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Contractual obligations and the sharing of confidential health information in sport
  1. L Anderson
  1. Ms L Anderson, Bioethics Centre, University of Otago, PO Box 913, Dunedin, New Zealand; lynley.anderson{at}stonebow.otago.ac.nz

Abstract

As an employee, a sports doctor has obligations to their employer, but also professional and widely accepted obligations of a doctor to the patient (in this case the individual team member). The conflict is evident when sports doctors are asked by an athlete to keep personal health information confidential from the coach and team management, and yet both doctor and athlete have employment contracts specifying that such information shall be shared. Recent research in New Zealand shows that despite the presence of an employment contract, there appears to be a wide range of behaviours among sports doctors when an athlete requests that information about them be kept from team management. Many seem willing to honour requests to keep health information about the athlete confidential, thereby being in breach of the employment contract, while others insist on informing team management against the wishes of the athlete. There are a number of potential solutions to this dilemma from forcing doctors to meet their contractual obligations, to limiting the expectations of the employment contract. This paper suggests that at times it may be appropriate to do both, making the position of the doctor clearer and supporting the ability of this group to resist pressure by coaches and management through having a robust code of ethics.

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As an employee, a sports doctor has obligations to their employer, but also professional and widely accepted obligations of a doctor to the patient (in this case the individual team member). The conflict is evident when sports doctors are asked by an athlete to keep personal health information confidential from the coach and team management, and yet both doctor and athlete have employment contracts specifying that such information shall be shared.

The proper response to requests to keep health information confidential in the face of contractual obligations was an issue that emerged in recent research carried out with 16 sports doctors working with elite athletes in teams in New Zealand. When requested to by an athlete, most doctors preferred to withhold health information from the coach and team management, and justified their actions by the need to be viewed as a confidant by the athlete, or a perceived over-riding responsibility to the athlete.

Many would argue that athletes entered such contracts voluntarily and should comply with contractual demands rather than reneging when the terms no longer suit. It is hard not to sympathise with this view, but the situation is more complex than it might appear. When health information relevant to team management arises during a consultation between sports doctor and patient, then both doctor and athlete are obliged by the contract to inform the coach. If the athlete requests the information to remain confidential, they are in breach of the contract. The doctor must decide how to respond: either (1) to honour their own employment contract by sharing health information, thereby ignoring traditional obligations and expectations of confidentiality within the doctor–patient relationship; or (2) to maintain confidentiality and breach the contract. This difficulty is compounded by the long history of medical culture that holds professional autonomy and service to the patient in such high regard. Many doctors realise that sharing information without consent may have significant repercussions on the doctor–patient relationship and also feel reluctant to share information to the detriment of the patient.

The dilemma raises some important questions. The first relates to the ability of the doctor to provide good clinical care where divided loyalties of such a nature exist. The question is: do employment contracts such as those that exist in sports medicine impede the doctor in providing quality care? The evidence is that many doctors ignore their contractual obligations, so are contracts that oblige doctors to forgo their traditional obligations making inappropriate demands? The third question pertains to the wide range of behaviours involved in doctors’ responses to their contractual obligations. These discrepancies indicate that there is a lack of clarity from the profession about the appropriate response to contractual obligations where they conflict with other obligations. This article will explore these issues.

METHODOLOGY

The data forming the basis for this article emerged from a wider study of the ethical concerns of sports doctors. The wider study involved semistructured interviews with 16 sports doctors working with elite athletes and teams in New Zealand. Participants were recruited with assistance from a senior academic sports doctor and a snowballing technique whereby participants suggested other potential participants who were subsequently approached. Each interview lasted about an hour and took place in the doctor’s own clinic or when the doctor was travelling with their team. The interviews were transcribed, returned to participants for checking and then analysed using a grounded theory approach. Grounded theory is a method of qualitative analysis that allows themes to emerge from the data and is particularly appropriate for settings where there is little previous research. The sensitive nature of some of this material required serious attention to confidentiality of participants and the protection of their patients. This study was approved by the University of Otago Ethics Committee.

FINDINGS

Participants were asked how they would respond if they were asked by an athlete not to pass on personal health information to coaches and team management, and yet there was an expectation that such information would be passed on. Five doctors stated they would pass information on to coaches, management and the governing body, arguing that in doing so they were acting in accordance with the conditions of their employment. One was unsure how they would respond in such a situation; however the remaining 10 stated that they would not pass information to team coaches and management if requested not to by the athlete. (Waddington et al explored the issue of confidentiality with sports doctors and physiotherapists in the UK; the major concern from their study was that there was no commonly held code of ethics that governed the sharing of personal health information about a player.)

