Identificación y funciones de las personas y equipos que llevarán

3. Justice: acting fairly and balancing the interests of different people.

Ethical principles can, and do, regularly conflict with each other. In psychiatry this most often occurs when beneficence is in conflict with respect for autonomy—for example, when a patient

refuses treatment that professional opinion judges to be essential, and the Mental Health Act has to be used (see below). The essay ‘Two Concepts of Liberty’ by the philosopher Isaiah Berlin outlines this dilemma in distinguishing between ‘freedom from’ and ‘freedom to’ (Berlin, 1958). Autonomy is not always served simply by ensuring the absence of coercion if the individual is not in a position to act on their liberty. The Nobel Laureate Amartya Sen argues that our sensitivity to injustice informs our balancing of ethical principles, and not vice versa (Sen, 2007).

Codes of practice

Codes of practice and guidelines are prepared and overseen by professional organizations such as the American Psychiatric Association (1995) and, in the UK, the General Medical Council (2004) and the Royal College of Psychiatrists (2000). In some countries ethical codes are enforced not by the professions but by government. Loss of confidence in the professions has led to some demands for this arrangement in the UK.

The other professions involved in psychiatric care, such as nursing and psychology, have their own codes of practice, and these are not identical in every respect to those of the medical profession. Such differences may sometimes complicate decisions concerned with ethical aspects of care

provided by a multidisciplinary team.

Values-based practice has recently been proposed as a complement to evidence-based practice (Woodbridge and Fulford, 2004). Ethical values can be in conflict, and routinely need to be balanced. The relative weight assigned to different values by the members of multidisciplinary teams (as well as the patient) may vary considerably. Values-based practice encourages the exploration of this in arriving at decisions, aiming to ensure that the traditional hierarchy in such teams does not inhibit their expression. For example, the psychiatrist may privilege treatment effect, whereas a nurse may privilege the patient’s self-respect and the social worker may privilege the patient’s rights. All of the team members acknowledge the relevance of all of these values, but the relative importance that is accorded them will vary and best practice, and effective teamworking, requires that they are

accommodated.

Ethical problems in psychiatric practice

In the following sections of this chapter we shall discuss ethical problems relating to:

• the doctor–patient relationship • confidentiality

• consent

• compulsory treatment • research.

As mentioned previously, ethical problems that arise in particular aspects of practice are discussed in other chapters (see Box 4.1).

The doctor–patient relationship

A relationship of trust between doctor and patient is the basis of ethical medical practice. This relationship should be in the patient’s interests and based on the principles (outlined above) of respect for autonomy, beneficence, non-maleficence, and justice.

Abuse of the relationship

The more intense the doctor–patient relationship, and the more vulnerable the patient, the more

readily that relationship can be abused. For these reasons, particular care has to be taken not to abuse the relationship during psychotherapy. Therapists abuse the doctor–patient relationship when they:

• impose their own values and beliefs on their patients—for example, when counselling about termination of pregnancy. This influence may be overt—for example, when a doctor refuses

the doctor expresses no opinion but nevertheless gives more attention to the arguments against termination than to those for it. Similar problems may arise, for example, in marital therapy when therapists’ values may intrude on their approach to the question of whether a couple should separate • put the interests of third parties before those of patients—for example, the interests of employers.

Nevertheless, the interests of individual patients cannot be considered in isolation. For example, when allocating resources to a community, or when deciding about the treatment of potentially dangerous patients, the interests of the patient have to be balanced against those of other people. These difficult decisions are discussed further on p. 622 and p. 623

• exploit patients sexually. Medical codes of practice contain an absolute prohibition against sexual relationships with a patient. Particular care is needed if sexual problems and intimate relationships are prominent in psychotherapy

• exploit patients for financial gain—for example, by prolonging treatment in private practice for longer than is necessary to achieve the patient’s goals.

Confidentiality

Confidentiality is central to the trust between patients and doctors. It is particularly important in psychiatry because information is so often collected about private and highly sensitive matters. As a general rule, information should not be disclosed without the patient’s consent although, as will be discussed later, there are defined exceptions to this rule. The rule is an ancient one, stated in the Hippocratic Oath:

Whatever, in connection with my professional practice or not in connection with it, I see or hear in the life of men, which ought not to be spoken abroad, I will not divulge, as reckoning that all such should be kept secret.

The rule was restated in 1948 in the Declaration of Geneva, which added the important point that the obligation of confidentiality continues after a patient’s death:

I will respect the secrets which are confided in me, even after the patient has died.

In many countries, national professional organizations publish guidelines that deal with common clinical situations such as protecting records, sharing information with relatives, and disclosing information to third parties (see, for example, General Medical Council, 2004, and the updated website www.gmc-uk.org). Confidentiality is also enforced by law and by contract of employment, and although professional guidelines do not have the force of law, they are taken seriously by the courts as evidence of generally accepted standards.

Many countries have laws of privacy, and laws that govern the ways in which written and electronic records can be held and that set out patients’ rights to see their personal information. Psychiatrists should be aware of the ethical and legal requirements in the place in which they are working. In the UK, the relevant legislation includes the Data Protection Act (1998).

From the perspective of English law, it is in the public interest, as well as that of the individual, that patients should be able to trust their doctors to maintain confidentiality. Therefore the issue of when it is lawful and when it is unlawful for a doctor to breach confidentiality is generally answered by balancing two conflicting public interests rather than balancing a private interest against a public

interest.

Ethical principles relating to confidentiality Safeguarding information

Personal information must be safeguarded and records kept securely, and consideration must be given to the security of mobile phones or email. Unintentional disclosure should be avoided by carrying out consultations where they cannot be overheard (which is sometimes difficult when patients are seen at home or in a medical ward) and by avoiding discussions between professional staff in places where they might be overheard.

