Consent and confidentiality

Illustrative cases

Concerning duty to warn

The Tarasoff case

When making decisions between violating patient confidentiality and potential harm that may come to a third party or to society, the Tarasoff case is always mentioned. This incident occurred in the United States in 1969 when a university student told his psychologist that he intended to kill his girlfriend, Ms. Tarasoff. The psychologist and consultant psychiatrist asked the campus police to detain the student, but did not warn Ms. Tarasoff of the threat. Since the student appeared rational, he was released from custody and killed Ms. Tarasoff. In a subsequent ruling, the courts determined that the psychologist and other medical authorities were guilty of negligence in failing to warn the victim.

The fact that no similar cases, particularly in Canada, have achieved similar notoriety, indicates the rarity of such an event. Confidentiality is almost always upheld as the highest ethical principle. Nevertheless, physicians always think of the Tarasoff case as an example of the tragic results of making a wrong decision.

HIV/AIDS and the duty to warn

Another example concerning duty to warn is that of people with HIV/AIDS. Controversy has arisen over the issue of HIV positive individuals continuing to engage in unprotected and consensual sex with partners unaware of their status. From the medical standpoint, HIV/AIDS is a reportable disease. It is incumbent upon physicians to counsel patients to discuss their HIV status with their sexual partners, even if they are practicing safer sex.

As well, physicians should inform their patients that they could face legal consequences should they fail to inform their sexual partners of their status. It is important to note that in most jurisdictions, rape or assault are dealt with through legal means, although even in those cases there are differences of opinion. In some jurisdictions, individuals can be charged with sexual assault for having unprotected sex without informing their partner, even when the sex is consensual.

Concerning informed consent

The case of Reibl v. Hughes

This Canadian case from 1980 is the most frequently cited example of the standard of disclosure required of Canadian physicians. This case went all the way to the Supreme Court and took 10 years.

Mr. Reibl, a 44 year old man, had migraine headaches and was found to have significant occlusion of his left carotid artery. Dr. Hughes recommended surgery and was subsequently found negligent due to failure to inform Mr. Reibl of all material risks. Specifically, Mr. Reibl did not understand: a) that the headaches and carotid disease were unrelated; b) the relative risks of stroke with and without surgery and, most importantly; c) that the surgery was elective as there was no immediate increased risk of stroke.

Mr. Reibl had the surgery and suffered a massive post-operative stroke, leaving him paralyzed and unable to work. He successfully sued the neurosurgeon, stating that had he been fully informed, he would have deferred the surgery until his pension was activated in 18 months. In his ruling, Chief Justice Laskin noted that all material risks must be disclosed and that those include circumstances relevant to the particular patient.

This decision made it necessary for physicians undertaking the consent process to know of any unique or particular circumstances of a patient that is relevant to the procedure under discussion.

CPSO v. Dr. B.

This case illustrates a number of the topics we have discussed: truth-telling, paternalism, respect for persons and knowing one’s limits of expertise.

Dr. B. was a respected family physician, well known locally and nationally for his service to the profession. He treated the patient in question for 25 years for anxiety, depression and severe ischaemic heart disease. The patient had had a number of surgical procedures, and in 1989, Dr. B. was informed that the patient had received a transfusion with blood from an individual later found to be HIV positive. Dr. B. discussed the issue with other physicians and decided not to inform the patient. HIV testing was not done because consent was not requested. Dr. B. made this decision because:

  • He felt that, due to the patient’s emotional fragility, he might either harm himself or suffer a cardiac event if he were told.
  • He thought that the patient was not engaging in sexual activity with his wife, and in fact, that he was impotent.
  • He understood that there was no effective treatment for asymptomatic HIV infection.

The patient died in 1990. Just prior to death, he was tested at the insistence of his family and was found to be HIV positive. His wife also tested positive in 1990 and subsequently died of AIDS, after having brought a complaint before the College of Physicians and Surgeons of Canada.

During the disciplinary hearing, it became clear that all three of Dr. B.’s assumptions were incorrect. The Disciplinary Committee determined that Dr. B. had acted in an inappropriately paternalistic manner, showing lack of respect for both the patient and his family in not disclosing important information. This was not an example of ethical use of therapeutic privilege. Further, Dr. B. had failed to maintain the standard of practice in failing to consult an HIV expert in a rapidly changing field of knowledge.

Dr. B. was convicted of unprofessional conduct and failure to maintain standard of practice.


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