One of the five doctors willing to share health information stated:

If they’ve [the athlete] signed into a situation where they’re saying that I give free access of my information to the coaching staff and whatever … and they understand that I’m part of that structure, that you have an obligation to pass on information, then if they want it to be private they have to go to another doctor. That’s my feeling about that.

The relevance of the information to the coach and team was important; doctors were generally happier to respect confidentiality when the information did not concern the athlete’s ability to play but when the information related to a health problem that did affect the athlete’s ability to play, doctors would generally inform the athlete of the benefits of telling the coach and try and persuade them to do so. The following quotation from one participant sums up this approach:

Well, it’s very tricky in that situation. It depends what it is. Most of them know they’ve signed those [contracts], and if it [the injury] affects the team it’s a problem. Sometimes it doesn’t affect how they play and it’s secondary really, and they can carry on playing and they still play well, and all the rest of it… You certainly cannot divulge that information. And if it does affect them playing, then that’s a very different situation, and ... and you really have to go over with the person and try and get them to divulge it [small laugh] themselves, really, to someone else, like the coach or the manager of the team. And nine times out of ten they will. And if they still really don’t want to, and it’s affecting their play, then you still can’t divulge the information.

Other doctors are happy to give the coach limited information and in this way reach a compromise with the patient. One doctor put the matter like this: “well it doesn’t have to be all the information, it could be enough for management to make a decision for you, together with you. So yes, I think there are compromises.” So some doctors were willing to downplay injuries and illnesses so that the athlete could get access to services while still retaining an element of confidentiality.

The 10 who were willing to go along with the athlete and keep information confidential mainly did so because they wanted to be viewed by athletes as a confidant. In sum, most doctors set the obligation to confidentiality at a higher level than contractual duties.

CONTRACTUAL RELATIONSHIPS IN SPORT

Sports doctors and athletes involved in elite and professional teams commonly have an employment contract with the sports’ governing body that makes a number of health-related demands. (All but one research participant had experience with contracts.) While contracts may differ between and sometimes even within sports, broad themes are common to many of them. The elite athlete with a contract to play for a particular team will commonly be obliged to:

  • attend the doctor specified;

  • answer truthfully any question put during the course of a medical examination;

  • reveal all relevant medical information to that doctor;

  • report all injuries;

  • undergo specified rehabilitation as suggested by that doctor; and

  • agree to have medical reports provided to the employer on request.

The employment contract between the doctor and the governing body may include the following demands on the doctor to:

  • provide appropriate diagnosis and treatment of team members;

  • keep non-playing time to a minimum by implementing quality care;

  • report injuries to management as directed by the contract; and

  • maintain records and make these available to management.

While there is often an employment contract between doctor and employer, and one between athlete and employer, the relationship between the doctor and the athlete is commonly more traditional in its form, even though it will be influenced (to some degree) by the contract each has with their employer. If the influence of the contracts is not made explicit, there is potential for patients to feel aggrieved and possibly harmed if they are expecting the doctor to maintain confidentiality, when contractually the doctor is required to disclose confidential information.

Doctors and athletes who sign a contract specifying disclosure of health information and who then do not comply with such disclosure could be considered not to be acting in good faith. Some doctors involved in this research were well aware of that and said they would delete such a clause during negotiation of the contract if they felt unable to comply. Many athletes, however, sign such a contract, perhaps anticipating that nothing could possibly go wrong, or because they are overawed by getting a contract. Athletes may also be getting poor or no legal advice and are therefore not fully aware of the practical implications of what is expected of them contractually.

ARGUMENTS FOR AN ENVIRONMENT OF FULL DISCLOSURE IN SPORT

There are, of course, very good arguments for having an environment of full disclosure within a team. First it enables athletes to get the kind of medical and rehabilitative attention they need. But the most compelling reason is that a coach requires a high level of health and fitness from each individual athlete to fulfil their employment obligations. Team planning requires that the coach is kept informed of the health status of each individual athlete because they need to know who is fit, who is injured and when they will return so as to field the fittest team. (After all, winning is what is important to coaches, team management and also athletes.) But notice that winning has both short- and long-term aspects to it. The coach, team management and athlete may have an interest in not allowing the short-term success to prejudice the long-term interests of both the athlete and the team.

Team success has secondary benefits to coaches and management, impacting on their own career and financial future. Given the rapid turnover of coaching staff and management if a high-profile team is unsuccessful, coaches themselves can be under a great deal of pressure to field a winning team.1 (p122).

