By: Athena Beldecos and Robert M. Arnold
Athena Beldecos is a graduate student in medical ethics in the Department of History and Philosophy of Science, University of Pittsburgh.
Robert M. Arnold, MD is an Assistant Professor of Medicine, and the Associate Director for Education, Center for Medical Ethics, University of Pittsburgh.
In their article, “Confidentiality in the Age of AIDS,” Martin L. Smith and Kevin P. Martin present a complex case in clinical ethics. Their analysis examines a physician’s quandary when treating a mentally incompetent HIV-positive patient: whether to uphold physician-patient confidentiality or to violate this confidentiality by warning a third party. Out critique focuses on the way the problem is conceptualized and the analytic methods used to resolve the case, rather than on the solution itself. We believe that several problems in the authors’ analysis arise from a misinterpretation of the casuistic method. Furthermore, we argue that Smith and Martin present a case that is insufficiently detailed, thereby precluding the identification of all of the moral problems in the case and the development of creature solutions to the problem(s) identified. We note several reasons why there is a need to gather more information prior to determining the appropriate ethical response. Finally, we suggest ways in which similar problems in clinical ethics might be avoided in the future.
IS THIS CASUISTRY?
The authors conceive of their “process of ethical analysis and decision making” as a “type of casuistry.” Although we agree that casuistry, as outlined by A.R. Josen,1 is a potentially fruitful technique for practical ethical decision making, we believe that certain essential feature of such casuistic reasoning are not clearly present in Smith and Martin’s analysis.
The power and scope of casuistry are derived not only from attention to details and careful identification of circumstances in the presentation of individual cases, but – more importantly – from the process of case comparison. Using this method, a case under moral consideration is situated in a family of related cases, whereby the casuist examines the similarities and differences between the cases at hand. The context of an individual case and how its conflicting maxims appear within that particular context are the raw materials of the case-comparison method. The relative weight of conflicting maxims in an individual case is ascertained by comparison to analogous cases. With casuistry, moral judgement does not involve a more traditional retreat to the weighing of conflicting duties or general principles. Rather, moral guidance is provided by an ever-growing body of paradigm cases that represent unambiguous instances in which moral consensus is easily obtained. It is crucial that the casuist place the case under consideration in its proper taxonomic context(s) and that she or he identify the most appropriate paradigm, whether it be real or hypothetical.
The authors do identify a paradigm case, but their analysis departs from casuistry on several interrelated points. The authors do not proceed by analogical reasoning. Had they done so, they might have discovered that their chosen paradigm is inappropriate, due to significant dissimilarities with Seth's case. Finally, their insufficiently detailed case precludes a thorough measurement of the similarities and differences between the cases at hand. For it is in the details that an individual case may differ from a paradigm case.
The authors’ analytic method has more in common with principle-based ethics2 than casuistry. They do not use a variety of similarly situated cases to point out and balance the relevant moral maxims instead, they extract the conflicting duties and principles from their paradigm, the Tarasoff case,3 and apply them directly to Seth’s case. The authors weigh one prima facie duty “against another to arrive at an ethically supportable solution.” Furthermore, the weighing takes place “only in the context of the given case.” Thus, case comparison, an intrinsic element of casuistry, is not performed. Instead, the authors’ major goal seems to be finding and applying a sufficiently modified principle regarding confidentiality to resolve the case at hand.
WHY TARASOFF IS PROBLEMATIC AS A PARADIGM CASE
By using Tarasoff as a paradigm case in their analysis, Smith and Martin situate their case in the family of “duty-to-warn” (prevention-of-harm) cases. It is reasonable that they identify this particular taxonomy as a starting point for their analysis. However, they do not test the appropriateness of the paradigm by systematically comparing and contrasting it with Seth’s case. The authors note the uniqueness of the circumstances of the Tarasoff case and its limited applicability but nonetheless proceed to use it as a paradigm. Casuistry, however, seeks closest-match paradigms. The use of analogical reasoning would have illuminated the similarities and differences between the two cases and would have helped the authors to determine which morally relevant features a paradigm case should minimally share with its analogous cases.
In the Tarasoff case, the court held that a psychotherapist, to whom a patient had confided a murderous intent, had a duty to protect the intended victim from harm.4 This duty includes warning the third party at risk, among other interventions. The unique circumstances of Tarasoffinclude the imminence of fatal harm to an identified, yet unsuspecting, individual. Although the authors are correct in noting the precedent-setting value of Tarasoff, the dissimilarities between Tarasoff and Seth’s case are so numerous as to suggest the selection of another paradigm.
