Journal of medical ethics, I979, 5, 57-64

The nature of confidentiality*

Ian E Thompson Edinburgh Medical Group Research Project in Medical Ethics and Education.University of Edinburgh, Edinburgh

This paper examines confidentiality and its natureand analyses the guidelines laid down by theHippocratic Oath as well as the British and WorldMedical Associations for maintaining suchconfidentiality between doctor and patient.There are exceptions to practically any code of rulesand this is true also for confidentiality. Some ofthese exceptions make it appear that very little isconfidential.

The three values implicit in confidentialitywould seem to be privacy, confidence and secrecy.Each of these values is discussed and developed in thispaper. In conclusion, the question is suggested thatmaybe in the face of death, doctor and patientneed to re-examine the pre-suppositions of privacy,confidence and secrecy on which the confidentialrelationship is based.

A question of confidentialityWhy is confidentiality so important or valuable initself ? Most of the available professional codes donot answer this question. They assume that thevalue of confidentiality is self-evident, and do notseriously examine the grounds for maintainingrelationships of confidentiality, nor do they provideadequate moral or philosophical justification fordoing so.

It is customary to point to the Hippocratic Oathand then to imply that its provisions have governeddoctor-patient relationships since the 5th centuryBC. For example, the BMA handbook on MedicalEthics' begins with an appeal to the Oath as afoundation for medical ethics. In a recent state-ment on confidentiality the Royal College ofPsychiatrists asserts:

One of the few provisions of the Hippocratic Oathwhich has remained unaltered over nearly 3,000years is that relating to confidentiality:'And whatsoever I shall see or hear in the course ofmy profession, as well as outside my profession inmy intercourse with men, if it be what should notbe published abroad, I will never divulge, holdingsuch things to be holy secrets.'

'I will respect the secrets which are confided in me,even after the patient has died.' 2

This appeal to the '3,ooo year-old tradition of theHippocratic Oath' is not historically justified,because the Oath has not been a regular or constantbasis of medical practice through the ages. Weshould remember that the oath originated in whatwas an esoteric cult, and the obligations of secrecywere as much concerned with protecting tradesecrets and maintaining control over initiates asthey were concerned with the patient's interest.(It might be remarked in passing that it is alwaysas much in the practitioner's as the patient's interestto maintain relationships of confidentiality, especiallyin private practice). In fact, the Oath only appliedto the Hippocratic School and there were otherschools in antiquity without such requirements.With the establishment of the mediaeval uni-versities and faculties of medicine, and with theattempts by Roger II of Sicily in II 40 and FrederickII in 1224 to control and regulate healing practicesby legislation, new interest in the Oath was shownby certain guilds of physicians. However, its usenever became general. It was only during the lateeighteenth and early nineteenth centuries, whenphysicians and surgeons were struggling to achieverecognition as professionals in their own right, thatthe demand for an explicit code of professionalpractice became important. 3 The Hippocratic Oaththus came to be adopted as the trademark of theVictorian doctor, as physicians and surgeons buriedthe hatchet and turned to more subtle forms ofinternecine conflict. One of the paradoxes faced bymodern medicine and one of the reasons why theHippocratic Oath has had to be qualified by somany other Codes and Declarations, is that modernmedicine is built not on secrecy and rites ofinitiation, but on exoteric scientific knowledge, onfree publication and open access to the results ofmedical research. These developments now compelus to re-examine the grounds for confidentiality.

Is there a principle of confidentiality?

The undertaking is repeated in the Declaration of The I974 BMA handbook on Medical Ethics boldlyGeneva: reaffirms the doctor's obligation to maintain secrecy

in what appear to be most uncompromising terms:*This paper was first delivered to a conference of theRoyal College of Psychiatrists (Scottish Division) inSeptember 1977.