EXPECTATIONS OF THE MEDICAL ENCOUNTER

Part of the problem may be the expectations of any patient about an encounter with their doctor. Bernstein et al claim that:

In most medical encounters, several assumptions hold true. The first is that the physician works exclusively on behalf of the patient. Second, the patient and doctor are assumed to share the common goal of improving the patient’s health. Third, the doctor–patient relationship is private. These three assumptions may not apply in sports medicine.2 (p309)

Whether doctors can ever work exclusively on behalf of the patient (as described by Bernstein) is debatable in that there are always other patients to consider, or obligations to government agencies or insurance companies funding the patient’s care. However, it is understandable that athletes have such expectations when visiting the sports doctor in that the expectations people have of interactions with their doctor can be deeply entrenched. Doctors themselves have cultivated that ethos with codes of ethics that clearly indicate that the patient shall be their central concern. One author suggests that the athlete should know that the sports doctor has other obligations, and that any error of perception is the athlete’s. He states that:

… a professional player should not be confused about the position of the team physician, or make the mistake of treating him in every respect as a normal private physician. If he does so, he may well end up in a problematical position; but he will do so by his own fault. When he finds himself, as a result, in trouble over (say) his contract or his use of illegal drugs, it will at that stage be too late—and also quite unfair for him to complain that the physician’s position was ambiguous.… Everyone knows that a football team physician has multiple loyalties to deal with; and that, on occasion, the team’s standing and performance may well be a “higher loyalty,” which justifies his treating a player’s confessions with a somewhat lesser degree of confidentiality than is demanded in a normal family practice. So what else is new?3

Toulmin lays the problem of false expectations clearly at the door of the elite athlete who assumes that the team doctor will always act in their own best interest. But things are not that simple, given that 10 doctors in my research would keep information confidential (indicating that many of the doctors share the expectation with the athlete and contribute to the ambiguity).

Confusion on the part of the sports doctor

Tom Murray remarks:

A moral problem arises when the employee holds the false expectation that he can trust the company doctor to look out for the employee’s interests in the same manner and to the same extent as his personal doctor would. The problem is exacerbated when the company doctor either encourages this false assumption, or fails to dispel it firmly and unequivocally.4 (p829)

Many sports doctors encourage the misconception as is shown by the fact that 10 of the 16 participants indicated they would not hand over personal health information if confidentiality was requested by an athlete. Their reactions may be directly related to the origins of sports doctors as a group in that nearly all of the interviewees had previously been general practitioners, a fact that may have made it more difficult for them to go from acting as the agent of the patient to being an agent of the sporting corporation.

Lack of clarity from the profession

The development of codes of ethics from specialist medical bodies does not always resolve the problem. For example, Murray also notes that:

This problem is further compounded when the leaders of the profession, … insist that the well-being of the employee is their principal, or even sole concern…. The refusal to acknowledge, let alone dispel, this misconception simply perpetuates a dangerous ambiguity.4 (p829)

Codes of ethics in sports medicine commonly state that the patient must be the primary concern, often without acknowledging the problems arising from third parties seeking and expecting access to personal health information, thus perpetuating “a dangerous ambiguity.”

CONFIDENTIALITY IN THE DOCTOR–PATIENT RELATIONSHIP

Confidentiality in the doctor–patient relationship is important in part because of its therapeutic benefits. Campbell et al state that “without access to the patient’s body and to a wide range of personal information about the patient, it is not possible either to achieve an adequate diagnosis or to provide appropriate treatment”5 (p27). An effective working relationship between doctor and patient may involve intimate details and access to information usually kept hidden from others. Given the highly sensitive nature of much of the information revealed during a medical encounter, individuals are unlikely to be open with their doctors unless they are sure safeguards are in place to ensure it will be kept confidential. Appropriate management of personal information is therefore important to good patient care.

In 2000, the British Olympic Association (BOA) released a position statement on athlete confidentiality reinforcing the professional duty of confidentiality for doctors, physiotherapists and other health providers in sport. The BOA wanted to remove the pressure from medical staff by making coaches and others aware “of the limitations on communication imposed by this duty of confidentiality”6 (p71). They go on to say:

The governing body/coach may feel that members of the medical and scientific support team are contractually obliged to keep them fully informed. However, it is unreasonable to ask medical and scientific support staff to sign such a contract with a governing body, since if an athlete requests confidentiality they will have to either break the contract or be in breach of their own profession’s code of conduct.6 (p72)

According to the BOA, if team management wish to discuss an athlete’s health information, consent must be obtained for each disclosure, and the athlete must know who will be present for such a meeting. These guidelines also state that a contract signed by an athlete permitting the sharing of confidential information with team management does not mean that all claims to confidentiality at future points can be over-ridden. Athletes retain the right to refuse to share information with team management and contracts that call for a doctor to breach their own professional code may be unreasonable, since meeting the contract could be in breach of their code, and meeting the code may put the doctor in breach of the contract.6

PROPOSED SOLUTIONS TO DIVIDED LOYALTIES DILEMMAS AND CONFIDENTIALITY

Limiting the expectations of the contract

Given that many doctors in this research were willing to breach employment contracts, one way of protecting the doctor from unreasonable pressure and safeguarding the patient is to limit the expectations under the contract.