First, a critical aspect in Tarasoff is the prevention of future fatal harm. Based on the circumstances of the case, there is no evidence of preventable fatal harm to Maxwell. For this condition to be satisfied, the psychiatrist would have to be assured of Maxwell’s seronegativity and have evidence of a current or an intended sexual relationship between Maxwell and Seth. The preventable harm to Maxwell consists of not allowing him the opportunity to institute early anti-viral therapy or to reconsider his life goals in the face of a fatal disease. A casuist would need to assess, using a series of cases, the moral difference between the fatal harm in Tarasoff and the lesser harms in the case of Seth.
Second, Tarasoff involves a person maliciously intending to harm another person. However, there is no evidence suggesting that Seth intended to harm Maxwell. Here, a casuist might begin the analysis using a paradigm case in which a physician is aware of his HIV-positive patient’s malicious intention to infect a third party from that point, one could progressively change the variables of the case to approach the degree of moral ambiguity and complexity shown in Seth’s case. This process would culminate in a case involving sexual relationship between a patient and his partner.
Third, the notion of harm with respect to HIV transmission is quite different from the harm to be prevented in Tarasoff. One might argue that fatal harm to others is averted by informing Maxwell of his risk for HIV positivity. He can subsequently alter his sexual practices and, thus, prevent the future spread of the virus. Herein lies the problem. In Tarasoff the person warned of the harm is also the person at risk of being harmed. In the case under discussion, however, warning Maxwell might prevent harm to other, yet unnamed individuals. A case analogous to Seth’s should describe a situation in which the possible harm has already occurred and the future harm to be avoided consists of preventing future transmission. An analogous case might involve issues of confidentiality in regard to the (vertical) transmission of a fatal genetic disease that manifests itself after sexual maturity. Imagine, for example, a young man afflicted with a severe and incurable genetic disease who has proceeded to start a family without disclosing his genetic status to his wife. Does his personal physician have a duty to uphold confidentiality in this case, or should he notify the spouse so that she can make informed reproductive decisions?
Fourth, in Tarasoff, the victim was presumably unaware of the intended harm. In Seth’s case, one can argue that Maxwell knows (or can be reasonably expected to know) the potential risk of having sexual relations with a homosexuals. The authors mention this factor but do not provide a way to assess its importance. To test the importance of this morally relevant fact, a series of cases in which the third party is more (or less) responsible for knowing about the possibility of risk could be used for comparison. For example, how would our intuitions about physician disclosure in this case differ if Seth were a bisexual male who did not inform his wife of his unprotected extramarital affairs with gay and bisexual men?
Fifth, Seth was reported to have publicly announced his HIV-positive status, whereas the patient in Tarasoff disclosed his intent to kill within a protected doctor-patient relationship. Does the fact that “Seth indiscriminately revealed his HIV-positive status to the staff and other patients” at a community-mental-health-center make it easier for the psychiatrist to justify a violation of confidentiality in the name of protecting potential victims? Unfortunately, there is insufficient information to determine whether Seth’s public disclosure qualifies as a fair warning to potential victims and sanctions a violation of confidentiality. This point is potentially an important difference between Tarasoff and Seth’s case. The authors, however, would need to gather additional information concerning the circumstances of Seth’s public disclosures (when they began, to whom they were addressed, and so forth) before evaluating the weight of this morally relevant feature by comparison to a similar case.
Sixth, Tarasoff does not address the issue of how the duty to uphold confidentiality might be affected when a patient’s mental competence is in question. Seth’s case involves a mentally incompetent patient presumed to be “incapable of informing his sexual partner(s) [of his HIV positivity] or of consenting to the physician’s informing them.” The circumstances of this case raise the question: Does Seth’s physician have the same obligation to respect his patient’s confidences as he would have if Seth were a mentally competent adult patient? Central to this analysis is an understanding of how the underlying justifications for respecting the confidences of incompetent patients might differ from those of competent patients. Although the authors briefly discuss the implications of Seth’s impaired mental status, they could have profitably expanded their analysis of the ethical significance of a patient’s competency in regard to the physician’s duty to maintain confidentiality. The authors neglect to discuss, for example, how the selection of a surrogate to speak on Seth’s behalf might influence the case’s resolution.