It is a doctor's duty strictly to observe the rule ofprofessional secrecy by refraining from disclosing

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58 Ian E Thompson

voluntarily to any third party, information whichhe has learned directly or indirectly in his pro-fessional relationship with the patient. The death ofthe patient does not absolve the doctor from theobligation to maintain secrecy. 4

However, there immediately follow a list of fivekinds of exception:

The exceptions to the general principle are:a) the patient or his legal adviser gives validconsentb) the information is required by lawc) the information regarding a patient's health isgiven in confidence to a relative or other appropriateperson, in circumstances where the doctor believesit undesirable on medical grounds to seek thepatient's consentd) rarely, the public interest may persuade thedoctor that his duty to the community may overridehis duty to maintain his patient's confidence;e) information may be disclosed for the purposes ofany medical research project specifically approvedfor such exception by the BMA including in-formation on cancer registration. 5

What, one might ask, remains of the patient's rightto privacy if the doctor's discretion is so large? Ifit were not in the doctor's own interest to maintainrelationships of confidentiality, one wonders if thereaffirmation of the patient's right to privacy wouldamount to more than pious rhetoric.

It is significant that except in the case ofthe doctorbeing required by law to disclose information incourt, the other caveats offered serve to emphasiseeither the autonomy of the medical profession indeciding what is in the common good (in mattersrelating to Public Health, Medical Research andHealth Service Planning), or in emphasising thedoctor's right to independent clinical judgement,(in situations where he considers it undesirable toseek the patient's consent to disclose inform-ation).The point at issue is not whether the medical

profession should be an autonomous self-regulatingbody, nor is it a matter of undermining or attackingthe doctor's clinical judgement. The question iswhether confidentiality is a matter of principle or amatter of practical medical expediency. Is therereally a 'principle of confidentiality' as the BMAasserts? If so, why do more doctors not go toprison rather than divulge professional secrets ? Isa person entitled to privacy as a 'right'? In certaincircumstances that right is enforceable in a court oflaw - in the sense that an injured party can seeklegal redress for the public disclosure of con-fidential information. However, what kind of rightis it, and what weight should it be given in relationto other rights ? Is it an unconditional moral right ?Should the privilege of withholding confidentialinformation which applies in this country only to

lawyers, and in certain circumstances to priests, beextended to doctors ?These are some of the questions which should be

considered if confidentiality is a matter of strictprinciple rather than conventional and usefulpractice. In what follows an attempt is made toclarify some of the values on which it might bepossible to argue that there is a principle at stakewhen matters of confidentiality arise.

Privacy, confidence, and secrecy: three valuesimplicit in confidentialityThe World Medical Association resolutions on'Medical Secrecy' and on 'Computers in Medicine'provide us with as near as we can get to a explicitstatement of the values underlying the concept ofconfidentiality:Whereas: The privacy of the individual is highly

prized in most societies and widely accepted as acivil right; and

Whereas: the confidential nature of the patient-doctor relationship is regarded by most doctorsas extremely important and is taken for grantedby the patient; and

Whereas: there is an increasing tendency towardsan intrusion on medical secrecy;

Therefore be it resolved that the 27th World MedicalAssembly reaffirm the vital importance ofmaintaining medical secrecy not as a privilegefor the doctor, but to protect the privacy of theindividual as the basis for the confidentialrelationship between the patient and his doctor;and ask the United Nations, representing thepeople of the world, to give to the medical pro-fession the needed help and to show ways forsecuring this fundamental right for the individualhuman being. 6

This resolution, anticipating as it does the possibleabuse of data storage and retrieval systems toinvade the privacy of individuals and greater statecontrol of the lives of individuals, particularly intotalitarian states, enunciates three values implicitin confidentiality:

I) Privacy: The right of the individual to privacy.2) Confidence: The necessary ground of thedoctor/patient relationship or contract.3) Secrecy: The doctor's right to independentclinical judgement, and the question of truthfulnessin inter-personal relations.

PRIVACY: THE SCOPE AND LIMITS OF THE RIGHT TOPRIVACYWe may all agree that there is an implicit threat toindividual liberty in modem increasingly centralisedand technocratic societies. These dangers can beseen in modern technological developments such ascomputer storage of information, techniques of

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The nature of confidentiality 59

photocopying, and the invasion of personal privacyby the mass media. However, we may still ask: Isthere a right to privacy ?For personal reasons we may feel that privacy is

important, but is it a moral right? For practicalreasons (Public Health, Research Interests, HealthService Planning) medical confidentiality can beoverruled. For political ends the state may decideto abrogate an individual's so-called 'right toprivacy'.The 'right to privacy' might well be regarded by

