Commentary: so the pendulum swings--making sense of the duty to protect

Psychiatry has been struggling for nearly 40 years to make sense of the duty to protect. The great jurisdictional disparity as to what constitutes the duty has been a significant contributing factor. The American Psychiatric Association (APA) released the Model Statute in 1987 to establish a framework to guide legislators and courts toward consensus, to some effect. In response to case law and statutory requirements in most states, psychiatric practice has incorporated the assessment of risk to third parties by patients as an essential element of psychiatric assessment and care. Although court cases shortly after the Tarasoff decision expanded the scope and breadth of the duty to protect, in recent years there appears to have been a shift toward a more narrow interpretation as to what conditions must exist to find a defendant psychiatrist guilty of failing to exercise the duty properly. The threshold for the duty to warn or protect often rests precariously beside the criteria permitting an exception to confidentiality, placing the psychiatrist in a tenuous position. If appellate verdicts continue to find for the defendant psychiatrist in cases claiming a breach of the duty to protect, it could have an impact on how psychiatrists assess and manage threats made by patients toward third parties.

Duty to warn and genetic disease

In this clinical column, we discuss the ambiguous distinction between genetic research and clinical genetics, particularly for Mendelian diseases with high recurrence risk, high morbidity and/or mortality and the possible amelioration of such diseases by screening or treatment. We use arrhythmogenic right ventricular cardiomyopathy as an example of a lethal Mendelian disorder, which prompted the discussion contained in this column. Working with such diseases may mean that genetic researchers have some responsibility for both immediate research subjects and their extended families, as they obtain molecular genetic information. For some diseases, therefore, a willingness to accept genetic research results should be an inclusion criterion, and it may be considered unethical for research ethics boards to approve genetic studies unless measures to ensure clinical follow-up have been established. We recommend managing the tensions between genetic research and clinical practice by using disease-based genetic registers, organized within a clinical genetic service.

Policy statement--Physician refusal to provide information or treatment on the basis of claims of conscience

Health care professionals may have moral objections to particular medical interventions. They may refuse to provide or cooperate in the provision of these interventions. Such objections are referred to as conscientious objections. Although it may be difficult to characterize or validate claims of conscience, respecting the individual physician's moral integrity is important. Conflicts arise when claims of conscience impede a patient's access to medical information or care. A physician's conscientious objection to certain interventions or treatments may be constrained in some situations. Physicians have a duty to disclose to prospective patients treatments they refuse to perform. As part of informed consent, physicians also have a duty to inform their patients of all relevant and legally available treatment options, including options to which they object. They have a moral obligation to refer patients to other health care professionals who are willing to provide those services when failing to do so would cause harm to the patient, and they have a duty to treat patients in emergencies when referral would significantly increase the probability of mortality or serious morbidity. Conversely, the health care system should make reasonable accommodations for physicians with conscientious objections.

Facilitated disclosure versus clinical accommodation of infidelity secrets: an early pivot point in couple therapy. Part 1: couple relationship ethics, pragmatics, and attachment

A critical and potentially polarizing decision in treating infidelity is whether facilitating partner disclosure or accommodating nondisclosure is most beneficial following private disclosure of infidelity to the therapist. Given couple distress and volatility following disclosure, understandably some therapists judge accommodating an infidelity secret both efficient and compassionate. Employing Western ethics and an attachment/intimacy lens, we consider ethical, pragmatic, and attachment intimacy implications of accommodating infidelity secrets. Issues bearing on the decision to facilitate disclosure or accommodate nondisclosure include (a) relationship ethics and pragmatics; (b) attachment and intimacy consequences; and (c) prospects for healing. We conclude that facilitating voluntary disclosure of infidelity, although difficult and demanding, represents the most ethical action with the best prospects for renewed and vital attachment intimacy.

Therapeutic risk management of clinical-legal dilemmas: should it be a core competency?

Therapeutic risk management of clinical-legal dilemmas achieves an optimal alignment between clinical competence and an understanding of legal concerns applicable to psychiatric practice. Understanding how psychiatry and law interact in frequently occurring clinical situations is essential for effective patient care. Successful management of clinical-legal dilemmas also avoids unnecessary, counterproductive defensive practices.

