FleckAngellCaseStudiesPleaseDontTell.pdf

Case Studies: Please Don't Tell!Author(s): Leonard Fleck and Marcia AngellSource: The Hastings Center Report, Vol. 21, No. 6 (Nov. – Dec., 1991), pp. 39-40Published by: The Hastings CenterStable URL: http://www.jstor.org/stable/3562362 .Accessed: 08/01/2014 16:41

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Hastings Center Report, November-December 1991

g o Wl. 5″M COMMENTARY

by Leonard Fleck f there were a home health nurse to care for this patient, presumably there would be no reason to breach con-

fidentiality since the expectation would be that she would follow universal precautions. Of course, universal precautions could be explained to the patient's sister. In an ideal world this would seem to be a satisfactory response that protects both Carlos's rights and Consuela's welfare. But the world is not ideal.

We know that health professionals, who surely ought to have the knowledge thatwould motivate them to take universal precautions seriously, often fail to take just such precautions. It is easy to imagine that Consuela could be equally casual or careless, especially when she had not been specifically warned that her brother was HIV-in- fected. Given this possibility, does the physician have a duty to warn that wouldjustify breaching confidentiality? I shall argue that he may not breach confidentiality but he must be reas- onably attentive to Consuela's safety. Ordinarily the conditions that must be met to invoke a duty to warn are: (1) an imminent threat of serious and irre- versible harm, (2) no alternative to averting that threat other than this breach of confidentiality, and (3) proportionality between the harm averted by this breach of confidentiality and the harm associated with such a breach. In myjudgment, none of these conditions are satisfactorily met.

No one doubts that becoming H1V- infected represents a serious and irre- versible harm. But, in reality, is that threat imminent enough to justify breaching confidentiality? If we were talking about two individuals who were going to have sexual intercourse on repeated occasions, then the im- minence condition would likely be met. But the patient's sister will be caring for his wound for only a week or two, and wound care does not by itself involve any exchange of body fluids. If we had two-hundred and forty surgeons operating on two-hundred and forty HIV-infected patients, and if each of those surgeons nicked himself while

Please Don't Tell!

The patient, Carlos R., was a twenty- one year old Hispanic male who had suffered gunshot wounds to the ab- domen in gang violence. He was unin- sured. His stay in the hospital was some- what shorter than might have been ex- pected, but otherwise unremarkable. It was felt that he could safely complete his recovery at home. Carlos admitted to his attending physician that he was HIV- positive, which was confirmed.

At discharge the attending physician recommended a daily home nursing visit forwound care. However, Medicaid would not fund this nursingvisitbecause a caregiver lived in the home who could adequately provide this care, namely, the patient's twenty-two-year-old sister Consuela, who in fact was willing to ac-

cept this burden. Their mother had died almost ten years ago, and Consuela had been a mother to Carlos and their younger sister since then. Carlos had no objection to Consuela's providing this care, but he insisted absolutely that she was not to know his HIV status. He had always been on good terms with Con- suela, but she did not know he was ac- tively homosexual. His greatest fear, though, was that his father would learn of his homosexual orientation, which is generally looked upon with great dis- dain by Hispanics.

Would Carlos's physician be morally justified in breaching patient confiden- tiality on the grounds that he hada “duty to warn”?

doing surgery, then the likelihood is that only one of them would become HIV-infected. Using this as a reference point, the likelihood of this young woman seroconverting if her intact skin comes into contact with the blood of this patient is very remote at best.

Moreover in this instance there are alternatives. A frank and serious discus- sion with Consuela about the need for universal precautions, plus monitored, thorough training in correct wound care, fulfills what I would regard as a reasonable duty to warn in these cir- cumstances. Similar instructions ought to be given to Carlos so that he can monitor her performance. He can be reminded that this is a small price for protecting his confidentiality as well as his sister's health. It might also be neces- sary to provide gloves and other such equipment required to observe univer- sal precautions.

We can imagine easily enough that there might be a lapse in conscientious- ness on Consuela's part, that she might come into contact with his blood. But even if this were to happen, the likelihood of her seroconverting is

remote at best. This is where propor- tionality between the harm averted by the breach and the harm associated with it comes in. For if confidentiality were breached and she were informed of his HIV status, this would likely have very serious consequences for Carlos. As a layperson with no professional duty to preserve confidentiality herself, Con- suela might inform other family mem- bers, which could lead to his being ostracized from the family. And even if she kept the information confidential, she might be too afraid to provide the care for Carlos, who might then end up with no one to care for him.

The right to confidentiality is a right that can be freely waived. The physician could engage Carlos in a frank moral discussion aimed at persuading him that the reasonable and decent thing to do is to inform his sister of his HIV status. Perhaps the physician offers as- surances that she would be able to keep that information in strict confidence. The patient agrees. Then what hap- pens? Itis easy to imagine that Consuela balks at caring for her brother, for fear of infection.

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Hastings Center Report, November-December 1991

Medicaid would still refuse to pay for home nursing care because a caregiver would still be in the home, albeit a terrified caregiver. Consuela's response may not be rational, but it is certainly possible. If she were to react in this way it would be an easy “out” to say that it was Carlos who freely agreed to the release of the confidential information so now he'll just have to live with those consequences. But the matter is really more complex than that. At the very least the physician would have to ap- prise Carlos of the fact that his sister might divulge his HIV status to some number of other individuals. But if the physician impresses this possibility on Carlos vividly enough, Carlos might be even more reluctant to self-disclose his HIV status to Consuela. In that case the physician is morally obligated to respect that confidentiality.

LeonardM. Fledt is associate professor Cen- ter for Ethics and Humanities in the Life Sciences, Michigan State University, East Lansing Mich.