Getting consent for each individual disclosure is in accordance with the suggestions of the BOA, and it could be argued that a blanket demand for unspecified information through a contract signed at the beginning of the season is excessive and unrealistic.

Support for the policy of the BOA would preserve the traditional understanding of the doctor–patient relationship. Such support would require sports governing bodies to acknowledge the conflicting obligations of doctors and to remove any clause from an employment contract that has the potential to force their allegiances in an unprofessional direction. The proposed solution goes some of the way but on its own does not cover all the work that a sports doctor might legitimately engage in.

Supporting the contract

Support for the contractual demands to provide health information would be another approach. It is clear that the respondents who were willing to inform team management about an injury without athlete consent recognised an over-riding obligation to the contract and to their employer. Any doctor working in that way would need to make explicit to the athlete that they are no longer working solely as their agent and that information will be passed on. Such so-called “Miranda” style warnings (named after the warnings used by police in the US during arrests to warn individuals of their rights) are meant to make explicit the obligations that might limit a doctor’s ability to be an agent for the patient. Murray points out that such a declaration could make it difficult for the doctor and patient to establish a relationship of trust, and therefore provide effective treatment.7 An erosion of trust could mean the athlete does not inform the doctor of potential problems resulting in risks to their own health (for example, where there is a head injury) and the health of others (in cases of blood-borne infection). There are also situations where an athlete may not appreciate the significance of a symptom and, on discussions with the doctor, discover they have some problem that the doctor is obliged to reveal. Miranda style warnings are therefore less than ideal.

A response from the profession

The problem of confidentiality in the sports employment structure could also be eased by clearer guidance from the sports medicine profession perhaps by modifying codes of ethics. It could be important to state in a code that sports doctors must not act in a way that is contrary to the code of ethics of the professional group to which they belong and so direct doctors to place the obligations of their code first. A code of ethics should also insist that a sports doctor must enter into any employment contract in good faith, and not sign a contract where they consider that they will not be able to uphold the contractual obligations.

A robust code of ethics for sports medicine should accommodate the breadth of activities of a sports doctor. A useful distinction can be made between a doctor who is acting in a therapeutic role and a doctor acting in an assessment-only role. When a sports doctor is providing treatment or even advice, then a doctor–patient relationship exists with the obligations that entails. The one-off assessment of patients should be regarded differently. The most common example of an assessment-only role is (1) when a patient is transferring between clubs and a medical assessment is required, or (2) if a patient is selected for a tour or event, subject to passing a medical/fitness assessment. Here the relationship between the doctor and the patient is not therapeutic and can be compared with that of a doctor who acts on behalf of the insurance company. In assessment-only situations, the patient must be clear about the role of the sports doctor and that relevant information will be shared with sports management. There is always the risk that athletes may hide medical information or signs and symptoms from the doctor carrying out the assessment, but just as insurance cover may be void if patients do not inform the company of relevant information, comparable penalties could apply in sport.

When employed in a therapeutic role, the sports doctor should recognise that their duty to the patient is the first concern, and contractual and other responsibilities are secondary. The sports doctor should maintain patient confidentiality (with the usual exceptions) and seek permission from the patient prior to each disclosure of health information to a third party. The obligation to confidentiality should not be over-ridden by a health information release form signed by an athlete at the beginning of the season. A commitment to confidentiality does not prevent the doctor from informing the athlete of the benefits of sharing health information with team coaches and management, and indeed encouraging such sharing. However, in those few cases where the athlete was still adamant that information not be shared, then this should be respected.

When employed in an assessment role, the sports doctor should inform the patient of their role prior to the assessment. Therefore, the patient should be informed that relevant health information will be passed to a third party, and this should be documented. Ideally, assessment and therapeutic roles should be kept separate, and a doctor would not take on an assessment role if a therapeutic relationship already exists with a patient. However, it must be acknowledged that there may be certain situations (such as a shortage of sports physicians) that could make that difficult.

CONCLUSION

This research has identified confidentiality in the sporting context as an issue of concern for sports doctors. The wide range in responses to contractual demands is in itself indicative of the need for clarity in this area. For doctors to insist that employers modify their demands will require some concerted and coordinated action by the profession, and it may be that developing robust codes of ethics might be a solution to confidentiality concerns.

Acknowledgments

The author acknowledges the assistance and supervision of N Peart, University of Otago. Grateful thanks also to W Alcock, A Moore, D Evans, G Gillett and D Gerrard.

REFERENCES

Footnotes

  • Competing interests: The author has been involved in rewriting the Australasian College of Sports Physician’s Code of Ethics.

  • Funding: The author acknowledges the University of Otago Research Grant for this project.

  • Ethics approval: This study was approved by the University of Otago Ethics Committee.

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