many as a device of medical/political rhetoric or animpractical ideal, but on logical grounds, if weconcede the existence of individual human rightsof any kind, then it is almost tautologically self-evident that there must be a 'right to privacy' forwithout it there would be no private individuals tohave or exercise those rights. That the individualshould be spiritually inviolate, in the sense of beingprotected from the invasion, violation and abuse ofhis privacy would seem to be the necessary pre-supposition of his possession of any of the otherindividual human rights claimed for him, eg theright to freedom of speech, freedom of movementand association, freedom of worship etc. We must,I think, grant the existence of a right to privacy onformal grounds once we concede the existence ofpersonal rights in any form. Since it is not ourpurpose to dispute that, the question becomes oneof interpreting the scope and limits of the right toprivacy.The moral situation in which patient and doctor

encounter one another is one which gives to privacya special value, confidential privacy is inherent inthe situation as a moral pre-supposition for at leastthree reasons:

i) The patient approaches the doctor under duressof fear, pain or need. This means that the patient isinherently vulnerable and disadvantaged in relationto the doctor. The 'contract' between them is not acontract as between equals (hence it maybe mis-leading to speak as some sociologists do of patientsas 'consumers'). The patient is a patient (ie asufferer), a person who may well be conforming tothe sick role, but whose disease has forced him toaccept the limitations and obligations of that roleas well as its possible advantages. The moralresponsibility of the doctor in the first instance isto respect the vulnerability of the 'patient'; hisprivacy in this sense.

2) The fact that the doctor is a member of a con-sulting and not just scholarly profession, meansthat 'patients' come to him in situations which areof their very nature private, in the consulting roomor the relative privacy possible in the hospital ward.The contract to enter into the secrecy of a privateconsultation implies obligations binding really on

both parties, especially where the relationship is oneof co-operation based on the acceptance of the

authority of one party to guide or even direct theperformance of unusual acts (eg getting undressed,allowing examination of intimate parts, disclosingntimate information.)3) The sharing of intimate information in theactivity of truth-telling, involves the implicit rulesof reciprocal confidence, otherwise the processcould not get started. Violation of confidence doesnot just involve an infringement of a rule of pro-cedure as if it were a game which does not mattercrucially (like admissible cheating in poker). Itcontradicts the possibility of the 'game' itself. Thisis why both parties to a broken confidential re-lationship feel mortally wounded.

These factors of initial vulnerability, voluntaryself-exposure and confidence-sharing create specialobligations in the one to whom these gestures ofintimacy and private self-revelation are made. Weimplicitly recognise this when we discourageimportunate people from unburdening themselvesto us. They not only demand our attention butimpose unwelcome obligations on us.

Areas of medicine where respect for the 'right toprivacy' would appear to be particularly importantare psychiatry and reproductive medicine. Inpsychiatry the issue of privacy is important becauseof the peculiar vulnerability of the mentally ill,because of the probing nature of psychiatricinvestigations of people's psycho-sexual behaviourand problems of social adjustment, and because ofthe considerable stigma still associated with mentalillness. The information elicited in the course ofpsychiatric treatment makes the patient extremelyvulnerable to both psychological manipulation andcriminal blackmail (if the information falls into thewrong hands). In reproductive medicine, in thetreatment of gynaecological disorders, male in-fertility and venereal disease, the issue of privacy isimportant in relation to the prevailing attitudes andfeelings of shame about sexual matters. While thesemay be culture-dependent and culture-specific,nevertheless taboos and feelings of shame arecommon to all societies in relation to differentthings for different people, and the right to privacyremains important in relation to these feelings.The stigma of illness is not just imposed by

society nor just by the medical profession, but morefundamnentally, as Bonhoeffer 7 has suggested byshame, ie an awareness of injury, lack of health,wholeness or spiritual dis-ease:

The peculiar fact that we lower our eyes when a

stranger's eye meets our gaze is not a sign ofremorse for a fault, but a sign of shame which,when it knows that it is seen, is reminded of some-thing it lacks, namely, the lost wholeness of life,its own nakedness....

The dialectic of concealment and exposure is onlya sign of shame. Yet shame is not overcome by it;

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it is rather confirmed by it. Shame can only beovercome when the original unity is restored.