Consent to disclosure of information

Confidentiality is not breached when a patient has given informed consent to disclosure. In this context, informed consent means consent based on a full understanding of the reasons for disclosure, what will be disclosed, and the likely consequences of disclosure. In principle, confidentiality is not breached when the patient cannot be identified—for example, in a disguised case report.

Nevertheless, it is usual for journals and books to require that patients give informed, signed consent to publication, even when their identities have been disguised. This obligation, unlike libel laws, continues after death. Poorly anonymized case reports of deceased patients, from which these individuals have been identified, have led to professional complaints from their families.

Confidentiality in the care of children

These and other ethical problems in the care of children are discussed in Chapter 22. Here it is sufficient to note that children over a stated age (usually 16 years) have the same rights of

confidentiality as adults. For younger children, clinical information is usually shared with parents, who have a legal duty to act in their children’s best interests and therefore need to be properly informed.

Situations in which there may be problems regarding confidentiality Seeking information from others

As a rule, patients’ permission should be obtained before information is sought from other

individuals. If the patient is mentally disordered and unable to give an account of himself, and the information is essential for good care, the psychiatrist must decide whether to seek it without the patient’s consent. The guiding principles are to act in the patient’s best interests, and as far as possible to obtain the information from close relatives.

Disclosing information to others

Information should be disclosed only with the patient’s consent, except in the special circumstances discussed below. Disclosure should be limited to the information necessary for the purpose of the disclosure. Relatives often ask for information, but this should be given only with the patient’s

consent. However, when the patient is unable to consent to disclosure (e.g. as a result of dementia), information may be shared provided that disclosure is in the patient’s best interests.

Assessment on behalf of a third party

When a patient is assessed on behalf of a third party (e.g. an assessment of fitness to work carried out for an employer), it is essential to ensure at the outset that the patient is aware of the purpose of the assessment and of the obligations of the doctor towards the third party. Written consent should be obtained. Otherwise disclosure can be made only in the public interest (see below), usually to prevent death or serious harm.

Care in the community

Patients should know from the start that information will be shared as necessary with other members of the care team, and these team members must follow the principles of confidentiality. Some

members of the team (e.g. social workers) may be required to discuss information with their

supervisors, or to pass on information to other agencies (e.g. when helping patients with housing). It is important to keep such matters in mind as treatment plans develop, and to discuss them with the patient when this becomes necessary. When visits are made to patients, neighbours may become aware of the visits. Moreover, outreach programmes may require enquiries about high-risk patients who have not kept appointments. These and similar potential problems should be anticipated as far as possible and discussed with the patient so that the necessary permissions are obtained in advance. In an emergency, the right to privacy has to be balanced against the risks of harm to the patient or to others, should the necessary enquiries not be made.

If a patient refuses the disclosure of information despite clear information about the likely

consequences of nondisclosure, their wishes must be respected unless this would put others at risk of serious harm.

Group therapy

Group therapy presents special problems of confidentiality because patients reveal personal

information not only to the therapist but also to other members of the group. Before treatment begins, the therapist should explain the requirement to treat as confidential the revelations of the other group members, and the necessary agreement should be obtained from everyone who will take part in the group.

Therapy with couples

Usually the treatment of a couple is preceded by an interview with each partner separately. Information obtained in this way from one partner should not be revealed to the other without the agreement of the first. If possible, all relevant information should be revealed by the partner concerned, during the joint sessions. If, after therapy has started, it becomes necessary to see one member of the couple alone (e.g. to assess symptoms of depression), it may be better for the therapist to ask a colleague to do this. Similar problems may arise in family therapy.

Exceptions in the patient’s interest

In exceptional circumstances, doctors may disclose information to a third party without the patient’s consent, when this disclosure is in the patient’s best interest—for example, when information is requested urgently by another doctor who is dealing with the patient in an emergency, and the patient’s permission cannot be obtained, or when a patient is incapable of giving informed consent because of severe mental or physical illness, and the disclosure is essential for their care.

Exceptions in the public interest

Although there is a general legal obligation for doctors to keep confidential what patients tell them, there are special circumstances in which doctors are obliged to disclose information to a third party because this is in the interest of the community as a whole, or of a group or individual within it. There are statutory obligations to do this in relation, for example, to communicable disease, the use of certain controlled drugs, unfitness to drive, and suspected child abuse. There is also an obligation to disclose relevant information in response to a Court Order, and when there is evidence of serious crime, usually a crime that will put some person at risk of death or serious harm (e.g. the abuse of a child). Child protection has become a particularly sensitive area for professional confidentiality. Society’s tolerance of the potential abuse or neglect of dependent children is almost negligible now in most countries. The current expectation of professionals is that their threshold for breaking

confidentiality should be very low in cases where there are any concerns or doubts, even in the

absence of clear evidence. In such cases, every effort should be made to persuade the patient to agree to disclosure. If they refuse, the reasons for the disclosure should be explained and written down.

Exceptions for legal representatives

A patient’s legal representative, like the patient, may read clinical notes and letters that have been written about that patient, although there may be restrictions in relation to the possibility of harm to others (e.g. from the reading of certain information given in confidence by informants).

For further information about problems related to confidentiality, see Hope et al. (2008, Chapter 7).

Consent to treatment

Consent is relevant to the whole of medical practice, and in the account which follows we assume that the reader is familiar with the relevant concepts and procedures from their general medical

training. Any readers who are not should consult the latest General Medical Council guidelines if they are working in the UK (see www.gmc-uk.org), or the equivalent document if they are working

elsewhere, and read a textbook of ethics such as that by Hope et al. (2008).

Obtaining consent The patient should:

1. have a clear and full understanding of the nature of the condition to be treated, the procedures