Legal Issues The privilege of patients to keep their records or medical information private can be superseded by the needs of society, but only in rare circumstances. The classic legal decision quoted for the needs of others superseding individual patient rights is that of Tarasoff v. Regents of the University of California (18). That decision establishes that the special relationship between a patient and doctor may support affirmative duties for the benefit of third persons. It requires disclosure if “necessary to avert danger to others” but still in a fashion “that would preserve the privacy of the patient to the fullest extent compatible with the prevention of the threatened danger.” This principle is compatible with the various codes of ethics that allow physicians to reveal information to protect the welfare of the individual or the community. In other words, “the protective privilege ends where the public peril begins” (18).
Legislation can override individual privilege. The most frequent example is the recording of births and deaths, which is the responsibility of physicians. Various diseases are required to be reported depending on state law (e.g., HIV status may or may not be reportable in individual states, whereas AIDS is reportable in all states). Reporting any injuries caused by lethal weapons, rapes, and battering (e.g., elder and child abuse) is mandatory in some states and not others. The regulations for the reporting of these conditions are codified by law and can be obtained from the state health department. These laws are designed to protect the individual’s privacy as much as possible while still serving the public’s interest. Particularly in the realm of abuse, physicians have a complex ethical role regardless of the law. Victims of abuse must feel supported and assured that the violent act they survived will not have an adverse effect on how they are treated as people. Their sense of vulnerability and their actual vulnerability may be so great that reporting an incident may increase their risk for medical harm. Despite the laws, physicians have an ethical responsibility to protect the patient’s best interest.
Informed Consent Informed consent is a process that involves an exchange of information directed toward reaching mutual understanding and informed decision making. Ideally, informed consent should be the practical manifestation of respect for patient preferences (autonomy) (19,20). An act of informed consent is often misunderstood to be getting a signature on a document. The intent of the individual involved in the consent process is often the protection of the physician from liability. Nothing could be further from either the legal or ethical meaning of this concept.
Informed consent is a conversation between physician and patient that teaches the patient about the medical condition, explores her values, and informs her about the reasonable medical alternatives. Informed consent is an interactive discussion in which one participant has greater knowledge about medical information and the other participant has greater knowledge about that individual’s value system and circumstances affected by the information. This process does not require an arduous lecture on the medical condition or extensive examination of the patient’s psyche. It does require adjustment of the information to the educational level of the patient and respectful elicitation of concerns and questions. It also requires acknowledgment of the various fears and concerns of both parties. Fear that the information may frighten patients, fear of hearing the information by the patient, a lack of ability to comprehend technical information, and an inability to express that lack are among the many barriers facing physicians and patients engaging in this conversation. Communication skills are part of the art of medicine, and observation of good role models, practices, and positive motivation can help to instill this ability in physicians (21).
Autonomy Informed consent arises from the concept of autonomy. Pellegrino defines an autonomous person as “one who, in his thoughts, work, and actions, is able to follow those norms he chooses as his own without external constraints or coercion by others” (22). This definition contains the essence of what health care providers must consider as informed consent. The choice to receive or refuse medical care must be in concert with the patient’s values and be freely chosen, and the options must be considered in light of the patient’s values.