In both medicine and religion, there tends to be a

tension between ideals of openness and attempts todefend the need for privacy. On the one handmedicine purports to be scientific in the sense thatit is based on public and verifiable facts, exotericknowledge and free exchange of research findings.On the other hand medicine, as a consulting pro-fession recognises in clinical relationships withpatients their vulnerability and need for privacy.In religion the more the stress has been placed on

the sinful and alienated nature of man, the more

the need for privacy in spiritual matters has beenemphasised. On the other hand the Christian idealof an open society, where men will not be afraid to'live in the light' or have their deeds 'shouted fromthe rooftops', is based on an expectation of a

redeemed society. Both medicine and religion facepainful dilemmas where these values conflict.

In wider society, to the extent that we valuejustice, democratic government and scientificprogress, privacy cannot be an absolute or un-

conditional right; but, to the extent that we recognisethe presence in society and its institutions of forceswhich are destructive of justice, democracy andscientific progress, we must also take account of theimportance of the right to privacy to protect vul-nerable people. The limits to the right to privacyare illustrated in the controversy over Lord Moran'sdisclosures, in his biography of Churchill, ofdetails of the strokes and other illnesses which hesuffered while in office.

Robitscher8 points to the potentially dangerousconsequences of impaired judgement resulting fromChurchill's illnesses. He not only questions theimplied condemnation of Lord Moran expressed ina contemporary editorial in the Lancet and theBMA resolution that the 'death of a patient doesnot absolve the doctor from his obligation ofsecrecy', but asks whether the physicians inquestion did not have a public duty to make thisinformation known when he was alive and possiblyto put pressure on their illustrious patient to resign.He suggests two tests concerning disclosure:

i) Was something disclosed to the confidant inthe course of and as an important part of securinghelp or treatment which would not have been dis-closed except in the process of gaining help ?2) Was the information, if divulged, 'fitting to bespoken'?

He concludes:

The physician is not only a doctor to his patient,but he also fulfils a public role, he gives reassurance

to the public concerning the health of its electedofficials. I submit that under such circumstancesthere can be justifiable exceptions to the principle

that the patient's state of health is a private ratherthan a public matter.

Another reviewer whom he quotes put it moredramatically:

a figure such as Churchill cannot have anyprivacy. He belongs to the world, alive or dead, andanything related to him, especially his healthproblems, are of universal interest.

The fact is that privacy is a relative state and one ofthe things that public figures sacrifice for thedubious benefits of political popularity or stardomis their right to privacy. The choice of a career inpublic office means the necessary exposure of yourlife to public scrutiny, and while decency anddecorum, and the laws of libel may set some limitsto public exposure, the public interest must in manycases take precedence over the right to privacywhere public security and the demands of justicerequire it.

CONFIDENCE: THE NECESSARY GROUND OF THE

PATIENT/DOCTOR RELATIONSHIP OR CONTRACTThe second value implicit in confidentiality isconfidence itself. This is not just a desirable con-commitant of medical practice, but an essentialmoral pre-requisite of the contractual relationshipinto which patient and doctor enter.At the practical level, as Balint9 suggests, 'the

efficacy of the drug: Doctor' depends upon it. Agreat deal of the efficacy of medicine depends on'the placebo effect', the ability of the doctor to winthe confidence and trust of the patient and tomaintain it often for many years.However, this confidence (cum-fides) is not just

desirable for its therapeutic benefits, it is anessential pre-supposition of the contract of co-operation in mutual truthfulness into which doctorand patient enter. Whereas privacy is primarily inthe patient's interest, confidence is in the mutualinterest of the contracting parties. It is the ex-pression of willingness to enter into the con-tractual relationship, of the patient's willingness tosubmit to the doctor's authority and of the doctor'swillingness to attend to the patient's needs to thebest of his ability. The relationship is not estab-lished once and for all, and, as Balint has suggested,the doctor and patient are involved in an on-goingnegotiation of the limits of their confidential re-lationship and the limits of truthfulness or opennessin that relationship through a series of symptomsoffered by the patient and responses by the doctor.Or, as Friedson 10 says:

The patient, for instance, is likely to want moreinformation than the doctor is willing to give him-more precise prognoses, for example, and moreprecise instructions. Just as the doctor struggles tofind ways of withholding some kinds of information,

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The nature of confidentiality 6i

so will the patient be struggling to find ways ofgaining access to, or inferring such information.Similarly, just as the doctor has no alternative butto handle his cases conventionally (which is to say,soundly), so the patient will be struggling to deter-mine whether or not he is the exception to theconventional rules.

