Thumbs Up for Privacy

“Hey, Iain,” says Fran, a Manchester alumna, “What do you make of this?”  I won’t bother rehearsing the whole scenario described in the post, but the dilemma it describes – set out by one Simon Carley – is fairly easily summarised: you work in A&E; a patient is rolled in who’s unconscious; there’s no ID, no medic alert bracelet – in short, nothing to show who the patient is or what their medical history is; but the patient does have an iPhone that uses thumbprints as a security feature.  And it might be that there’s important information that’d be accessible by using the unconscious patient’s thumb to get at it – even if it’s only a family member who might be able to shed some light on the patient’s medical history.

It’s a potentially life-or-death call.  Would it be permissible to hold the phone to the patient’s thumb?

For those who think that privacy is a side-constraint – that is, a moral consideration that should not be violated – the answer will be obvious, and they’ll probably stop reading around about… NOW.  After all, if you’re committed to that kind of view, it’s entirely possible that the question itself won’t make a great deal of sense (tantamount to “Is it OK to do this thing that is plainly not OK?”), or at least not be worth asking.  But I don’t think that privacy is a side-constraint; I’m increasingly of the opinion that privacy is a bit of an iffy concept across the board, for reasons that needn’t detain us here, but that might be implied by at least some of what follows.  In short, I think that privacy is worth taking seriously as a consideration, but it’s almost certainly not trumps.  At the very least, that’s how I shall handle it here.  (Note here that the problem is one of privacy, not – as the OP has it – confidentiality; it’s a question about how to get information, rather than one of what you can do with information volunteered.  A minor quibble, perhaps, but one worth making.)  Even if I’m wrong about privacy in general, the question still seems to be worth asking, if only to confirm that and why it should not be violated.

Neither am I too concerned about what the law would say.  In the OP, Carley is careful to keep the law bracketed, and I think that that’s a good move.  Partly this is because I’m inexpert and wouldn’t want to stick my oar in; partly, it’s because the law can and does change from time to time and place to place; partly it’s because I’ve the luxury of invoking the philosopher’s privilege of ignoring what the law does say, and banging on instead about what it should say.  On top of all that, I think that even if statute or guideline said that you can’t open the phone like this, a Herculean judge wouldn’t have too much difficulty finding a way to show that, despite appearances, you can.  After all, there’re laws against unauthorised surgery; but there’s also a principle by which all manner of things might be possible in the service of saving a person’s life if that person isn’t in a position to authorise it.  It should be easy enough to apply the principle here.

But this point, I think, undermines the imperative to check the phone by whatever means available.  The reason for this is that doing so strikes me as being a part of saving the patient’s life only by the most indirect route.  Carley suggests why this is in his post:

[W]e would have to be looking for information that would make a difference to the way in which we are going to treat our patient at that moment in time.  It may be very important later on to contact family if we discover our patient to be critically unwell or even dying, but right at that initial moment in time in the resus room you must ask yourself “what do I need to know, and how would accessing the phone answer that[?]”.

To which – it seems to me – the answer is that it wouldn’t.  Not, that is, unless you’re the right combination of being (a) very lucky in your technological fishing expedition, and either (b) not much cop as an emergency doctor and/ or (b*) very unlucky in that your patient is a medical rarity for whom established protocols don’t do any good.  Whatever information is on the phone might help you pinpoint the reasons why – oh, I don’t know – the patient’s blood-pressure has suddenly and unexpectedly dropped in response to a particular drug… but finding out the why is the sort of luxury you can enjoy only when you’ve averted the current crisis.  And if there’s no current crisis, the rationale for looking seems to be weaker anyway.  Wait until your patient wakes up and ask directly, if you’re that bothered.

So Carley is right on that.  Any information on the phone isn’t all that useful after all.

And, of course, we have to keep in mind the possibility that there is no useful information on there to begin with.  Breaking into the phone seems to be a bit of a fishing expedition, and the likelihood of success strikes me as being not all that high.

Finally, it seems reasonable to assume that if this putatively useful information is stored on a phone, but only behind a security wall, it’s probably not all that important to the patient that it be discovered.  To simplify things: suppose someone has a condition for which a medic alert bracelet is often recommended, but chooses not to wear it.  This suggests that he’s either indifferent about the condition, or has chosen positively not to draw attention to it.  The analogy with the information on the phone should be clear: if the patient hasn’t taken steps to make it accessible, then accessibility wasn’t a priority, and (more speculatively) inaccessibility might have been.

Naturally, I think that this preference is scrutable, and might be ignored in some cases; it’s no more of a side-constraint than would be a preference for privacy.  But, like the preference for privacy, it’s worth consideration.  It gives medics a reason not to go looking.

So: should medics use the patient’s thumb-print to get access to information on the phone?  I’m reluctant to say positively that respect for privacy dictates that they shouldn’t; but it does seem to me that we can make more of a negative statement, along the lines that there is no particularly strong reason why they should; such a move would be arbitrary and speculative, and therefore morally fishy.  Privacy doesn’t have to be seen as a right to be seen as something worthy of consideration.  In other words, it’s perfectly possible to end up in the same sort of place as the privacy-mavens without having to think that privacy is the most important consideration.

Have you committed a wrong by unlocking the phone?  Probably not unless you set great store by the idea that the information is there but deliberately kept hidden behind the security features – and even then, the wrong is probably forgivable.  Does that mean it’s OK?  Nope.