Rights and duties of genetic counsellors in Germany related to relatives at risk: comparative thoughts on the German Genetic Diagnostics Act

Genetic testing has familial implications. Counsellors find themselves in (moral) conflict between medical confidentiality (towards the patient) and a potential right or even duty to warn at-risk relatives. Legal regulations vary between countries. English literature about German law is scarce. We reviewed the literature of relevant legal cases, focussing on German law, according to the Preferred Reporting Items for Systematic Reviews and Meta-Analyses guidelines. This article aims to familiarise counsellors with their responsibilities, compare the situation between countries and point out legally unresolved areas.According to the German Genetic Diagnostics Act (Gendiagnostikgesetz) in case of an 'avoidable or treatable' genetic disorder, geneticists ought to confine themselves to the obligated advice to the patient. Whether a breach of the duty of confidentiality can be justified in exceptional cases by 'necessity as justification' for actively informing relatives at risk remains legally unclear. In case of a 'neither avoidable nor treatable' genetic disease, geneticists should also refrain from actively informing relatives as the justifiable state of emergency does not permit to break the duty of confidentiality.

Familial genetic risks: how can we better navigate patient confidentiality and appropriate risk disclosure to relatives?

This article investigates a high-profile and ongoing dilemma for healthcare professionals (HCPs), namely whether the existence of a (legal) duty of care to genetic relatives of a patient is a help or a hindrance in deciding what to do in cases where a patient's genetic information may have relevance to the health of the patient's family members. The English case ABC v St George's Healthcare NHS Trust and others considered if a duty of confidentiality owed to the patient and a putative duty of care to the patient's close relatives could coexist in this context. This article examines whether embracing the concept of coexisting duties could enable HCPs to respect duties in line with their clinical judgement, thereby providing legal support and clarity to professionals to allow them to provide the best possible genetics service to both the patient and their family. We argue that these dual duties, framed as a novel, composite duty to consider the interests of genetic relatives, could allow HCPs to exercise and act on their professional judgements about the relative value of information to family members, without fears of liability for negligence or breach of confidence.

Confidentiality in medicine: how far should doctors prioritise the confidentiality of the individual they are treating?

There is a premium placed on the maintenance of our privacy and confidentiality as individuals in society. For a productive and functional doctor-patient relationship, there needs to be a belief that details divulged in confidence to the doctor will be kept confidential and not disclosed to the wider public. However, where the information disclosed to the doctor could have implications for the safety of the wider public, for example disclosures with potential criminal implications, or have serious consequences for another individual, as is the case in genetic medicine, should doctors feel confident about breaching confidentiality? This essay firstly explores the legal rulings regarding cases in which confidentiality has been breached where there was risk of significant harm to others following the patient's disclosure, and secondly, focusing on the evolving legal position with regard to confidentiality in contexts where information sharing would be beneficial to others, for example the evolving case of the implications of genetic diagnosis on families (eg, ABC v St George's Healthcare NHS Trust; 2017).

Montgomery, informed consent and causation of harm: lessons from Australia or a uniquely English approach to patient autonomy?

The UK Supreme Court in Montgomery v Lanarkshire Health Board adopts an approach to information disclosure in connection with clinical treatment that moves away from medical paternalism towards a more patient-centred approach. In doing so, it reinforces the protection afforded to informed consent and autonomous patient decision making under the law of negligence. However, some commentators have expressed a concern that the widening of the healthcare providers' duty of disclosure may provide impetus, in future cases, for courts to adopt a more rigorous approach to the application of causation principles. The aim would be to limit liability but, in turn, it would also limit autonomy protection. Such a restrictive approach has recently been adopted in Australia as a result of the High Court decision in Wallace v Kam This paper considers whether such an approach is likely under English negligence law and discusses case law from both jurisdictions in order to provide a point of comparison from which to scope the post-Montgomery future.

A challenge to unqualified medical confidentiality

Medical personnel sometimes face a seeming conflict between a duty to respect patient confidentiality and a duty to warn or protect endangered third parties. The conventional answer to dilemmas of this sort is that, in certain circumstances, medical professionals have an obligation to breach confidentiality. Kenneth Kipnis has argued, however, that the conventional wisdom on the nature of medical confidentiality is mistaken. Kipnis argues that the obligation to respect patient confidentiality is unqualified or absolute, since unqualified policies can save more lives in the long run. In this paper, I identify the form of Kipnis's argument and present a challenge to it. I conclude that, as matters stand now, a qualified confidentiality policy is the more rational choice.