Identifying which should be the determining factor(s) in deciding Seth’s case is a difficult moral problem. However, the first step is any casuistic analysis is to determine where the case fits in relation to other cases. Without this basic first step, it is too easy to neglect factors that may be critical in determining the proper course of action or to reply upon ad hoc, intuitive decisions.
THE NEED FOR A RICHLY DETAILED CASE
The casuistic method to which Smith and Martin supposedly subscribe, demands attention to the context of the particular case at hand, so that it may be compared to and contrasted with paradigm cases in which the ethical analysis is clear. A casuist needs sufficiently detailed information to be able to identify all of the moral issues and, thereby, situate an individual case in its appropriate taxonomy.
In Seth’s case, the authors seem to decide prematurely on the ethical issue, inappropriately hindering the search for future data. In the rush to identify and resolve the presumed ethical conflict, the ethicist may neglect to collect critical information.5 Without adequate information, the ethicist is unable to determine accurately what kind of case it is. While obtaining more information might be less interesting than theoretical analysis, often the most prudent course of action is to gather more information from the sources available in order to clarify and embellish the initial facts. Prior to leading the psychiatrist through a philosophical analysis of how to resolve the conflict between the duty to warn and the duty to uphold confidentiality, the authors should have urged the psychiatrist to obtain more information.
It is difficult, for example, to weigh the impact of Seth’s mental incompetency against the duty to maintain confidentiality because of a lack of sufficient information. Information regarding the severity of Seth’s mental illness and the chances of its reversibility would be useful in determining whether Seth should be viewed as only temporarily or permanently incompetent. If Seth is incompetent, it is not clear who should assess the harm done to Seth by a breach of confidentiality. We know too little about Seth’s life to determine who would most appropriately serve as his surrogate. Furthermore, it is not clear that violating Seth’s confidentiality would result in the social harms the authors forecast. In order to make this point, the authors would need to identify a case analogous to Seth’s, in which violating an incompetent person’s confidences is ill-advised because it might lead competent patients to mistrust or fear the health-care system.
In the previous section, we identified a variety of morally relevant factors in Seth’s case and suggested how they might affect one’s analysis. Determining the importance of the various factors in this case, however, requires the ethicist to obtain information concerning the following: the efficacy of antiviral treatment in HIV-positive persons, Seth and Maxwell’s sexual practices, the probability that Maxwell knows of Seth’s seropositivity, the degree to which Maxwell can reasonably be expected to know the risk of homosexual encounters, Seth’s previous comments regarding confidentiality, who is best situated to serve as Seth’s surrogate, and the degree to which violating an incompetent patient’s confidentiality will lead other patients to lose trust in physicians and thus avoid the health-care system. Some of this information might be obtained from Seth’s social worker. Other data, however, can be obtained only by reviewing the empirical literature. We admit that much of this information may be unobtainable. Knowing the limits of one’s knowledge, however, will allow an honest appraisal of how uncertainty regarding various factors affects one’s moral decision making. This is preferable to not attempting to ascertain the information at all.
The failure to gather sufficient information often leads to an impoverished understanding of the ethical issues that a case raises. In Seth’s case, the authors present the case as though there were one question: Is it permissible/obligatory to violate Seth’s confidentiality to warn Maxwell? Asked this way, there appears to be only two resolutions to the case: either a physician protects Seth’s confidentiality by failing to warn Maxwell o the risk, or he violates Seth’s confidentiality by warning Maxwell. Upon collection of sufficient data, one might discover ways to resolve the case that would allow all relevant values to be promoted. In some cases, additional information may provide the ethicist with an “end run” around the presumed ethical problem. For instance, if the ethicist learns that Maxwell is already aware of Seth’s seropositivity, then the ethical quandary vanishes. There is strong pedagogical justification for the authors to provide us with sufficient information to conclude that the quandary could have been resolved by seeking additional information and to help us develop innovative solutions that might promote the competing values.