Environmental health research on hazards in the home and the duty to warn

When environmental health researchers study hazards in the home, they often discover information that may be relevant to protecting the health and safety of the research subjects and occupants. This article describes the ethical and legal basis for a duty to warn research subjects and occupants about hazards in the home and explores the extent of this duty. Investigators should inform research subjects and occupants about the results of tests conducted as part of the research protocol only if the information is likely to be accurate, reliable, and medically useful. Investigators should warn subjects and occupants about hazards they happen to discover while they are in the home, if a reasonable person would warn the subjects and occupants about those hazards. Investigators should not report illegal hazards discovered in the home to the authorities, unless those hazards constitute abuse or neglect of children or mentally disabled people living in the home. When investigators decide to warn research subjects and occupants about hazards in the home, they should take some steps to help them make effective use of this information, such as providing additional counselling or making a referral for remediation or medical treatment. Investigators should discuss these issues with research subjects during the informed consent process.

Routine third party disclosure of HIV results to identifiable sexual partners in Sub-Saharan Africa

The challenges of dealing with disclosure of HIV status cause frustration to health care providers and counselors. This frustration follows from the already known high risk to the third party on one hand and our ethical obligation to "respect persons" in terms of privacy and confidentiality on the other side. Given the stubbornly low rates of voluntary disclosure (partner notification) among couples, however, it is quite tempting to suggest a paradigm of routine third party disclosure to identifiable sexual partners by health care providers. This might be the lesser of the two evils and might give better public health outcomes in the fight against HIV/AIDS in Sub-Saharan Africa.

Patient autonomy and relatives' right to know genetic information

One of the most difficult issues doctors face is a conflict between their professional duties. Such a conflict may arise when doctors know that information has implications not only for patients but also for family members but their duty of confidentiality prevents them from disclosing it. A comparative analysis of English and Israeli medical law reveals that the doctors' duty is based on two principles: a liberal perception of patient autonomy and an overriding utilitarian principle of prevention of harm. However, socio-medical research indicates that these principles do not entirely reflect the views of patients and doctors and are too narrow to deal with the complex situations in practice. Thus, it is argued that the doctor's legal duty of confidentiality should be reconsidered and qualified when it concerns the family. It is suggested that if medical law seeks to recognize the various interests family members have in genetic information then we should consider a different approach, founded on a relational interpretation of autonomy and communitarian notions of solidarity and moral responsibility. This approach perceives confidentiality and privacy as embracing the family unit, based on the view that close relatives are not entirely outside the private sphere of the individual but rather are integral to his or her identity. Thus, to the utilitarian mechanism available in medical law this approach adds a social criterion: The effect any decision (to disclose or not to disclose) will have on the familial relationship and on the dynamics of the particular family. This will provide a more flexible and workable alternative for doctors to resolve familial tensions over access to genetic information.

The impaired hypothyroid patient: ethical considerations and obligations

OBJECTIVES

Analyze the ethical duties and dilemmas involved in treating the severely hypothyroid patient.

DESIGN

A critical review of the literature was conducted with respect to clinical ethics issues pertaining to severe hypothyroidism; legal and ethical guidelines for consent and capacity in the context of severe hypothyroidism; health case law involving the duty to warn third parties; and comparable clinical conditions resulting in impaired driving and the performance of critical tasks.

MAIN OUTCOME

Neuropsychological studies and accepted clinical experiences verify the variable degrees of intellectual and neurological impairment consequent to severe hypothyroidism. Thus, severely hypothyroid patients are considered impaired in the performance of specific tasks, such as driving. Consequent to that, they may be agents of harm as a result of their impairment if they are not warned against driving or performing other duties affecting public safety. Severely hypothyroid patients may lack the capacity to make an informed decision, even when warned against driving or other tasks, and some may ignore such warnings.

CONCLUSIONS

The legal and ethical "duty to warn" may trump confidentiality and HIPAA in cases where the activity of impaired patients seriously affects public safety. Not only do health care providers have a clear duty to warn patients not to drive, but in some extreme cases, may have a duty to warn third parties when a patient's driving or occupational duties place the public in harm's way.

