“Whatever the connection with my professional practice, or not in connection with it, I see or hear in life of men which ought not to be spoken abroad, I will not divulge, as reckoning that all should be kept secret.” – The Hippocratic Oath
For many years that he was alive, Rock Hudson, Hollywood movie star and sex symbol, lived a secret life. While the world thought of him as a roving Casanova, he lived the life of a homosexual in the closet. In 1984, the world received in disbelief the news that he died of AIDS.
For two and a half years before his death, Hudson lived with his lover, a young man named Mark Christian. Young Mark, like the rest of the world, was ignorant of Hudson’s affliction. Indeed, only two people knew that Hudson was suffering from AIDS; his personal assistant and pysician. And they kept it a secret. When Mark Christian tested HIV positive, he sued them for damages. The court awarded him 14.5 million dollars against the two and against Hudson’s estate.
About ten years before Mark Christian’s suit, a California court had been asked to rule that in some instances, doctors are under an obligation to break the Hippocratic Oath. That particular suit concerned Poddar, an outpatient at University of California Hospital. Poddar had informed a psychologist at the hospital that he was going to kill a girl named Tatiana when she returned from her holiday in Brazil. The psychologist had upon receipt of the information asked the police to commit Poddar for observation at a mental hospital. He was committed and subsequently released after appearing perfectly sane. Two months later, Poddar murdered Tatiana. Her parents sued the hospital.
Ruling in favor of the parents, the judge announced: “Public policy favoring protection of the confidential character of patient and psychotherapist communication must yield to the extent to which disclosure is necessary to avert danger to others. The protective privilege ends when public peril begins. The therapist was therefore liable for failing to inform Tatiana.”
The law as laid out in these two cases and a few others like them puts the doctors in a most difficult position. The doctors have on one hand to contend with their professional ethics on confidentiality as enshrined in the Hippocratic Oath. This oath was modified in the Geneva Declaration adopted by the World Medical Association in 1948 to read: “A doctor shall preserve absolute secrecy on all knows about his patients because of the confidence entrusted in him.”
On the second part, the doctors have to contend with the right of privacy of the patients. Commenting on this right, Lord Denning, as the head of the English Court of Appeal, stated: “No person is permitted to divulge to the world, information he has received in confidence, unless he has a just cause or excuse for so doing. Even if it comes by innocently, nevertheless, once he gets to know that it was originally given in confidence, he can be restrained from breaking the confidence.”
In their judgments, the two American courts were stating that the duty not to breach confidentiality is not absolute. It is a rule from which departure can be allowed and which may be overtaken by the public interest. In grievous cases, it is a rule that must not be observed.
Result
AIDS has brought in a new perspective to the duty of confidentiality. Almost always, people submit to HIV tests in hope and belief, and on the understanding that the results shall be confidential. And almost always, those who test HIV positive keep the information as a secret. In many instances, like that of Rock Hudson, this secrecy has resulted in the spread of the virus to innocent parties.
The law’s view is that doctors stand in such an important position that they owe the rest of society a duty to protect them from such an eventuality. This is owed to the patient’s family, their doctors and nurses, sexual companions or other persons likely to be exposed to infection. The public interest that requires doctors to observe the Hippocratic Oath also requires them to disclose the presence of danger to the likely victims.
In disclosing confidential information, the doctor must exercise care and be sensitive to the interests of the patient. The doctor has to be careful about what they report and to whom. They must disclose information responsibly and must not unnecessarily hurt the interests of the patient. Whatever he does in respect to disclosure must be justified by the genuine public interest.
Patient
Medical unions around the world have had to address themselves to the complex question brought by AIDS to the Hippocratic Oath. The British Medical Defense Union has stated that where a doctor knows that a patient is HIV positive, they have a duty of disclosure to third parties who may be foreseeable as those who would be injured as a result of their failure to protect them by giving them information.
In America, several states have reduced this duty to legislation. In California, the laws directly authorize physicians to inform the spouse of a person whom the physician suspects to harbor the HIV virus.
But while the law puts this onus on doctors, it leaves lawyers largely, almost absolutely, protected. The advocate/client privilege is the most rigid between a professional and his client.