In the conflict/co-operation underlying doctor-patient interaction, mutual confidence is a necessaryprerequisite. Distrust on either side is enough tobring a relationship to an abrupt end. Insofar asconfidence in this situation is essential to thefunctioning of the relationship, implicit respect formutual confidences is implied. However, thenature, form and limits of that confidentiality maynot be specified or explicit and perhaps ought to benegotiated more explicitly.

It is generally maintained, especially by doctorsand in the pious or indignant statements issued bytheir professional associations, that confidentialityis maintained primarily in the patient's interest.This assumption needs to be questioned if we areto get beneath the surface of the public rhetoricand consider more seriously the practical value andmoral significance of confidentiality. The secret ofthe doctor's power over his patient lies precisely inhis possession of what is often vital confidentialinformation (at least in the patient's view). Medicalpieties about confidentiality might be more con-vincing if doctors were more candid about thepart played in the 'management' of patients by thecontrol and selective disclosure of information. Itis also evident in the inter-collegial and inter-professional dealings of the doctor that the selectivedisclosure of confidential information is used by thedoctor both to assert and maintain control over'his' patients. The making of referrals is obviouslya game requiring great skill or art, both when itinvolves defining limits to responsibility forindividual patients, and when it involves 'passingthe buck'. The cruder forms of this exploitationof confidental information to maintain control ofpatients are perhaps more obvious in a situation offee-paying private medicine, but they operate nonethe less in the NHS too.To put the issue into perspective it is perhaps

necessary to stop and ask: whose confidences arethey, anyway? In a sense the question has a simpleanswer: they are the patient's confidences and thatis why the doctor has no moral right to use con-fidential information without the consent of thepatient or in the patient's interest.A radical expression of this point of view, and a

serious attempt to discuss and analyse its implicationsfor medical practice, is the important article byShenkin and Warner entitled 'Giving the patienthis medical record: a proposal to improve thesystem'. They argue that giving the patient hismedical record would:

a) provide the patient with better and morereliable information,b) lead to better patient compliance with medicaladvice,c) serve as an educational tool and,d) encourage the patient to accept more responsi-bility for his own health.

Further they argue that this would mean bettercontinuity in patient-care in an increasingly mobilepopulation, enable the patient to exercise widerfreedom in the choice of medical practitioners andconsultants, and improve physician-patient re-lations by making the relationship dependent onmore rational negotiation of contracts.The advantages to physicians of such an arrange-

ment would be, they argue, that it would have theeffect of promoting more regular and formal,though decentralised peer review, encourage doctorsto keep up to date and learn from one another. Theyalso claim this would lead to greater career satis-faction, as such decentralised peer review wouldprovide recognition for excellence in the practice ofmedicine rather than merely emphasise the prestigeof sophisticated research and high technologymedicine as the present system tends to do. Itwould also work to support the autonomy of thephysician and militate against the tendency tocentralised bureaucracy in health-care systems:

Adopting the Proposal would reduce fears aboutphysician accountability and quality. Self-regulating,decentralised peer review would provide betterindividual assessments than centralised review,since reviewers could correlate the patient himselfwith his record, instead of merely checking itsinternal consistency. Both inpatient and outpatientrecords would be used, and information would begenerated precisely at the points of usage - patientsand colleague physicians. On the other hand, somefunctions of centralised peer review, such asstandard setting, would not be pre-empted. 1 1

The situation in modern health-care, whether inthe USA or the UK is one of increasing involvementof other professionals and para-professionals andchanging patterns of inter-professional relation-ships. Whether in the technologically sophisticatedareas of hospital medicine, involving many special-ties, or in the primary medical care-team, there is,a situation of increasingly extended confidence.Whether we go along with this and accept the

fact that in the Welfare State with a NationalHealth Service there is an inevitable need for thedilution of confidentiality, in the interests ofefficient patient-care, systematic medical research,effective public health programmes and morerational health service planning; or whether we optfor a system which re-inforces patients's rights andphysician autonomy, say by giving patients theirmedical records, or reinforcing medical privilege in

