This paper highlights the fact that medical confidentiality is an absolute duty which needs qualifications within the Cameroonian context. Hence, what is the duty of confidentiality? How does the principle of confidentiality operate in Cameroon? What are the justifications for medical confidentiality? How can medical confidentiality be breached? How is medical confidentiality terminated? Based on the ensuing above, the paper examines the origins and concept of medical confidentiality. It further investigates the justifications of medical confidentiality and circumstances which medical confidentiality comes to an end.
MEDICAL PROFESSIONAL-PATIENT SECRECY UNDER THE CAMEROON MEDICAL LAW AND ETHICS: ABSOLUTE OR QUALIFIED DUTY
AKAME WINSLOW MELLE
The absolute duty of confidentiality
“I swear by Appollo, doctor by Asclepius, by Hygeia and Panacea, by all the gods and goddesses, and to take to witness that () what I may hear or see in the course of the treatment or even outside of the treatment as regard to the life of men, which on no account should be spread abroad, I will keep it as a secret to myself”1 It is in these terms that the medical profession drew inspiration for this doctrine of medical confidentiality. This oath of Hippocrates is a moral obligation which medical professionals undertakes to respect before they start the practice of medicine. Medical confidentiality per Boreham J. in Hunter v. Mann,2 entails that… “the doctor is under a duty not to disclose, without the consent of the patient, information which he, the doctor, has gained in his professional capacity.” This view was further adumbrated in the very significant case of
W v. Egdell,3 when the court accepted that the existence of an obligation of confidentiality between a psychiatrist and his subject, an obligation which counsel further submitted that it was based not only on equitable grounds but also on an implied contract. Most recently, the House of Lords has confirmed in Campbell v. Mirror Group Newspapers Ltd4, that details of one’s medical circumstances are obviously private and deserving of the full protection of the law of confidence. The Human Right Act of 1998 and the Data Protection Act of 1998, further enhances protection of individuals with regards to the processing of personal data and more especially on the protection of medical information.
The basis of this principle in Cameroon
The basis of professional- patient secrecy in Cameroon is the Hippocratic Oath which states that “whatever thing seen or heard in the course of medical practice ought not to be spoken of, I will not, save for weighty reasons, divulge.” The Declaration of Geneva amended in Sidney in 1968, Venice 1983, and Stockholm in 1994 imposes much same obligations on medical professionals to respect the secrets which are confided in them, even after the patient is death .5
The Cameroon Code of Medical Ethics stipulates in part 1 sub section 4 that professional secrecy shall be binding on all doctors, unless otherwise provided that in all conscience it is not harmful to the interest of the patient.6 Section 4 of Law No. 90 equally provides “A physician in service in the administration or in the private sector shall be bound by: ‘professional secrecy’ the Code of Ethics adopted by Cameroon Medical Association and approved by the Supervisory Authority; and the statutory provisions of the association.”7
Equally, section 40 of the Code of Medical Ethics is to the effect that a specialist must, before undertaking any operation of assessment, informed the person he is to examine of his mission. Section 41(2)8 provides thus; in his report, the specialist must only reveal the information to serve as replies to the question in the decision appointing him and must not reveal any other information he might have learnt. From the reading of the above provisions, medical professionals are under a duty not to divulge confidential information concerning the status of a patient to third parties even if the patient is death except provided for by the law. This is understood as a right and it is an essential prerogative of human persons which requires legal protection based on the need to safeguard the privacy of the patient.9
Reasons for medical confidentiality
The following reasons accounts for non-disclosure of medical information to third parties:
The desire to preserve the physical and moral integrity of the patient
In all civilised societies, the protection of individual’s reputation occupies a very important place. This basic requirement contrast with democratic societies wherein the cardinal principle is the guarantee of freedom of speech without which democratic societies cannot evolve. The concept of non-disclosure in medical law comes in to strike a balance between the protection of individual’s reputation and the guarantee of freedom of speech. This is because in as much as a medical practitioner is free to speak, he or she is not permitted to say things that will injure the physical or moral integrity of the patient in the eyes of right thinking members of the society.
The need to re-enforce the pact of trust between the doctor and the patient
The desire to re-enforce the pact of trust between the doctor and patient is another reason for non-disclosure of patients’ information’s to third parties. This is true because confidentiality gives the patient the courage to tell the practitioner everything that is disturbing him or her. Xaviera H, reveals in her book that her father a medical doctor does not talk about his patients same too as the prostitute is not supposed to talk about her Johns.10 This is in a bit to enforce the pact of trust and confidence between the doctor and the patient, which if destroy patients would be deterred from confiding on doctors for fear of communications at a later date. The rationale for this head is for proper diagnosis and treatment of the patient. The ideal professional relationship is one in which there is mutual trust and truthfulness. At times, patients can be less than frank, especially if worried about how their information might later be used, but health professionals should always be open and should act with integrity. Patients can lose trust in them if they feel they have not been given accurate information.
