties surrounding confidentiality issues. Secondly, we were interested in comparing the answers of legal professionals to those of medical professionals, because both of them are implicated in the process of breaching confidentiality. We were particularly interested in identifying possible divergences in opinion between legal and medical professionals and analysing why these exist. Our hypothesis was that legal professionals would value the idea of justice and protection of the society higher than keeping confidentiality. Additionally, we expected that legal professionals would attribute more importance to the work of police towards upholding the law.

Principal findings per cases

Global evaluation about how to act in the first case did not show any consensus because answers strongly diverged. In case 2, a tendency to report the patient became apparent. In both of these scenarios about a patient confessing a crime to his psychiatrist, differences in the evaluation of confidentiality (M1) and autonomy (M2) best explained answers to acting questions: that is, respondents who attributed a higher importance to these aspects tended not to breach confidentiality. By contrast, evaluation of situation-related aspects did not correlate with differences in acting questions. Security and legal aspects also played rather minor or, at most, moderate roles. These observations confirm our hypothesis that basic principles such as confidentiality and autonomy impact behaviour, rather than situation-related evaluations. Overall, legal professionals gave preference to transmitting information and attributed more importance to legal/security aspects than medical professionals, placing less importance on the patient's autonomy. This suggests that the professional context, and the concepts it generates, might contribute to different ideas about how to act.

In cases 3 and 4, which both dealt with potential danger to a third party, medical and legal professionals agreed to breach confidentiality and report the patient. In the case about exhibitionism, ⁵ opinions about the importance of confidentiality were divided and the impact on answers was only modest. Although all of the situational considerations seemed important, none of them could properly explain differences in acting answers. In case 3 (a patient reporting fantasies about revenge), the patient's dangerousness was scored unanimously high by all participants. However, no homogenous attitudes regarding the protection of the threatened person (explored by the acting questions) emerged from this conviction. This discrepancy could be linked to the perception of dangerousness as a rather theoretical concept with little influence on acting. Indeed, despite epidemiological data on violence risk factors, the prediction of violence in a given clinical situation remains elusive and even the standardized risk assessment tools have moderate levels of predictive accuracy. ¹³ Additionally, legal professionals were much more concerned about the potential victim's security than medical professionals (cf. M5, M12, M16). For a psychiatrist, murder fantasies as such do not automatically imply action on these fantasies. Although the case we used was about a patient often having fantasies of revenge about the same person, our findings underline that psychiatrists tend to emphasize the difference between fantasies and ‘real’ actions, whereas legal professionals are in general less familiar with this kind of distinction.

In a previous study, we showed that, as a result of a lack of knowledge, physicians tend to breach confidentiality without justification if requests are made by ‘authorities’ such as the police or a forensic pathologist.^8,14 This finding was confirmed in the present study. In the situation where policemen directly contacted a physician in order to obtain information, ⁴ respondents tended to transmit the data, unaware of the fact that therapists do not have any obligation towards the police in this particular case.

Principal findings and discussion: Medical versus legal professionals

Compared with legal professionals, medical professionals more often responded to motives questions by indicating that confidentiality was important. This general high value given to confidentiality was also reflected in the responses to the acting questions, where medical professionals were significantly more in favour of not transmitting information than legal professionals. Case 3, in which a physician has to choose between protecting a potential victim and maintaining confidentiality, resembling the Tarasoff case, was not subject to major differences in attitudes between medical and legal professionals. Nevertheless, medical professionals agreed slightly more often that confidentiality should not be breached, while legal professionals would rather contact the police. The classic controversy concerning confidentiality can be described as balancing confidentiality with obligations to warn in order to avoid harm for third parties. However, it should be noted that confidentiality generates trust between the therapist and his patient and ultimately might be the better way to protect third parties. Indeed, a confidential patient-therapist relationship helps to provide better treatment to dangerous patients, which could avoid harm they could cause without adequate treatment. The question of which attitude avoids more harm is empirical and cannot easily be answered. However, overall studies have not shown any evidence that the outcome is better, i.e. that harm through violent behaviour is prevented, by warning victims in advance.^5,15,16 Medical professionals’ more conservative attitudes towards confidentiality could be explained by their better knowledge or intuitive beliefs concerning expected outcomes and consequentialist considerations. This suggests the application of confidentiality as an obligation prima facie, based on the idea described by Beauchamp and Childress that confidentiality is defined by ‘the consequences it produces’ as well as ‘moral principles it expresses’.^11,17,18 In the given context, one might wonder whether legal professionals’ attitudes might change if they had the same experience with psychiatric patients as therapists, or if they learned more about the existing evidence. Indeed, this evidences calls into question established Tarasoff-duties.

A conflict of interest exists in cases where a sentenced prisoner patient confesses a crime during sessions of mandatory therapy. Legal professionals clearly give preference to transmitting this information, which can be based on different justifications. The first is the idea that mandatory therapies suspend some aspects of medical confidentiality and create an obligation to collaborate with the justice system, and that patients are informed about confidentiality being less strict in mandatory treatment situations. Another explanation would be that medical professionals base their decision in the first place on the consequences of reporting or not reporting instead of seeing their role as one of ‘creating justice’: they consider foremost whether a past crime influences future dangerousness of patients. Although they might encourage patients to confess their crimes themselves, they would not report crimes against the wish of the patient if the additional information does not change the potential danger, because in these cases maintaining the patient–therapist relationship outweighs any considerations of ‘creating justice’. In contrast, legal professionals might value ‘justice’ in and of itself, independently of any evaluation of the consequences of breaking confidentiality. In their view, since crimes are against the law, all crimes should be reported even if this does not change evaluations of dangerousness and could endanger the patient-therapist relationship.