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62 Ian E Thompson

relation to confidential information, involves notjust the moral issue of patients' rights versus publicinterest, but, more fundamentally, choices aboutwhat kind of society we wish to live in. It may wellbe too, that what is at issue in the present debateabout confidentiality concerns the very nature ofmedicine as a profession: Is medicine to remain aconsulting profession based on confidentiality,patient trust and medical autonomy and responsi-bility ?; or is the doctor to become a paid function-ary in an impersonal institution where industrialaction is compatible with offering medical servicesto the public ?The case of Dr R J D Browne illustrates one side

of the problem. He was charged with improperlydisclosing to the father of a girl then aged i6 thatshe had been prescribed an oral contraceptive byBirmingham Brook Advisory Centre. In a BMJeditorial 12 the dismissal of the charges against DrBrowne by the General Medical Council Dis-ciplinary Comnmittee was hailed as triumphantreaffirmation of:the principles of medical practice that the doctorhas an obligation to act in the way he judges to bein the best interests of his patient.Given the fact that Dr Browne thought it medicallyinadvisable for his patient to be given the particularoral contraceptive in question, it is argued that hewas acting properly to inform the girl's father.

In a later issue of the BMJ1 3 a senior barristerhas argued that the BMJ editorial's argument doesnot hold, that legally Dr Browne had no right toviolate his patient's confidence. He accuses themedical profession in effect of closing ranks overthe defence of one of their colleagues and thesacrosanct principle of the independence of thedoctor's clinical judgement.There is a public dimension to confidentiality

too, the question of the public confidence in theprofession. The crisis of identity through whichthe profession is passing as well as a possible crisisof confidence in the medical profession expressedby increasingly strident public criticism of doctors,argues the need for the profession to renegotiate itscontract with the public if confidence is to berestored. The BMA in its Handbook on MedicalEthics, tends to be rather arrogant about theethical standards and traditions of medicine andrather dismissive of social work and other pro-fessions. However, the present situation in medicinewith regard to confidentiality might well beilluminated by consideration of the example ofsocial work. 14

Because the status of social work as a profession isstill disputed and uncertain and because it isnotoriously difficult to set limits to the socialworker's task and responsibilities, it has provednecessary in practice for social workers to negotiatefairly explicit contracts with their clients. Likewise,

because the social worker has to act as a go-betweenand advocate on behalf of the client in so manysituations (as between client and local authority,hospital, police, etc.) and as an agent of the Courtsor the hospital in other situations, it has provednecessary for him to negotiate very carefully thebounds of confidentiality in his dealings withclients and on behalf of clients.Between the extremes of paternalistic and

authoritarian medicine, on the one hand, where thedoctor decides on the control and appropriatedisclosure of informnation; and the liberal alternativeof giving the patient his medical record and treatingthe patient's right to decide on the limits of con-fidentiality as sacrosanct, there stands what I wouldcall the social work model. This model has severaladvantages: it is flexible and adaptable to the needsof different people and patients with different kindsof complaints; it is based on a more open anddemocratic procedure; it allows due respect for thepatient's rights but also leaves scope for the dis-cretion and independent judgement of the doctor.While it does expose the patient to the risk ofundue pressure the demand that the limits ofconfidentiality should be explicitly determinedwithin the confidential relationship itself rather thanby external formal rules means that the processought to be self-regulating and self-correcting,subject only to the demands of accountability beforethe courts and the laws of libel. It means that thedoctor or other professional becomes not simplythe patient's representative but also society'srepresentative in representing to the patient thedemands of the common good - where the dis-closure of confidential infornmation may be ofbenefit to others besides himself.

All the authorities seem to agree that thetraditional safeguards against breaches of con-fidentiality which operated fairly successfully inthe patient/family-practitioner situation, do notwork adequately in modern hospitals and in-creasingly socialised medicine. It is arguabletherefore that the mutual interests of patient anddoctor could best be served by more open andexplicit discussion of the limits of confidentiality(the determination of what bits are confidential andwhich are not) so that both know where they stand,and by an extension to doctors of the privilegewhich applies to lawyers when the issue is thedisclosure of proscribed bits of information. It isnot enough to speculate that patients would objectto the disclosure of particular bits of information.The experience of social workers suggests that thereis relatively little that clients regard as strictlyconfidential. Most of what is required for efficienthealth service planning, medical research, etc. canbe obtained, it is suggested, without too muchdifficulty; but when confidentiality is important it iscrucially important, and should be recognised assuch. The vital issue is to determine when it is

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really important, and can only be breached withgrave consequences for patient/doctor trust andwith damaging consequences for the patient.

