To breach or not to breach conﬁdentiality…
Reprinted from "Suicide" issue of Visions Journal, 2005, 2 (7), p. 10-11
There are few things that strike us as more tragic than suicide. We tend to regard suicide as a failure on the part of society to help the suicidal individual. We are especially upset when we ﬁnd out it was known beforehand that the person was suicidal, but next-of-kin or signiﬁcant others were not informed. We also tend to view suicide as irrational—a desperate emotional reaction to what are perceived as overwhelming personal circumstances—and we believe that if someone else had known about the situation, they could have intervened and saved the person from an untimely death.
In ethics and law
Both ethics and law, however, suggest there are no simple solutions to the dilemma of breaching conﬁdentiality.
The law against suicide was repealed in 1972. There were several reasons for this: 1) it was essentially unenforceable; and 2) in law, everyone has the right to decide what shall happen to themselves, as long as they are competent—which, minimally, means that the person understands the nature and implications of her or his actions and is not under undue pressure from others—and their actions do not interfere with the equal and competing rights of others. The law, moreover, recognizes that each person, as an autonomous decisionmaker, is surrounded by a sphere of privacy that may be breached only under exceptional circumstances.
As to ethics, it has two basic principles: 1) autonomy and respect for persons, which says that everyone has the right to self-determination; and 2) equality and justice, which says that all persons are equal and their rights should be equally protected. This means that in ethics, if someone competently decides to die, then no one has the right to interfere. And, if that person decides that no one should be told about it, then this wish must be respected.
Therefore, both in ethics and law, a competent person has the right to commit suicide, and has the right to insist that their intention be kept conﬁdential. This begs the question whether suicide is ever the result of a competent decision. Arguably, suicide does not automatically indicate incompetence. In the Sue Rodriguez case, when she was assessed for competence at the beginning of her campaign to have Section 241(b) of the Criminal Code (the section that criminalizes assisted suicide) repealed, the psychiatrist concluded that she was competent even though she had “suicidal ideations.
On the other hand, a young man who commits suicide in a ﬁt of clinical depression when off his medications would be considered incompetent. And an incompetent person’s intention to commit suicide clearly calls for an engagement of the appropriate mental health services, and does not warrant professional conﬁdentiality.
Suicide, however, rarely presents with clean conceptual lines of competence, rights and principles. It involves actual people who are embedded in social contexts that include family, friends and health care professionals. All these people have their own feelings and commitments, and they may be torn in opposing directions. While conceptually they may subscribe to the principles of autonomy and equality, and while intellectually they may believe in the rights to privacy and self-determination, when it comes to their own signiﬁcant others, these convictions often become abstract notions. Competence and rights don’t enter the picture. The desire to help a loved one predominates.
Even health care professionals do not focus simply on issues like competence and rights; they are conﬂicted by a variety of considerations. To begin with, it is very difﬁcult—even as a trained professional—to suspend one’s own feelings when facing a suicidal person. While professional training teaches one how to guard against being swayed by personal feeling, it does not remove the feelings themselves.
Second, there have been fundamental changes in the philosophy of health care. To be sure, medicine, as it has developed in the West since Imhotep in ancient Egypt (around 2980–2950 BC),2 has long imposed a duty of conﬁdentiality on its practitioners. This duty was explicitly incorporated into the Hippocratic Oath (Greece, 4th century BC) and required that conﬁdentiality not be breached—except, it allowed conﬁdentiality to be breached if the physician decided it was in the best interests of the patient. This best-interests-of-thepatient exception, however, was modiﬁed in the 20th century by the advent of an autonomy-centred model of the physician–patient relationship, which makes the patient and not the physician the arbiter of what is in the patient’s best interests. The autonomy-centred model—which is reﬂected in current codes of ethics and is supported by contemporary law—requires that physicians follow the directions of their competent patients even if that should contravene what the physician thinks is in the patient’s best interests. Not all physicians have fully accepted this autonomy-centred model— codes and laws notwithstanding.
At the same time, there is also a powerful contemporary counter-current to the autonomy-centred model of the physician–patient relationship: a current that is represented most clearly by family medicine. Here, practitioners are trained to look beyond the individual patient and to include family and signiﬁcant others in the circle of considerations. It promotes, so to speak, breaches of conﬁdentiality, because family and signiﬁcant others cannot meaningfully be included in the decision-making process unless they are privy to patient information.
As if this were not enough, there is also the question of uncertainty. When people present with suicidal tendencies, the clinical picture is not always immediately clear, the complete facts are not always available then and there, and not all the players can be identiﬁed at that instant. The professional, however, has very little time to achieve clarity (and certainty) before it is too late. Should the professional wait and clarify the situation before taking any action, or should the professional breach privacy on the assumption that this is necessary to save a life?
Finally, in the back of any professional’s mind is always the question of how their actions will sit with their professional peer group and the law. And there is always the nagging doubt about how other patients, or potential patients, would feel if they knew that their conﬁdential communications might be passed on to third parties. What might the consequences be if that element of trust, which is central to the professional– patient relationship, was undermined in this way.
Always a judgement call
A professional decision about breaching conﬁdentiality is always a judgement call. Such a judgement call should not be rooted in personal feelings, nor should it be based on a knee-jerk application of clinical concepts, abstract rules and legal concerns. It should be clinically competent, and it should acknowledge the regulatory context.
The judgement call should also be guided by a clear understanding of the ethics of the case. This means that, in some cases, it will be determined that privacy should be breached; and in other cases, that it should not. In some cases, where privacy is not breached because the patient has competently requested that conﬁdentiality be maintained, suicide may occur—and that is tragic. However, as in this instance, not everything that is tragic is unethical.
Codes, principles and laws can only give general guidance. Each situation is unique and has to be evaluated on its own terms. And there are no easy answers.
About the Author
Eike-Henner teaches biomedical ethics at the University of Victoria. He was the founding director of the Canadian Medical Association’s department of Ethics and Legal Affairs and the ﬁrst expert witness in medical ethics recognized by Canadian courts. He has published widely in biomedical ethics and was the ethics consultant in the Sue Rodriguez assisted suicide case
Rodriguez v. British Columbia (Attorney General,)  3 S.C.R. 519.
Imhotep was the ﬁrst physician of note in the history of medicine.