Theexisting medical wisdom informing confidentiality and its breach havereceived wide criticism in the past few years. Among the variousrecognized scholar who have critiqued the wisdom informing qualifiedmedical confidentiality Kipnis is the most pronounced. In his articlea defense of unqualified medical confidentiality, Kipnis arguesfor complete confidentiality and questions the rationale behindqualified confidentiality policies that dominate in contemporarymedical practice. According to Kipnis, the commonly held perceptionson the breach of perception are influenced by three main schools ofthought: the law, personal morality requirements, and personalvalues. The law draws its authority from Tarasoffv. Regents of the University of California inwhich the Supreme Court of California in 1974 held that theUniversity was liable to compensate the family for the loss of theirdaughter.
However,the law as Kipnis successfully argues creates special and not generallegal duties. For him, special duties apply to individuals occupyingcertain roles. For instance, in the case of Tarasoff, the duty towarn only applied to those holding special roles. Under this view,Kipnis argues that if his neighbor assured him of killing hergirlfriend, the Tarasoffs jurisprudence does not require him towarn the girlfriend (Kipnis, 9).
Underthe personal morality perspective, Kipnis argues that individuals arelargely influenced by individual moral perceptions. While numerousmedical codes exist to standardize ethical practices, the influenceof personal moral views cannot be completely ruled out. Equallyimportant in the discussion ethical decision-making as Kipnis arguesis the relevance of personal values. Personal values according toKipnis defined personal conduct. When making ethical decisions,Kipnis argues that we often consider how each of the availableoptions furthers or frustrates personal values and then try to decidewhich has good or bad consequences.
Kipnispostulates the application of his perspectives through the case ofthe infected spouse. In this case, One of the spouses, Andrew hasbeen infected with the AIDs virus after separating with his wife. Thetwo are willing to reconcile but Andrew does not offer assurance tohis doctor that he will inform Wilma (the wife) of his AIDs status.The doctor is sure that Wilma is HIV negative, thus, reconciling withAndrew as her husband puts her in danger of contracting the deadlyvirus. Under this case, the existing code in medical practice demandsthat informing Wilma about Andrews HIV status is the best course ofaction since it is highly probable that Wilma will remain infectionfree if she is informed: otherwise, she risks the danger of dyingfrom aids if she is not informed of Andrews HIV status. Kipnisquestion the essence of this form of confidentiality, one thatdemands that doctors lies before the eyes of their patients thattheir data is confidential, yet in a reality, there are circumstancesthat demand breach of that confidentiality. Kipnis thus proposes anunqualified confidentiality rule, which plainly prohibits theprofessional from breaching the confidentiality of the client.Otherwise, the profession should truthfully admit to patients thatconfidentiality is fictitious and not strictly achievable.
Ofcourse, Kipnis is liberal enough to admit the challenges that doctorshave to go through when making ethical decision-making, butconservative enough not to allow the appealing notion of societyprotection to override obligations to protect patientsconfidential information. For him, the best public protection isachieved when doctors do their best work, and their trust worthinessis probably the most important prerequisite (Kipnis 16).
Theconcept of duty to warn also referred to as failure to warn is one ofthe main exceptions to client confidentiality. The essence of thisconcept is that if a therapist learns that a client a intends to doharm to others, the therapist has a duty to inform the people whoahave been threatened. The courts in several cases have establishedthat therapists have a duty to warn people who have been the focus ofthreats made in therapy by clients. In fact, some states have enactedduty to warn laws. When assessing whether the clients threat isviable, the doctor/clinician should ask the following questions: isthe client dangerous to others?, is the danger the result of seriousmental illness? Is the danger serious? Are the means to carry out athreat available? Is the danger targeted at identifiable victims, isthe victim accessible? Of course, of the questions to be askeddepends on the existing circumstance, however, the clinician mustestablish authoritatively that the client poses a danger to thepublic or the targeted audience, and the targeted audience or publicwill be deadly harmed by the actions of the client.
Underthe infected spouse case, the doctor will have to establish that theAndrew HIV positive, that Wilma is HIV negative, that Andrew does notintend to inform or protect Wilma from contracting the infection and that both Andrew and Wilma will engage in activities that fosterWilmas risk of contracting the deadly disease. Based on the case,Andrew is infected with the HIV virus, he does not offer assurance tothe doctor that he will protect Wilma or inform her about her currentHIV status, Wilma is HIV negative and she has a high probability ofcontracting the disease if she is not informed. The best course ofaction under the duty to warn obligation is to inform Wilma aboutAndrews HIV status and the possible negative effects of engaging inactivities that endanger her life.
Theimportance of duty to warn is well exemplified by Robertson in hisThe consequence of qualified confidentiality feature in theJournal of Bioethics as a response to Kipniss support forunqualified confidentiality. In this response, Robertson provide awell-ordered response to the arguments presented by Kipnis forunqualified confidentiality. According to Robertson, the Kipnissargument for unqualified confidentiality is skewed, misinformed, andlacking in substance. Robertson observes three main faults fromKipniss argument: the lack of a guiding example on how a qualifiedconfidentiality warning might look like, provision of irrelevantexamples where confidentiality was completely breached, and the overreliance of the assumption that people have reason and therefore arelikely to act depending on their past experiences. In the nutshell,Robertson successfully proves that Kipnis does not show whether thecurrent qualified confidentiality regime in medical practice deters asignificant number of patients from receiving medical services.Furthermore, he does not extrapolate his imaginations beyond theinfected spouse case which Robertson considers to be very narrow.Robertson gives an example of an infected individual who hasextremely contagious deadline disease that can wipe the entirepopulation. In such a case, disclosure can save millions of lives.
Thefact that confidentiality is a basic tenet of the medical professionis widely held in contemporary medical literature. However, when tobreach the professional duty to maintain confidentiality is fiercelycontented among different scholars and professionals. Nevertheless, agreat number of the medical professional prefer the application ofqualified confidentiality in which the duty to protect confidentialdata is only limited to the circumstances prevailing at the time thedecision is made. Based on the review of both Kipnis and Robertson onthe case of unqualified and qualified confidentiality respectively, Iam more inclined towards Robertsons school of thought thanKipniss. This is because, Kipniss views on confidentiality areradical, inconsiderate, and against the principle of doing good toothers. Whether considered ethically, or professionally, an argumentthat calls for the absolute protection of confidentiality even incircumstances where the public might be significantly harmed isirrational and ill-intended. Furthermore, the recent example of Ebolain western Africa bears testimony of the importance of a qualifiedapproach to confidentiality in the medical profession. If populationsaround the world would not have been informed when the first case ofEbola was reported, millions and perhaps billions would have losttheir lives because of the deadly nature of the virus.
Inaddition, the reasoning offered by Robertson in his critiques ofKipnis view of qualified confidentiality is fact based. Forexample, the observation, that Kipnis presents irrelevant cases tosupport his argument is true. Furthermore, there are many cases whereKipnis completely deviates from the original purpose of his argumentto offers conflicting positions on the case for unqualifiedconfidentiality.
Kipnis,Kenneth. A defense of unqualified medical confidentiality.AmericanJournal of Bioethics6.2, 7-18. Print.
Robertson,Christopher. The consequence of qualified confidentialityThe American Journal of Bioethics, 2006. 6.2.31-32. Print.