SECRECY: THE DOCTOR'S RIGHT TO INDEPENDENTCLINICAL JUDGEMENTIn the introduction it was suggested that secrecyshould be included among the values implicit inconfidentiality. It may well be asked, however,whether secrecy can be regarded as an end in itselfor merely as a means to an end. In earlier timeswhen medical and psychiatric knowledge was moreinsecure, and uncertain of its scientific base,members of the profession relied more explicitly onsecrecy. In fact, it might be suggested that the moreuncertainty, the more secrecy tends to surroundthat area of medicine, not only to protect thedoctor but to protect the patient from his ignorance.However, it is arguable that there is and will

remain a perennial tension in medicine betweenthe esoteric 'cultic' aspect of medicine and thepublic exoteric and scientific aspect, between thesaving, redemptive aspects of medicine and thoseaspects concerned with knowledge, prediction andcontrol of the disorders of human life. On the onehand, the doctor's secrets, both his knowledge ofthe mysteries of medicine and his knowledge of theintimacies of his patients' lives, is the secret of hispower. On the other hand, it is also the basis of hisclaim to autonomy in the exercise of his clinicaljudgement, knowledge and expertise, and familiaritywith the needs of his patient. The aura of secrecyalso serves to create patient dependence and com-pliance, defines the boundaries of the sick role andcreates the need for appropriate magic, whether inthe form of physical procedures or drugs. Howeverit also conveys a residual feeling of suspicionwhich can erupt into an 'anti-clerical' backlashagainst the whole medical establishment.

Medical science in its public and exoteric char-acter has a double effect on public attitudes. On theone hand, more general education of the public inscientific and medical matters creates pressuretowards the democratisation of health-care, sug-gests the possible liberation of patients fromdoctor-dependence and creates the demand for anew contract between the medical profession andthe public based on respect for patients' rights. Onthe other hand, the claim ofmedicine to be scientific,to be able to discover and explain the causes ofdisease, to predict and control their consequences,creates the spiral of rising expectations that medicinewill be able to cure all humanity's ills. Bothtendencies unfortunately often lead to increasingpublic scepticism and disillusionment and to anincrease in 'doctor bashing'. The disappointmentof public hopes in psychiatry seem to be a par-ticular case in point.The dialectic of secrecy and openness in medicine

is obviously part of the practical situation we have

to take into account, but it does not illustrate howsecrecy might be regarded as a value in its ownright. Part of the difficulty is that we tend to investsecrecy in general with a negative value, evenimplying that it is synonymous with deceit. This isbecause we tend to apply the paradigm of scientifictruth inappropriately to personal relationships, anduncritically accept the rationalist and liberal idealof openness as the norm of behaviour for pro-fessional relationships. Science is concerned withthe abstract and impersonal relationships of factsand propositions. Medicine, insofar as it is a humanscience is concerned with the degrees of truthfulnesspossible in different kinds of personal relationships.Secrecy and truthfulness stand in a differentrelationship from truth and falsity, truth and erroror truth and deceit. While truth and falsity applyto statements, truth and error to man's practicaljudgements and actions, truthfulness and deceitapply to the subtle inter-actions of persons inconfidential relationships. In a brilliant essay on'What is meant by "telling the truth" ?' Bonhoeffer 1 5suggests that 'it is only the cynic who claims "tospeak the truth" at all times and in all places to allmen in the same way' and that in reality such anattitude is destructive of the living truth betweenmen:

He wounds shame, desecrates mystery, breaksconfidence, betrays the community in which helives, and laughs arrogantly at the devastation he haswrought and at the human weakness which 'cannotbear the truth'.

Secrecy is not the enemy of truthfulness but thecompanion and guardian of truthfulness as weexplore the possibilities for truthfulness in a givensituation. Secrecy from this point of view has avalue because it has an intimate relationship withthe determination ofthe truth in each unique humansituation and the expression of truthfulness inpersonal relationships:

From the moment in our lives at which we learn tospeak we are taught that what we say must be true ...It is clear that in the first place it is our parents whoregulate our relation to themselves by this demandfor truthfulness; consequently, in the sense inwhich our parents intend it, this demand appliesstrictly only within the family circle. It is also to benoted that the relation which is expressed in thisdemand cannot simply be reversed. The truthful-ness of a child towards his parents is essentiallydifferent from that of the parents towards theirchild. The life of the small child lies open beforethe parents, and what the child says should revealto them everything that is hidden and secret, butin the converse relationship this cannot possibly bethe case. Consequently, in the matter of truthful-ness, the parents' claim on the child is differentfrom the child's claim on the parents.