COMMENTARY by Marcia Angell

t would be wrong, I believe, to ask this young woman to undertake the nursing care of her brother and not in-

form her that he is HIV-infected. The claim of a patient that a doctor

hold his secrets in confidence is strong but not absolute. It can be overridden by stronger, competing claims. For ex- ample, a doctorwould not agree to hold in confidence a diagnosis of rubella, if the patient were planning to be in the presence of a pregnant woman without warning her. Similarly, a doctor would bejustified in acting on knowledge that a patient planned to commit a crime. Confidentiality should, of course, be honored when the secret is entirely per- sonal, that is, when it could have no substantial impact on anyone else. On the other hand, when it would pose a major threat to others, the claim of confidentiality must be overridden. Dif-

ficulties arise when the competing claims are nearly equal in moral weight.

In this scenario, does Consuela have any claims on the doctor? I believe she does, and that her claims are very com- pelling. They stem, first, from her right to have information she might consider relevant to her decision to act as her brother's nurse, and, second, from the health care system's obligation to warn of a possible risk to her health. I would like to focus first on whether Consuela has a right to information apart from the question of whether there is in fact an appreciable risk. I believe that she has such a right, for three reasons.

First, there is an element of decep- tion in not informing Consuela that her brother is HIV-infected. Most people in her situation would want to know if their “patient” were HIV-infected and would presume that theywould be told if that were the case. (I suspect that a private nurse hired in a similar situation would expect to be told-and that she would be.) At some level, perhaps un- consciously, Consuela would assume that Carlos did not have HIV infection because no one said that he did. Thus, in keeping Carlos's secret, the doctor implicitly deceives Consuela–not a net moral gain, I think.

Second, Consuela has been im- pressed to provide nursing care in part because the health system is using her to avoid providing a service it would otherwise be responsible for. This fact, I believe, gives the health care system an additional obligation to her, which in- cludes giving her all the information that might bear on her decision to ac- cept this responsibility. It might be ar- gued that the information about her brother's HIV infection is not relevant, but it is patronizing to make this as- sumption. She may for any number of reasons, quite apart from the risk of transmission, find it important to know that he is HIV-infected.

Finally, I can't help feeling that this young woman has already been ex- ploited by her family and that the health care system should not collude in doing so again. We are told that since she was twelve, she has acted as “mother” to a brother only one year younger, presumably simply because she is female, since she is no more a mother than he is. Now she is being asked to be a nurse, as well as a mother, again presumably because she is

female. In this context, concerns about the sensibilities of the father or about Carlos's fear of them are not very com- pelling, particularly when they are but- tressed by stereotypes about Hispanic families. Furthermore, both his father and his sister will almost certainly learn the truth eventually.

What about the risk of transmission from Carlos to Consuela? Many would–wrongly, I believe–base their arguments solely on this question. In- sofar as they did, they would have very little to go on. The truth is that no one knows what the risk would be to Con- suela. To my knowledge, there have been no studies that would yield data on the point. Most likely the risk would be extremely small, particularly if there were no blood or pus in the wound, but itwould be speculative to say how small. We do know that Consuela has no ex- perience with universal precautions and could not be expected to use them diligently with her brother unless she had some sense of why she might be doing so. In any case, the doctor has no right to decide for this young woman that she should assume a risk, even if he believes it would be remote. That is for her to decide. The only judgment he has a right to make is whether she might consider the information that her brother is HIV-infected to be relevant to her decision to nurse him, and I think it is reasonable to assume she might.

There is, I believe, only one ethical way out of this dilemma. The doctor should strongly encourage Carlos to tell his sister that he is HIV-infected or offer to do it for him. She could be asked not to tell their father, and I would see no problem with this. I would have no hesitation in appealing to the fact that Carlos already owes Consuela a great deal. If Carlos insisted that his sister not be told, the doctor should see to it that his nursing needs are metin some other way. In sum, then, I believe the doctor should pass the dilemma to the patient: Carlos can decide to accept Consuela's generosity-in return for which he must tell her he is HIV-infected (or ask the doctor to tell her)-or he can decide not to tell her and do without her nursing care.

Marcia Angell is executive editor, New EnglandJournal of Medicine.

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  • Article Contents
    • p. 39
    • p. 40
  • Issue Table of Contents
    • The Hastings Center Report, Vol. 21, No. 6 (Nov. – Dec., 1991), pp. 1-48
      • Front Matter [pp. 1-1]
      • At the Center
      • In Brief
        • The Dutch & the Dying [p. 2]
        • AIDS & Entrepreneurs [pp. 2-3]
        • An End to TATP in the UK [p. 3]
        • R2D2 & U [pp. 3-4]
        • The Patient's Choice [p. 4]
        • Back in the USSR [p. 4]
      • Political Sea Changes and Bioethics: Prague 1991 [pp. 5-6]
      • Second Thoughts on Living Wills [pp. 6-9]
      • In Memory of Shirley Katzenbach [p. 9]
      • Organs for Transplantation The Singapore Experience [pp. 10-13]
      • Directed Donation The Relevance of Race [pp. 13-19]
      • Silencing the Singer Antibioethics in Germany [pp. 20-27]
      • Is Consent Useful When Resuscitation Isn't? [pp. 28-36]
      • At Law: Whose Child Is This? [pp. 37-38]
      • Case Studies: Please Don't Tell! [pp. 39-40]
      • Reviews
        • Review: In Women's Voices [pp. 41-42]
        • Review: Reflections of a Practical Philosopher [p. 42]
      • Letters
        • Vested Interests [p. 43]
        • Not out of Court [p. 43]
      • In the Literature [pp. 44-45]
      • Research Notes [p. 46]
      • The Latest Word [p. 47]
      • Back Matter [pp. 48-48]
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