Sandra Petronio, Privacy Perils: Deciding to Disclose or Protect Confidentialities
Comment by: Neil Richards
PLSC 2011
Workshop draft abstract:
Privacy is not only a legal matter; it is a matter of human behavior. Humans manage private information in a systematic, yet complicated manner (Petronio, 2002). Consequently, on the surface, the process may appear straightforward. However, when someone discloses private information to a confidant, a great deal may happen between the individuals before, as, and after that disclosure occurs. The individual making the disclosure may have chosen the confidant because there is a level of trust upon which that the person can depend. The discloser may assume that the confidant will likely abide by his or her “rules,” even if implicit, regarding protecting or revealing the disclosed information to a third party. Often, these assumptions a discloser makes are typically more ideal than real. With a few exceptions, the more realistic outcome tends to be less clear-cut and more complicated (Petronio & Reierson, 2009). Using a Communication Privacy Management (CPM) theoretical approach, this paper explores the “problematics” found with the confidant’s role (Petronio, 2002). At issue is how privacy is managed by recipients and the impact that serving as a confidant has on the individual recipient. CPM theory argues that when people become confidants, they are considered co-owners of the information and therefore have a fiduciary responsibility to abide by the privacy rules the original owner wants them to use.
The confidant, at times, faces ambiguities because original owners may not state the expectations they have regarding how confidants should regulate their information. The role of confidant, especially in professions such as medicine, is often multifaceted. The dilemmas that health providers encounter, while not exclusive to medicine, illustrate the perils that confidants can face. Often physicians must weigh the risks and benefits of breaching confidences to meet best practices for the patient. Further, ambiguities may exist surrounding the legitimacy of seeking pertinent information from a family member. The physician may attempt to identify the best treatment plan or home care options but become hampered by the inability to obtain authorization from the patient to discuss the possibilities with family members. Even more complicated may be situations where patients deny authorization to discuss end-of-life options with family members. Then, subsequently the patient loses physical or mental capacity to change that decision leaving the physician to cope with family members who disagreed with the patient’s choices. Legally, the physician is bound to follow the specified choices of the patient if the documents identifying choice are present. Yet, families often believe they have rights to a member’s private information and control to over-rule decisions a member makes that appear to be no longer functional. Physicians are bound by confidentiality and may not be able to reveal the reasons for the patient’s choices. These obligations protect the patient but the physician, as confidant, must navigate the family’s demands for a rationale explaining the patient’s choices.
The challenging role of confidant that physicians encounter may also take a toll on them personally. Acutely difficult situations can exist when physicians must disclose bad news, including revealing medical mistakes to patients and their families. In these cases, physicians must disclose information that technically belongs to the patient. While the information is private to the patient, the physician controls the flow of the patient’s information. The physician must tell patients about something unknown and potentially anxiety producing. Physicians are the keepers and bearers of bad news in their role as confidants. While physicians understand their obligations to the patient, they are also challenged in determining the balance between hope and honesty regarding the health outcomes for the patient. In some cases, physicians opt to err on the side of hope which may mean the patients do not receive a timely or effective disclosure of information related to their own case. In hospice care, for example, the challenges are many on this point. The confidant role for physicians often requires them to carry the burden of someone else’s information that can simultaneously heighten their sense of responsibility and negatively affect them emotionally. Managing this dual role of responsibility to others and impact it has on the physicians is especially evident in disclosing medical mistakes. The tension between having to reveal an event that is apt to feel like a threat to personal reputation and recognizing the patient’s rights of ownership clearly illustrates the often perilous nature of a confidant’s role for physicians.
While the legal parameters and responsibilities of physicians to patients may seem more clear-cut, the decisions guiding the communicative nature of revealing or protecting private medical information and the role of confidant seems much less clear in day-to-day interactions.