In codes of privacy, new cracks

As lawyers debate confidentiality code today, the ethos is under siege in US life.

Silence used to be the watchword for both lawyers and doctors when confided in by their clients. Parishioners speaking to their priest, too, were guaranteed that nothing they said would ever be repeated, even in a court of law.

The privilege of confidentiality in the three professions dates from the Middle Ages. But today, there are signs that people are increasingly questioning whether its sanctity - even in the confessional - has become obsolete, and at times, dangerous to society. Experts say reasons for the ethical reexamination range from the growth of today's tabloid society, where privacy is almost an old-fashioned concept, to the demise of the family doctor and lawyer, who could be trusted to protect a client's interests at all costs.

• This week, the American Bar Association votes on whether to allow lawyers to disclose details about clients to prevent future harm to others. If the proposal passes, it would be the biggest change in the ABA's code of conduct in two decades.

• A Massachusetts legislative committee recommended last week that clergy be added to the list of "mandated reporters," who are legally required to report suspicions of child abuse to the authorities. It would be the 12th state to specifically require clergy to take such action, although at least seven of those still provide an exemption for information received during a confession.

• A student who was given antidepressant drugs at the Medical Center at the Massachusetts Institute of Technology committed suicide this spring. In light of the incident, MIT is reviewing its mental-health-services policies, including the decision not to inform the student's parents, per the student's request.

This last example comes even though observers say the medical profession has already gone through an ethical self-examination similar to the one facing the ABA today in Chicago.

That debate would give lawyers the right to report information they feel "reasonably certain" will cause death or serious injury, not just imminently, but over the long term.

Opponents argue that such a move undermines the trust at the heart of the attorney-client relationship, and will scare off clients or cause them to withhold information. Proponents say it is an overdue change that has already proved effective in the medical profession.

Individual rights vs. society

"There has been a recognition in medicine ... that at times when there is a threat to the public health, that it is legitimate to breach confidentiality," says David Orentlicher, a law professor at Indiana University and former director of the Division of Medical Ethics at the American Medical Association. "The proposed change ... brings the legal profession closer to where the medical profession is."

More than individual violence, the proposed ABA changes are aimed at matters with broad health and safety concerns: corporate cases like tobacco or defective tires, in which a lawyer going public at an opportune time may have saved scores of lives.

"Attorneys are now debating, 'How do you balance your obligation to society with your obligation to the client?' That was a very hard debate for us," says Celia Fisher, director of the Center for Ethics Education at Fordham University in New York.

Ms. Fisher says psychologists went through the debate in the early 1990s, pressed by new laws requiring them to report child abuse to the authorities.

She questions lawyers' claim that the change will frighten away clients. "With the reporting laws that required psychologists to release information regarding child abuse," says Fisher, "there is no evidence that it was a barrier to people seeking help. It really forced our field to question whether respect for a person's autonomy and privacy outweigh potential harm to others."

The issue has spilled over into the spiritual realm as well, where recent high-profile cases have kindled debate on the limits of confidentiality. In New York, a priest recently told authorities he heard a teenager admit to a murder in 1987 for which two others were convicted. He felt comfortable approaching authorities now because the alleged murderer had died. In addition, the admission came in a conversation rather than a confession.

The New York case and a number of child-abuse cases involving clergy have sparked passionate discussion in lay circles - and it is there that change is being considered. For priests, compromising on confidentiality is not a subjective matter: They are sworn to protect the sanctity of confessions. For the most part, that sanctity is protected by US law, although that protection is no longer automatic, as the growing number of states requiring clergy to report child abuse shows.

Why now?

Observers cite the convergence of a number of societal trends to explain why debate over an ethos that has lasted for centuries is now coming to a head. Some suggest the pedestals on which professionals have stood have grown wobbly, making the public more willing to pass judgment on the decisions of doctors and lawyers.

Others make the case that confidentiality is an obligation born largely of a personal relationship, and that the de-personalization of medicine and the law - with managed healthcare plans and legal specialization replacing the family doctor and lawyer - has eroded discretion.

In the past 20 years, it's become less clear "that there's a relationship with a client that is the moral heart of the practice," says Vivian Weil, director of the Center for Study of Ethics in the Professions at Illinois Institute of Technology in Chicago.

Some observers suggest that, in an age when dozens of health professionals may have access to a patient's medical records, there is a subconscious deterioration in the expectation of confidentiality. The current Big Brother generation (the TV show, not the book) may harbor a sense that there are no secrets anymore. In today's tell-all, Oprah society, younger people are used to openness and almost expect a lack of privacy.

"With the medical students I teach, it's not like they grew up knowing you have to keep information about patients confidential," says Arthur Derse, director for Medical and Legal Affairs at the Center for the Study of Bioethics at the Medical College of Wisconsin. "People want to talk about this stuff at parties.... It's actually a bit of a task to really inculcate into physicians-to-be that certain things need to be kept confidential."

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