3-10. CONFIDENTIAL AND PRIVILEGED COMMUNICATION
a. Protecting Information Divulged With the Physician-Patient
Relationship. Information transmitted by a patient to his or her physician in
consultation or treatment is protected under confidentiality laws, as a privileged
communication. (Information transmitted to a physician outside the context of the
professional relationship, i.e., on the golf course prior to the existence of a physician-
patient relationship would probably not be protected by the confidentiality laws.)
privileged (confidential) communication: communication between parties in a
confidential relationship (physician-patient, lawyer-client, clergyman-layman,
husband-wife). The confidence is transmitted under circumstances implying it
shall forever remain a secret.
b. Legitimate Breaching of Confidence. The recipient of such a confidence
cannot disclose the information as a witness (thus, breaching the confidence) unless
required to by law. A judge may rule that the information is not confidential or that there
is an overriding state interest that supersedes the patient's right to confidentiality.
(1) Factors to consider. Situations in which a breach of confidentiality may
be justified usually involve the prevention of harm to others. Several factors must be
considered. Which risks to others (risk to life, physical health, property, or reputation),
if any, outweigh the rule of confidentiality? How probable and serious is the risk of
harm? If the probability of harm is high and the consequences serious, there may be
(2) Example 1. Consider the case of a soldier who confides to a military
chaplain his intention to kill a particular named individual. The chaplain learns that the
soldier, in fact, has the means to carry out the act. If there is intent, a real risk to a
particular named individual, and the means to carry out the act, a judge may rule that
the information is not privileged and that it is needed to show premeditation. There are
also legal and moral obligations to divulge confidential information when necessary to
report certain contagious diseases, gunshot wounds, child abuse, etc. There may be a
consequences are serious. Generally, however, there is no reason to break a
confidence when there is a morally and legally acceptable alternative to disclosure.
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