To breach or not to breach a patient’s confidentiality? A case study in the colorectal clinic

By Daniel Sokol.

A patient presents to the colorectal clinic with bleeding from the rectum.  “Doctor”, he says sheepishly, “I must tell you that I have sex with my dog.”

Intercourse with an animal, once known as ‘buggery with an animal’, is a criminal offence under s69 of the Sexual Offences Act 2003, with a maximum penalty on conviction of 2 years’ imprisonment.  The offence covers both the intentional penetration of a living animal’s vagina or anus with the offender’s penis, or intentionally causing or allowing one’s anus or vagina to be penetrated by the penis of a living animal.

Should the doctor breach the patient’s confidentiality and inform the relevant authorities?

The duty of confidentiality appears in the Hippocratic Oath and has been described by the 17th century French doctor, Jean Bernier, as the “soul of medicine”.[i]  The French call it “le secret médical” (“medical secret”), stressing the link between secrets and confidentiality.  There is a strong public interest in the maintenance of this duty.  Without it, the all-important trust between doctor and patient will be eroded.  Patients may be reluctant to share private information with their doctors, or may not attend their doctor at all, with adverse consequences to their health.  Would this patient have spoken so freely without a belief that the doctor was duty-bound to keep his secret?  Maintaining confidentiality may therefore benefit the health of the patient and, more broadly, society.

Yet, however strong, the duty is not absolute.  There are times when a doctor must, by law, disclose a patient’s information, as in the case of certain notifiable diseases and under terrorism legislation.

In this case, the doctor is under no statutory obligation to breach the patient’s confidences.  The question is whether the doctor may do so in the public interest.  There is, in my view, such an interest in protecting a dog from the likely harm, whether physical or psychological, of sex with a human and bringing offenders to justice.

On the other end of the scales, aside from the public interest in preserving a strong duty of confidentiality, must be placed the patient’s potential harm or distress from the disclosure, including the loss of his liberty in the event of a custodial sentence, financial loss if fined, and the loss of trust in the medical profession.  In my experience, patients whose confidentiality has been breached regard it as a betrayal, a break of an implicit promise of secrecy, and develop an antipathy to doctors.

In its guidance, the General Medical Council permits disclosure of confidential information if this is likely to be necessary for the prevention, detection or prosecution of “serious crime”. There is no definition of this term, although there is specific mention of crimes against the person.  While offences such as murder, manslaughter, rape, kidnapping, child abuse, and grievous bodily harm would plainly fall within the category of serious crime, it is doubtful that intercourse with an animal, whose ordinary sentence would result in a community order rather than imprisonment, would so fall.  The Department of Health’s supplementary guidance on public interest disclosures, published in November 2010, noted that a serious crime will “likely include…crimes which carry a five-year minimum prison sentence but may also include other acts that have a high impact on the victim.”

In my opinion, faced with this ethical conundrum, the doctor should have sought advice from colleagues, the Trust’s ethics committee, their defence organisation, or the British Medical Association’s ethics hotline, to help conduct the balancing exercise above.  If consulted at the time, I would have advised the doctor to maintain the patient’s confidentiality.  The public interest in disclosure does not appear compelling enough to tip the scales away from the strong Hippocratic duty to keep the patient’s secrets.

The doctor should nonetheless advise the patient of the medical risks of his sexual activity and recommend referral to a mental health professional.

[1] Bernier, J. Essais de médecine (Paris, Simon Langronne, 1689), p.268

 

Author: Daniel Sokol

Affiliations: 12 King’s Bench Walk Chambers, London, UK; medical ethicist

Declarations: This article does not constitute legal advice and should not be used as a substitute for such advice.

Competing interests: None declared.

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