Mr. P, age 52 years, had experienced depression and insomnia for a month. He told his clinician that the symptoms were initially triggered by his gambling habits, which had cost him his job, his home, and all of his savings. Mr. P noted that he had also been having marital difficulties and that his wife of 12 years had recently moved out. He presented with anhedonia, loss of appetite, and feelings of guilt. He reported no suicidal or homicidal thoughts. The patient’s past medical history was significant for alcohol abuse 15 years earlier, but his current alcohol use was limited to two drinks per week.
Mr. P expressed disappointment in himself and requested medication for depression. He had recently joined Gambler’s Anonymous on the advice of a counselor and wanted to show his family that he was making an effort to put his life back on track.
Further discussion regarding the patient’s relationship with his wife led to Mr. P’s confessing, “I forced her to have sex with me” after a recent altercation. The incident occurred after he discovered that his wife was having an extramarital affair. Mr. P further explained that he was arrested and issued a restraining order after admitting to the assault. He promised his clinician that he had no plans to violate his restraining order or harm anyone further—including himself.
The ethical dilemma presented by Mr. P’s case can be viewed from multiple angles. From the standpoint of the attending clinician, should patient confessions become a verbatim and discoverable part of the medical record? Is a verbatim confession pertinent to the medical care of the patient and therefore necessary for a complete medical record? How will the medical record be used as a legal document that may possibly incriminate the patient? Knowing that the confession is discoverable, is documentation of a verbatim confession a breach of clinician-patient confidentiality? Does the clinician have a responsibility to document a verbatim confession? If the patient has not confessed to the police, does the clinician have a responsibility to share his confession despite the fact that the patient promised there was no plan to harm?
Looking at it from the victim’s perspective, should the patient’s confession be made public record? Should the confession be used to prosecute the patient? Should the attending clinician, under a duty to warn, have contacted the police and the victim?
From the patient’s perspective, Mr. P has confessed and expressed remorse for his actions. He is attempting to make amends and recover from this problem as well as his gambling addiction. He trusted that the conversations with his clinician were truly privileged, so he was completely honest. The patient went to his clinician for help, trusting that the clinician would treat him with empathy and remain nonjudgmental. Mr. P believed the clinician would treat him regardless of his or her personal feelings about the crime.
From the legal perspective, are conversations between a patient and his or her clinician truly privileged?
In the past, American culture has struggled with defining nonconsensual intercourse between a husband and wife as rape. Not all cultures support this view. What role does culture play in defining Mr. P’s act as criminal?
With regard to the office visit, an encounter such as this must be documented and a course of action decided. The clinician in this case consulted the available ethical and legal resources and decided to document a standard Subjective, Objective, Assesment, and Plan note that contained the verbatim confession of the patient.
Every medical student learns of the clinician’s obligation to maintain patient confidentiality. This is a tenet of patient care and has been taught for millennia. As noted in the Oath of Hippocrates, “Whatsoever in the course of practice I see or hear, or even outside my practice in social intercourse, that ought never to be published abroad, I will not divulge, but consider such things to be holy secrets.”
The irony of this case is that the honesty and trust Mr. P put in his clinician could now be used as evidence against him. Obviously, clinician-patient confidentiality has limits. According to the AMA, certain boundaries exist. As the AMA states, “The obligation to safeguard patient confidences is subject to certain exceptions, which are ethically and legally justified because of overriding social considerations. When patients pose threats of harm to specific third parties or to the public health, physicians may have a duty to breach confidentiality. These threats can take a variety of forms, including intended violent acts as well as irresponsible or malicious actions arising from the patient’s medical condition.”1
Montauk and Morrison wrote, “In most U.S. jurisdictions, clinicians must report injuries resulting from certain crimes despite the inherent stresses on doctor-patient confidentiality. For instance, California law requires that doctors report injuries resulting from suspected child, elder, or domestic abuse; firearms and hand weapons; or other criminal activity.”2
Clinicians must be aware of the sensitivity that surrounds domestic violence. It is vital to gather the correct information and ensure the victim is given a safe haven. To access local resources for domestic violence, contact the National Domestic Violence Hotline at 800.799.SAFE (www.ndvh.org).
Depending on the state in which you are practicing, reporting policies may be a judgment call. If an individual is in immediate danger, the onus to report and break confidentiality is placed on the provider.
Mr. P’s clinician behaved appropriately by completing a verbatim documentation of his confession. The documentation supported making the diagnosis of major depressive disorder and upheld a duty to protect society as well.
Mr. P has been seen for follow-up over the past several years. He has settled his marital, personal, and legal issues. He is working, refrains from gambling, and takes no medications.
Dr. Zipp is assistant professor in the Department of Family Medicine, UMDNJ School of Osteopathic Medicine, Stratford, N.J., where Dr. Ciervo is chairman and associate professor.
1. American Medical Association Council on Ethical and Judicial Affairs. Opinion 5.05. Confidentiality. In: Code of Medical Ethics: Current Opinions with Annotations, 2004–2005 Edition. Chicago, Ill.: AMA Press; 2004:129-130.
2. Montauk L, Morrison VL. Crime, confidentiality, and clinical judgment. Lancet. 2004;364 Suppl 1:s46-47.