What amounts to breach of medical confidentiality?
To constitute breach of medical confidence, three essential elements have to be established. First, the information divulged must have the necessary quality of confidence about it; secondly, the information must have been imparted in circumstances importing an obligation of confidence; and thirdly, they must be unauthorised use of the information11
Qualified nature of medical secrecy
Everything is confidential, nothing is confidential. We all want privacy at the same time that we clamour for openness. People have strong impulses to share even their most private information, but they also unrealistically expect their shared conversations to be kept secret.12
Synopsis of medical secrecy or confidentiality
The foundation of medical practice is the issue of medical secrecy. This is a vital issue in the medical profession because it promotes trust in the professional of medical science-patient liaison, helping to redress the imbalance between the expert medical knowledge, and associated power, of the doctor compared to the relative medical ignorance and vulnerability of the patient. The understanding that medical professionals must respect secrecy gives patients greater confidence to be open and honest, revealing personal and sensitive information in order to ease efficient and effective diagnosis and treatment. Secrecy can be look upon as an essential element of what Pellegrino (2003) terms the ‘internal morality of medicine’, the ethical principle distilled from the main healing purpose of the doctor-patient connectedness.
In Britain, medical secrecy has long been recognised as an essential component of ethical medicine, and the professional duty to respect patients’ secrets has been explicitly acknowledged in many sources. It is highlighted in codes of medical ethics, regulations and professional advice issued by the British Medical Association (BMA) and the General Medical Council (GMC): books of medical deontology and medical law; as well as specific statutory instruments, judicial opinion and obiter dicta. However, in Cameroon, just like in Britain, professional medical secrecy is a qualified, rather than an absolute principle. Statute and common law, public policy, regulatory guidance and professional ethics all recognised instances when medical secrecy must be breached13.
It is a worldwide that medical professionals owe an obligation of secrecy to their patients, which this professional duty has been consistently acknowledged in judicial opinions, statutory instruments, codes of ethics and many sources all through the era under investigation. As oppose to the absolute obligation,
Standards that determines disclosure
Three different standards are available for determining which information should be disclosed: 1) the professional standards where the current disclosure practices of the profession itself dictate, i.e., that the duty to disclose "is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances,,;14 2) the reasonable person standard where the duty to disclose is dictated by what the "average reasonable person" would deem relevant or material to the decision at hand;15 and 3) the subjective standard, which allows room for the idiosyncratic views and character of the individual patient in determining disclosure.16
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1 Adna Ebude Enang (2017), The Responsibility of Medical Doctors under Cameroonian Law, PhD Thesis, Faculty of Law and Political Science, University of Yaoundé II Soa, p.257.
2 (1974)QB767 at 772.
3 (1990) 1 ALL ER 835.
4 (2004) 2 AC 457, (2004) 2 ALL ER 995.
5 Mason & McCall Smith’s, (2006), Law and Medical Ethics, 7th edition, Oxford University Press, New York, p.254.
6 Decree No. 83- 166 of 12 April 1983 on the Cameroon Code of Medical Ethics.
7 Law No.90-036 of 10th August 1990 relating to the Organisation and Practice of medicine in Cameroon.
8 Decree No. 83- 166 of 12 April 1983 on the Cameroon Code of Medical Ethics.
9 Nonga J. M.,(1990 ), « Le Secret Medical », A maitrise dissertation in Private Law, University of Yaoundé, Faculty of law and Economics. P. 1.
10 Xaviera Hollander (2007), The Happy Hooker’s Code of Ethics, Wash Post, p.5.
11 See the dictum of Justice Megarry in Coco v A N Clark Engineers Ltd (1969) RPC 41 at 47.
12 Ronald Goldfarb (2009), In Confidence: When to protect Secrecy and when to require disclosure, 1st edition, Sheridan books, USA, p.1.
13 Angus H. Ferguson (2016). Should a Doctor Tell? The Evolution of Medical Confidentiality in Britain, Routledge. New York, USA, P. 1.
14 see the landmark case, Nathanson v. Klein. [186 Kan. 393, 409 (1960)]
15 Established specifically by Canterbury v. Spence, Cobbs v. Grant, and Wilkinson v. Vesey. See further explanation and citations by Faden and Beauchamp, 1986, pp. 32-33.
16 This third standard bears mention as an option with interesting features. It does not appear to have any formal status in any jurisdiction at present, but is often mentioned in accounts of the "doctrine" of informed consent.
- Citation du texte
- Melle Akame Winslow (Auteur), 2021, Medical Confidentiality in Cameroon. Origins, Justifications and Limits, Munich, GRIN Verlag, https://www.grin.com/document/1031650
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