Pragmatic Tools for Sharing Genomic Research Results with the Relatives of Living and Deceased Research Participants

Returning genomic research results to family members raises complex questions. Genomic research on life-limiting conditions such as cancer, and research involving storage and reanalysis of data and specimens long into the future, makes these questions pressing. This author group, funded by an NIH grant, published consensus recommendations presenting a framework. This follow-up paper offers concrete guidance and tools for implementation. The group collected and analyzed relevant documents and guidance, including tools from the Clinical Sequencing Exploratory Research (CSER) Consortium. The authors then negotiated a consensus toolkit of processes and documents. That toolkit offers sample consent and notification documents plus decision flow-charts to address return of results to family of living and deceased participants, in adult and pediatric research. Core concerns are eliciting participant preferences on sharing results with family and on choice of a representative to make decisions about sharing after participant death.

Positive HIV Test Results from Deceased Organ Donors: Should We Disclose to Next of Kin?

In the context of deceased organ donation, donors are routinely tested for HIV, to check for suitability for organ donation. This article examines whether a donor's HIV status should be disclosed to the donor's next of kin. On the one hand, confidentiality requires that sensitive information not be disclosed, and a duty to respect confidentiality may persist after death. On the other hand, breaching confidentiality may benefit third parties at risk of having been infected by the organ donor, as it may permit them to be tested for HIV and seek treatment in case of positive results. We conclude that the duty to warn third parties surpasses the duty to respect confidentiality. However, in order to minimize risks linked to the breach of confidentiality, information should be restrained to only concerned third parties, that is, those susceptible to having been infected by the donor.

Posthumous HIV Disclosure and Relational Rupture

In response to Anne L. Dalle Ave and David M. Shaw, we agree with their general argument but emphasize a moral risk of HIV disclosure in deceased donation cases: the risk of relational rupture. Because of the importance that close relationships have to our sense of self and our life plans, this kind of rupture can have long-ranging implications for surviving loved ones. Moreover, the now-deceased individual cannot participate in any relational mending. Our analysis reveals the hefty moral costs that disclosure can bring, which should influence what information is given to would-be donors and how organ procurement coordinators approach these conversations.

Shopping for a Transplant: When Noncompliant Patients Seek Wait Listing at Multiple Hospitals

United Network for Organ Sharing policy allows patients to be listed for a transplant at multiple hospitals. This strategy can sometimes lessen the transplant waiting time for patients because waiting times vary geographically. We explore the ethical dilemma of “shopping for a transplant” by presenting the case of a patient with an addictive disorder who was listed for liver transplantation at one hospital on the east coast of the United States and was seeking listing at 2 additional hospitals in midwestern United States, when marijuana use was suspected by 1 of the latter 2 facilities. Although the transplant team at this facility deferred listing the patient, the team's bioethicist posed the concept of a duty to notify the facility where the patient was already listed for transplantation about any confirmed substance abuse, in an effort to prevent a scarce resource from being allocated to an individual who is noncompliant.

Ethical Obligations in the Face of Dilemmas Concerning Patient Privacy and Public Interests: The Sasebo Schoolgirl Murder Case

A murder case that had some features in common with the Tarasoff case occurred in Sasebo City, Japan, in 2014. A 15-year-old high school girl was murdered and her 16-year-old classmate was arrested on suspicion of homicide. One and a half months before the murder, a psychiatrist who had been examining the girl called a prefectural child consultation centre to warn that she might commit murder, but he did not reveal her name, considering it his professional duty to keep it confidential. Article 134 of the Japanese Criminal Law states that doctors should not disclose patient information obtained in clinical practice without a legitimate reason, but the Japanese Supreme Court has not specified what constitutes a legitimate reason. Mass media and commentators suggested that the murder could have been prevented if the psychiatrist had disclosed the girl's name to the authorities or had isolated her coercively in a psychiatric ward. However, the authors disagree with such claims. This article discusses obligations imposed on concerned individuals and third party members in cases involving ethical dilemmas regarding patient confidentiality and information disclosure. It is concluded that everyone should fulfill their obligations to prevent such tragedies and one should judge the appropriateness of others' actions based not on the consequences of their actions, but on the processes used to decide on a course of action and their commitment. It is necessary for us to establish a society in which concerned parties can do what they think is ethically best without fearing ungrounded charges.