Even if more information does not allow one to avoid the ethical conflict, it may prove useful in determining how best to resolve the case. It is simplistic to view the outcome of ethical analysis as a hierarchical ranking of two competing values or principles. Intermediate solutions often exist, which allow one to respect both competing values. Even in those cases where it is justified to promote one value over another, one is nevertheless obligated to consider alternative courses of action that respect, as much as possible, the other value. The authors neglect an important step in ethical problem solving – attempting to develop creative solutions that, if they cannot perfectly respect all values, at least cause as little damage as possible. This approach, known in American law as “the least restrictive alternative,”6 recognizes that solutions can be more or less respectful of ethical principles. Thus, for example, one might decide that the risk to Maxwell is sufficiently high so that some violation of Seth’s confidentiality is permissible. A variety of options would still be open. (1) The psychiatrist could call Maxwell (or have the public health department do so) and inform him that he may have been exposed to the HIV virus and thus, he should be tested. (2) The psychiatrist could call Maxwell, identify himself as Seth’s physician, and attempt to ascertain what Maxwell knows about Seth’s serostatus and what the nature of their sexual relationship was. That evidence could then be used to determine whether further actions are in order. (3) The psychiatrist could call Maxwell and tell him that he is Seth’s physician, hat he knows of Maxwell and Seth’s sexual relationship, and that Seth is HIV positive. He could then urge Maxwell to be tested. A similar range of alternatives could be developed if one decides that respecting Seth’s confidentiality is the most important value.
A final question is simply why this problem arose. If we assume, as the authors do, that “choosing one solution [in an ethical dilemma] over another leaves behind an ethically significant value and regrettably may even produce harm,” we should attempt to prevent ethical dilemmas from occurring.7 However, typically, case discussions focus on how to “solve” the problem at hand without determining how and why the problem arose, and how it might be avoided in the future. As E. Haavi Morreim points out: “Our moral lives are comprised, not of terrible hypotheticals from which there are no escapes, but of complex situations whose constituent elements are often amenable to considerable alterations.”8 The psychiatrist in this case may not have been able to anticipate Seth’s disappearance, but perhaps he could have asked additional questions on his initial encounter to prevent the resulting ethical quandary. For instance, it would have been useful if the psychiatrist had gathered information about Seth’s values and desires prior to his decompensation. Furthermore, if the physician had asked Seth for permission to talk to his friends, whether others knew of his seropositivity, whether the doctor could release this information to Seth's sexual partners. or to identify his moral surrogate, this additional information could have ameliorated the quandary that subsequently arose.
In the final analysis, we may well agree with Smith and Martin about how the psychiatrist should handle this case. In this article we have tried to criticize not the answer, but the process by which the answer was reached. We urge ethicists who are dealing with a challenging case to use the process of case comparison in their analysis, examining a variety of analogous cases; to seek sufficient information to be able to identify all the moral issues in a case and situate the case in its proper taxonomic family; to attempt to develop creative, "least-restrictive" alternatives to ethical dilemmas; and to determine if there are ways that the ethical problem can be prevented in the future. Close attention to these points is likely to improve ethical decision making in the clinical setting and ethical analyses of cases presented in the bioethics literature.
We would like to thank our friends and colleagues for their helpful comments on this paper: Lisa Parker, PhD; Joel Frader, MD; Peter Ubel, MD; and Shawn Wright. JD,MPH.
3c. Tarasoff v. Regents of the University of California, 17 Cal. 3d 425. 551 P.2d 334 (1976}.
TARASOFF: Discussion Questions
Protection of an intended victim likewise becomes a duty. To discharge that duty, the court argued, the therapist is obliged to warn the intended victim or others, to notify the police, or to take steps which are reasonably necessary to guard the intended victim.
Formulate an argument that supports the duty of confidentiality over the duty to warn an intended victim. Then formulate an argument which supports the duty to warn over the duty to protect confidentiality. (Being able to make good cases for each of the values shows the ambiguity involved here. Bring into your arguments the issue of the foreseeability of violence (is violence clearly foreseeable, probably foreseeable or unforseeable?) and the element of control over the patient by the therapist.)
Next, consider confidentiality and the right to be protected as goods in themselves, regardless of consequences. Show how each value is tied to the meaning of being human, and indicate how such a value can be argued for without consideration of consequences.
Beauchamp, Tom and LeRoy Walters (eds.) 1994. "The Management of Medical Information"_<in>
Contemporary Issues in Bioethics. Fourth Edition. Belmont, CA: Wadsworth:123-186.
Kleinman, Irwin. 1993. "Confidentiality and the Duty to Warn." Canadian Medical Association Journal 149: 1783-1785.
Perlin, Michael L. 1992. "Tarasoff and the Dilemma of the Dangerous Patient: New Directions for the 1990's." Law and Psychology Review 16: 29-63.