The hypothesis that legal professionals give more weight to helping the police than to confidentiality has not been confirmed. The answers of legal professionals and medical professionals did not differ significantly in the scenario where a physician is directly confronted with a demand of the police. Our findings, especially the high rate of uncertainty expressed by participants concerning this case, emphasize that both medical and legal professionals will profit from clarification concerning their obligations in such a situation.

Strengths

Despite the essential role of confidentiality for physicians’ daily practice, the literature has approached the subject by investigating physicians’ abstract reflections about confidentiality in general^19,20 rather than by exploring how they would act in concrete situations.^14,21 Our study fills this gap and helps to discern concrete implications of confidentiality in daily practice.

In a previous qualitative study we have shown that differences exist between the attitudes of medical and legal professionals (publication under submission). Our present study contributes in an important way to better understanding the reasons for these differences.

Weaknesses

Our study has several limitations. As we included only therapists working in the field of prison medicine or forensic practice in our study, results may not be extrapolated to ‘common’ health-care personnel. However, we deliberately chose this occupational group as we considered them to be experts in their field, handling delicate situations related to confidentiality more often than ‘common’ health-care workers.

By contacting psychiatrists, psychologists and physicians who are members of forensic societies, we reached a sizable number of persons working in this field. However, as the participant rate was estimated at lower than 50% overall, results may not be representative, but rather reflect attitudes of therapists particularly interested in ethical and legal questions and who were therefore motivated to participate in a study about it.

The same applies to participants from the legal profession. For the latter, we were confronted with the problem that there is no public access to a register of jurists in Switzerland. Instead, we had to obtain contact information via single contacts in law faculties or courts. This detour may have resulted in a bias in our participants.

In our opinion, these limitations do not harm the study as our primary intention was not to obtain generally applicable results but rather to identify tendencies and the range of variance of responses. More importantly, taking these limitations into account, our results remain significant if we consider that even this motivated and more interested group of professionals disagree or express their uncertainty. This underlines the need for more education and communication in this field.

The usual weaknesses of hypothetical research about opinions apply also to our study. Since participants indicate only what they would do, or think should be done, we do not know how they react in reality. Answers might be subject to a bias towards social desirability. However, since the questionnaire was anonymous and since we obtained relatively high rates of unsure answers, we have reason to believe that these possible biases remain small.

Implications for medical practice and jurisdictions

A previous qualitative study has shown that differences exist between the attitudes of medical and legal professionals (publication under submission). Our present study contributes in an important way to better understand the reasons for such differences. Indeed, a better understanding is needed to improve communication and to reduce disagreement or conflicts between both professional groups. This could enhance knowledge and competence and reduce differences between professional groups. ‘Mixed’ seminaries or ethical education providing a framework to discuss hypothetical case studies like those we used in our questionnaire could represent a useful future approach.

Our analysis shows that health-care professionals put confidentiality first whereas answers of legal professionals reflect their concern about public security and about collaborating with the police. For medical professionals, there seem to be doubts about how to behave when faced with a demand from the police, and the question of whether they should collaborate to a certain extent. This reveals the need to define this relation more clearly, not only theoretically, but also to make case-based teaching a more important subject in medical training.

We have shown that medical professionals might not be aware of some legal aspects regarding confidentiality despite their importance in everyday practice. While medical ethics are an integral part of the medical school curriculum, much less importance seems to be attributed to legal aspects. This could explain why clinicians refer first of all to ethical concepts concerning confidentiality in later professional life. Improving knowledge about the legal basis of physicians’ actions might diminish feelings of stress or incertitude when health professionals face situations such as those described in our questionnaire. Case-based teaching of some legal aspects regarding confidentiality should be more systematically integrated in medical studies and continued in advanced courses during professional life.

All of the above discussed measures would be helpful and enriching for everyday's medical practice, not only in the forensic context. Thus, official organizations representing medical professionals (such as the GMC) could take a central place in the establishment of these case-based educational efforts.

Although legal dispositions regarding confidentiality differ from country to country, several aspects with general validity might be extrapolated from our findings, notably concerning the balancing of confidentiality against the protection or interest of a third person.

Our results demonstrate that medical professionals value confidentiality higher than legal professionals do. Similar differences had been found in a previous study when comparing attitudes of law and medical students about confidentiality. ²² Other reports have shown that clinicians, even if aware of legal dispositions, consider medical ethics as an ultimate moral framework when taking decisions.^23,24 This demonstrates that clinicians, regardless of the domestic legal context, might sometimes give priority to the ethical necessity to maintain confidentiality as compared with the law.

The variety of answers among legal professionals in our study underlines not only variation of opinions, but also the fact that in many situations several ethically and legally correct responses may exist and that decisions need to be justified on a ‘case-by-case’ manner and the unique particularities of each clinical encounter.

Future perspectives

Our results show that for psychiatrists, murder fantasies as such do not automatically imply action whereas legal professionals are significantly more concerned about the potential victim's security. Psychiatrists tend to emphasize the difference between fantasies and ‘real’ actions, a distinction which legal professionals seem to be less familiar with. This is an interesting aspect and worth to be further evaluated and confirmed, since clinical training seems to be a factor influencing correct evaluation of dangerousness in these situations.

The findings made in this study are restricted to the role of confidentiality in forensic settings. Future research should investigate similar case scenarios with medical professionals outside forensic contexts in order to make statements valid for general practitioners.