The Double Helix: Applying an Ethic of Care to the Duty to Warn Genetic Relatives of Genetic Information

Genetic testing reveals information about a patient's health status and predictions about the patient's future wellness, while also potentially disclosing health information relevant to other family members. With the increasing availability and affordability of genetic testing and the integration of genetics into mainstream medicine, the importance of clarifying the scope of confidentiality and the rules regarding disclosure of genetic findings to genetic relatives is prime. The United Nations International Declaration on Human Genetic Data urges an appreciation for principles of equality, justice, solidarity and responsibility in the context of genetic testing, including a commitment to honoring the privacy and security of the person tested. Considering this global mandate and recent professional statements in the context of a legal amendment to patient privacy policies in Australia, a fresh scrutiny of the legal history of a physician's duty to warn is warranted. This article inquiries whether there may be anything ethically or socially amiss with a potential future recommendation for health professionals or patients to universally disclose particular cancer predisposition genetic diagnosis to genetic family members. While much of the discussion remains applicable to all genetic diagnosis, the article focuses on the practice of disclosure within the context of BRCA1/2 diagnosis. An 'ethic of care' interpretation of legal tradition and current practice will serve to reconcile law and medical policy on the issue of physician disclosure of genetic results to family members without patient consent.

The changing paradigm of the doctor-patient relationship: Montgomery v Lanarkshire Health Board and developments in the 'duty to warn'

The standard of risk disclosure required in New Zealand and the UK has differed until recently. Medical practitioners who perform treatment without adequate disclosure run the risk of violating patients' rights, and fail to practice at the high level reasonably expected of them. Before Montgomery v Lanarkshire Health Board, it was the case in the UK that a practitioner need not disclose a particular risk of treatment if a qualified body of medical opinion would also not have disclosed that risk. In this viewpoint, we examine the change brought about by Montgomery, and its implications for New Zealand practitioners.

Collectivizing rescue obligations in bioethics

Bioethicists invoke a duty to rescue in a wide range of cases. Indeed, arguably, there exists an entire medical paradigm whereby vast numbers of medical encounters are treated as rescue cases. The intuitive power of the rescue paradigm is considerable, but much of this power stems from the problematic way that rescue cases are conceptualized-namely, as random, unanticipated, unavoidable, interpersonal events for which context is irrelevant and beneficence is the paramount value. In this article, I critique the basic assumptions of the rescue paradigm, reframe the ethical landscape in which rescue obligations are understood, and defend the necessity and value of a wider social and institutional view. Along the way, I move back and forth between ethical theory and a concrete case where the duty to rescue has been problematically applied: the purported duty to regularly return incidental findings and individual research results in genomic and genetic research.

The Right Not to Know and the Duty to Tell: The Case of Relatives

Obtaining and sharing genetic information when there is a potential conflict of interest between patients and their relatives give rise to two questions. Do we have a duty to find out our genetic predispositions for disease for the sake of our relatives, or do we have a right to remain ignorant? Do we have a duty to disclose our known genetic predispositions for disease to our relatives? I argue that the answer to both questions is yes, but to a lesser extent than sometimes claimed.

"Obligated aliens": recognizing sperm donors' ethical obligation to disclose genetic information

Sperm donors' obligations are typically constrained to the immediate circumstances surrounding the donation and to its time frame. This paper makes the case for recognizing an ongoing ethical obligation that binds sperm donors to disclose, in a timely manner, meaningful genetic information to recipients and donor-conceived children. The paper delineates and conceptualizes the suggested (potentially reciprocal) duty and argues that it is not the genetic link between the donor and the donor-conceived child that binds donors by said duty, but rather social responsibility. Accordingly, an original perception of the donor as an obligated alien is suggested and developed. The main thesis of the paper is supported inter alia by a comparison between transmitting infectious diseases and passing faulty genes on to donor-conceived children. The paper also provides an in-depth analysis of the conflicting interests of the parties generated by such an obligation and proposes a model for embedding this ethical duty in a (legal) contractual framework.

The ethics of contacting family members of a subject in a genetic research study to return results for an autosomal dominant syndrome

This case explores the ethical landscape around recontacting a subject's relatives to return genetic research results when the informed consent form signed by the original cohort of subjects is silent on whether investigators may share new information with the research subject's family. As a result of rapid advances in genetic technology, methods to identify genetic markers can mature during the life course of a study. In this case, the investigators identified the genetic mutation responsible for the disorder after a number of their original subjects had died. The researchers now have the ability to inform relatives of the subject about their risk of developing the same disease. Mark Rothstein, JD, from the University of Louisville School of Medicine, provides an overview of the medical/scientific, legal, and ethical issues underlying this case. Lauren Milner, PhD, and colleagues at Stanford University explore how the relationship between researcher and subject affect this debate. Seema Shah, JD, and colleagues at the National Institutes of Health and University of California, Los Angeles (UCLA) discuss whether and how requirements of the duty to warn are applicable in this case.