Overview of psychiatric ethics IV: the method of casuistry

OBJECTIVE

The aim of this paper is to describe the method of ethical analysis known as casuistry and consider its merits as a basis of ethical deliberation in psychiatry.

CONCLUSIONS

Casuistry approximates the legal arguments of common law. It examines ethical dilemmas by adopting a taxonomic approach to 'paradigm' cases, using a technique akin to that of normative analogical reasoning. Casuistry offers a useful method in ethical reasoning through providing a practical means of evaluating the merits of a particular course of action in a particular clinical situation. As a method ethical moral reasoning in psychiatry, casuistry suffers from a paucity of paradigm cases and its failure to fully contextualize ethical dilemmas by relying on common morality theory as its basis.

Should healthcare providers have a duty to warn family members of individuals with an HNPCC-causing mutation? A survey of patients from the Ontario Familial Colon Cancer Registry

BACKGROUND

As genetic testing becomes more common and increasingly intertwined with medical care, the issues of genetic privacy and doctor-patient confidentiality are being examined. Hereditary non-polyposis colorectal cancer (HNPCC) is a genetic predisposition to colorectal and certain other cancers. Effective screening that can prevent colorectal cancer is an important incentive for genetic testing.

METHODS

A survey regarding the duty to warn family members of the risks associated with an HNPCC-causing mutation was mailed to 227 participants in the Ontario Familial Colon Cancer Registry (OFCCR). To our knowledge, the opinions of patients on this subject have not been reported previously in the literature. Responses were analysed quantitatively using the SAS system and qualitatively by the review of written comments.

RESULTS

Completed surveys were returned by 105 participants, with a response rate of 46.3%. The majority felt a personal responsibility to warn relatives, but there was no significant agreement that doctors or genetic counsellors should have a duty to warn relatives without a patient's permission.

CONCLUSIONS

Patients undergoing genetic testing for HNPCC generally understand that relatives could benefit from being informed of genetic risk, but may not be willing or able to inform each family member. Healthcare professionals should engage patients in a discussion of familial implications before genetic testing. An agreement should be formulated regarding which of the relatives should be informed. Patients should be encouraged to personally disseminate the information, given the unrealistic burden on practitioners to perform this task and patients' preference for control over the information.

Confidentiality in health care: conflicting legal and ethical issues

This article examines the circumstances in which dilemmas might arise between the need to maintain a patient's confidentiality and the need to disclose information. The author explains that nurses should be familiar with their professional code of conduct and keep up to date with any changes in the law to understand when it might be justified to override the duty of confidentiality.

[The limits of the physician's secrecy duty in risk situations. Special reference to genetics]

This work deals with those conflict situations that arise between the duty of secrecy by health professionals and the interest in safekeeping the life and physical integrity of third parties when dealing with behaviours by the patient, whether intentional or not, that could harm or place in danger those legal goods. The special situations of conflict that could arise in the ambit of genetic diagnosis are dealt as a special problem.

Confidentiality and duty to warn the third parties in HIV/AIDS context

Generally, physicians have a legal and ethical obligation of keeping confidentiality regarding their communications with patients. So, the most complicated ethical and legal questions arise when the HIV-infected person deliberately avoids to report to the interested individuals about the possibility of HIV transmission. The decisive factor, which emphasizes the need of such a discussion about confidentiality in HIV cases, is the character of the HIV: HIV is incurable, causes the danger of fatal outcome, discrimination etc. The aim of the paper is to explore the limits of confidentiality, as there is a duty to warn the third party about the danger of HIV transmission in that case on the part of the physician, even when the HIV-infected individual categorically refuses doing so. The paper analyses some specificities of confidentiality keeping in HIV pandemia, the responsibilities of a physician concerning the third party and his duty to warn him/her. Special attention is paid to those cases, when the fact of HIV infection has to be reported upon the patient's death or when the disclosure of the confidential information is connected with the possibility to start the post-exposure prophylactics. The paper presumes that confidentiality is not an absolute value, when there exists a real danger to the third party (e.g. a spouse, a care-taking relative, a victim).