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64 Ian E Thompson

From this it emerges already that 'telling the truth'means something different according to the par-ticular situation in which one stands. Account mustbe taken of one's relationships at each particulartime. The question must be asked whether and inwhat way a man is entitled to demand truthfulspeech of others. Speech between parents andchildren is, in the nature of the case, differentfrom speech between man and wife, betweenfriends, between teacher and pupil, government andsubject, friend and foe, and in each case the truthwhich this speech conveys is also different.

Telling the truth is then a matter of learning dis-crimination. It is a matter of sensitive appreciationof the demands of real situations and fidelity to thepeople involved in it. The example Bonhoeffer usesof the child forced into telling lies to protect hisfamily when subject to interrogation by the policeor a school teacher, is, he insists not a case ofdeceit, but the necessary use of secrecy to preservethe demands of truthfulness in situations ofdifferent kinds. We have here the paradox of thelie which is ultimately more truthful than the baretruth, because it attempts to safeguard the con-fidentiality of truth specific to each situation. Iftruthfulness in personal relationships is expressed interms of 'fidelity to the demands of the situation'and 'responsibility to other people', then secrecy isintimately involved as a value implicit in truthful-ness and deceit is in fact very rare and perhaps bestexemplified by the cynic who is determined to 'tellthe truth and be damned'.

Finally, there is a common kind of situation inwhich the rules of ordinary confidentiality may becalled in question, the crisis of the confidentialrelationship involved in the death or suicide of thepatient. Death highlights the limits of the doctor'sconfidence and perhaps underlines for him thefragmentariness of his knowledge and the failure ofhis art, especially in the case of premature death.However, death also represents something meta-physical which points to the ultimate boundaries ofhuman experience and raises questions about thesignificance of human life and the meing ofthe human condition. As such, it may be that in theface of death, doctor and patient need to re-examinethe pre-suppositions of privacy, confidence and

secrecy on which the confidential relation is based.Is the intense difficulty and anxiety experienced bydoctors in communicating bad prognoses related totheir own unwillingness to penetrate the secrets ofdeath with the dying in the kind of truthfulnesswhich involves both fidelity to the demands of thisnew and unique situation and responsibility to thepatient as person faced with a unique and un-repeatable life crisis ?

References

'British Medical Association (I974). Medical Ethics.London,BMAHouse, Tavistock Square, pp I-2,,13.

2British journal of Psychiatry (October I976), News andNotes: Confidentiality: A Report to Council, RoyalCollege of Psychiatrists.

3Friedson, E (I970/75). Profession of Medicine, NewYork. Dodd Mead & Company. Chapter i.

4British Medical Association (i974). Medical Ethics, p I3."Ibid, p 13.6Ibid, pp I7-I8. Cf. British Medical Journal (27 Jan

I973), pp 2I3-2I6, Medical Research Council:Responsibility in the Use of Medical Informationin Research.

7Bonhoeffer, D (I955). Ethics, London. SCM Press.pp 145-I47.

8Robitscher, J B (I967). Public Life and Private In-formation, Journal of the American MedicalAssociation, Oct 30,202, 5.

9Balint, M (I957/74). The Doctor, his Patient and theIllness. London. Pitman Medical. pp I I-i8.

°Friedson, E (1970/75). Op. cit. p 322."Shenkin, B N and Warner, D C (1973). Giving the

Patient his Medical Record: A Proposal to Improvethe System, New England Journal of Medicine,27 Sept, pp 688-692. Cf. American PsychiatricAssociation (I972). Position Statement on the Needfor Preserving Confidentiality of Medical Recordsin Any National Health Care System, AmericanJournal ofPsychiatry, I28, I0 April.

"British Medical Journal (Editorial) (20 March 1971),A Case ofConfidence.

"British Medical_Journal (23 June 1973). New Horizonsin Medical Ethics.

"British Association of Social Workers (I97I). Con-fidentiality in Social Work, London. DiscussionPaper No i, BASW Publications, The OxfordHouse, Derbyshire Street, E2 6HG.

5Bonhoeffer, D (I955), Op. cit. pp 326-334.

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