Medical confidentiality and partner notification in cases of sexually transmissible infections in Belgium

Research has shown that HIV-positive patients sometimes refuse to take precautionary measures against sexual transmission as well as to notify their sexual partner(s) of their status. Faced with such a situation, physicians find themselves in a dilemma as they are forced to choose between honouring their duty of professional confidentiality and protecting their patients' partner(s). Recent advice from the Belgian Medical Council (BMC) for the first time accepts that physicians can exceptionally, and under certain conditions, invoke necessity to breach confidentiality and inform usual and occasional sexual partners of HIV-infected patients who refuse to take precautions against transmission. This article sketches the ethical evolution of this position from 1987 up to now in Belgium, and examines whether or not the BMC's opinion on the matter corresponds to the applicable substantive criminal law provisions and whether or not partner notification could also be defended for other sexually transmissible infections (STIs). A case study of the situation in Belgium illustrates how discussions about STIs can deeply influence the evolution of legal and ethical rules about medical confidentiality.

Surgeon-patient information disclosure practices in southwestern Nigeria

OBJECTIVE

This study examined the practice of information disclosure to patients by surgeons in Nigeria.

SUBJECTS AND METHODS

A 55-item self-administered semi-structured questionnaire was sent to 150 surgeons in southwestern Nigeria in 2004-2005. The data obtained from the completed questionnaire were analyzed using descriptive statistics.

RESULTS

Of the 150 surgeons, 102 completed the questionnaire, giving a response rate of 68.0%. Of these 102, 85 (85.3%) were men, 44 (43.1%) were consultants and 55 (54.0%) were senior and junior surgical trainees. Most were from surgical subspecialties and obstetrics and gynecology. A documented policy statement about information disclosure was not available in most hospitals. A third, i.e. 35 (34.3%), of the surgeons did not routinely engage patients in discussions about disease diagnosis, management and prognosis. Most, i.e. 73 (71.6%), would rather disclose worsening disease progression to the patient's spouse. Others would disclose such information to the patient's children, family members or clergy. This was presumably to shield the patient from psychological distress. Only 22 (21.6%) of them routinely disclose operative findings to patients or their families. Thirty (29.4%) of them had been involved in disclosing medical errors to their patients in the past while 63 (61.8%) respondents did not know if surgical errors with potentially negative consequences should be disclosed.

CONCLUSION

Most of the surgeons in southwestern Nigeria did not routinely provide detailed information to patients about their illness and possible outcome of illness even in the presence of worsening disease progression and prognosis. When surgical errors with potential negative consequences occurred, the majority did not know if such errors should be disclosed.

Tarasoff duties in prisons: community standards with certain twists

Because inmates' actions are restricted by incarceration, Tarasoff duties in prisons have certain unique aspects. There are two broad situations: (1) when the potential victim is located within the prison community; and (2) when the potential victim is located outside of prison. Although responsibilities vary widely from state to state, this paper discusses general principles of exercising Tarasoff duties in prison settings. In addition to duties to protect potential victims, correctional mental-health professionals have an ethical duty to protect patient confidentiality. Professionals should chose Tarasoff options that protect confidentiality to the fullest extent possible, and prisoners should be informed of situations where confidentiality does not exist. A caveat is that no Tarasoff statutes can be relied upon to offer tort protection to correctional clinicians until they have been tested in appellate courts.

HIV diagnosis disclosure: stigma management and stigma resistance

This article reports diagnosis disclosure decision comments arising serendipitously in five focus group discussions with 34 HIV-infected New Yorkers over age 50. Three overarching disclosure themes demonstrate the complexity of diagnosis disclosure decision-making: (a) hiding or selectively disclosing, or stigma management; (b) partial disclosure because of the perception of partial control of the information; and (c) widespread or complete voluntary diagnosis disclosure, representing stigma resistance. Social workers and other human services practitioners should remember the diversity in the HIV population, the aging population, and the HIV-positive aging population. Experiences of HIV stigma and choices about diagnosis disclosure and stigma management or resistance are individual, reciprocal, and dynamic.

Stem cell tourism and doctors' duties to minors--a view from Canada

While the clinical promise of much stem cell research remains largely theoretical, patients are nonetheless pursuing unproven stem cell therapies in jurisdictions around the world--a phenomenon referred to as "stem cell tourism." These treatments are generally advertised on a direct-to-consumer basis via the Internet. Research shows portrayals of stem cell medicine on such websites are overly optimistic and the claims made are unsubstantiated by published evidence. However, anecdotal evidence suggests that parents are pursuing these "treatments" for their children, despite potential physical and financial risk. Physicians are in a unique position as they can be expected to be involved in, or privy to, such decisions. In this paper, we consider what duties physicians may have toward minor patients whose parents/guardians wish to engage in stem cell tourism on their behalf. We use the Canadian perspective to address the broadly relevant issues raised by this trend.