Ethical traditions and limits in practice

In his book The ethics of communication, Michael Parker describes two major traditions to which the various approaches in ethics can be linked.5 One is consequentialism, in which the moral value of an action is based primarily on its consequences. A good deed is one that results in maximum good, taking into account the interests of all parties involved. Therefore according to this tradition, conduct such as using euphemisms, being ambiguous or evasive, omitting facts and even lying can be morally justified so long as it promotes the patient's well-being. The principle of maximising good explicitly involves the principle of non-maleficence, which implies avoiding negative consequences for the patient.

The second tradition, deontologism, is based on duty, as defined by moral law. An act is moral not because of its usefulness but because it fulfils the ‘You must’ imperative. Therefore actions have an intrinsic moral value of their own which are independent of their consequences. For example, some acts, such as lying, are inherently and intrinsically immoral and therefore forbidden, even if their consequences may entail a greater good or prevent a wrong. According to this ethical concept, it would always be wrong, or immoral, to lie to a patient regardless of the end results. Thus deontologism seems to favour unconditional application of the rule of informed consent.ii

When faced with certain complex clinical contexts, physicians wonder about the most appropriate ethical conduct. Is it now the time to tell this depressed patient about his cancer? Should I talk about this possible side effect or that risk since it could potentially lead the patient to refuse a medically necessary treatment? Should I discuss the prognosis when I know that it might precipitate an anxiety reaction? Should I withhold certain facts, or present them in a more favourable light? In other words, can I lie to my patient? The physician's judgement is based on clinical context as well as personal and professional values. Even if his convictions do not coincide with a formalistic deontologism, should the physician ‘convert’ to consequentialism to resolve the impasse? Is there a practical compromise between these two opposed ethical points of view? According to sociologist Max Weber,6 nothing and especially not reason (ie, scientific rationality) can turn us in favour of consequentialism or deontologism. Following Weber, these ethical positions are complementary, and only in concert do they produce the ‘true human being’.6 In terms of the conflict described between respect for the patient's autonomy based on the rule of informed consent and concern for beneficence, the physician must try to reconcile his obligations to the patient with the moral requirement to tell the truth.

A possible reconciliation between ethics and practice

In his article ‘Can deceiving patients be morally acceptable’, Daniel K. Sokol proposes a process that helps to decide if deceiving a patient is morally permissible.7 We believe this approach is useful in moving beyond the differences between consequentialism and deontologism. It is an introspective process that examines the different steps of a possible rationale to justify an exception to the basic principle of ‘You must not lie’ in the particular circumstances of a clinical encounter. In practice, it comes down to justifying the use of ‘therapeutic privilege’ either through lies, by deliberately deviating from what is considered as the truth and/or affirming what the doctor knows to be false, or through deception, by deliberately altering the truth about medical facts that matter for patient's decisions, without flagrant lying. Let us take as an example the discovery of a serious illness, such as cancer, in a severely depressed patient. Lies would include situations where the doctor knowingly hides the facts from the patient (Patient: ‘Is it serious, Doctor?’ Doctor: ‘No, you are worrying over nothing.’iii). Deception covers situations in which the doctor answers the patient's questions indirectly (Patient: ‘Is it serious, Doctor?’ Doctor: ‘Don't worry; we will look after you.’). Deception also includes intentionally using either complex medical jargon or its opposite, oversimplifying the information given. In both cases, deception occurs when the patient is unable to grasp the scope of the situation or is led to believe a misrepresentation of the situation. In the following text, we use the words ‘lies’ and ‘deception’, as previously explained, to avoid ambiguity.

The model we present builds on the method and arguments of Sokol, to which we have added our own insights. It is meant to help the systematic application of ethical principles by clinicians in daily practice. Furthermore, it is important to underline that this method is designed specifically for a medical encounter based on both a dialogue and a reflective process.

A process justifying the possible use of therapeutic privilege

It is important to consider the nature of the information presented to the patient. We suggest taking into consideration not only the nature of the information being transmitted, the urgency of the clinical situation but also the nature, seriousness and reliability of the information being withheld. What also needs to be determined is if the physician has acted responsibly when transmitting biased or altered information to the patient.8

Therefore, one must be sure that the information shared with the patient hides or significantly modifies the known facts (see Step 1 in Figure 1).

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Figure 1

Therapeutic privilege reflexive process.

If, after careful consideration, your answer to the first question is ‘yes’, then you must examine the reasons why you choose to depart from the facts. Is the decision not to present the facts accurately likely to increase the patient's well-being significantly or prevent significant suffering? (Step 2). The use of therapeutic privilege can be considered only if it is for the patient's good, and benefit. Expecting a foreseeable reaction of sadness, anger or despair from the patient that would make the physician uncomfortable or embarrassed, because he does not know how to respond, can never justify use of the therapeutic privilege option.9 In such circumstances, the physician would be acting out of personal interest. Valid reasons for using therapeutic privilege could include, among others:

1. To allow the patient to come to terms with events, both factually and emotionally;

2. To prevent decision-making at a time of relative incapacity precipitated by overwhelming anxiety or stress;

3. To prevent physical or psychological harm, for example, to prevent severe psychological distress;

4. To preserve hope;

5. To maintain the patient's long-term autonomy.

In answering these questions, the physician must put into perspective both the good and the potential harm caused. So, is the justification for modifying the truth likely to produce a greater good for the patient, or will it at least result in less harm? One must realise that when one resorts to therapeutic privilege, one is performing an action that: (1) denies the patient's right to know and does not respect the patient's autonomy; and (2) may result in the patient making poor decisions based on this altered information.

Not only must you have good reasons for this course of action, but you must also be confident that there is a reasonable likelihood that your patient will believe you. If what you say is not credible, you can expect it to have a negative impact such as the patient's loss of trust, and this is more likely to eventually result in greater harm. Therefore one must be sure that the benefits of withholding information outweigh the disadvantages. Does the benefit of transmitting ‘biased’ or ‘altered’ information surpass the detrimental consequences of denying a patient's right to know the ‘truth’? (Step 3). In addition to a loss of trust, the following are some other examples of negative consequences if the patient discovers the truth otherwise:

1. A loss of trust in the healthcare system;

2. The precipitation of emotional distress or shock: consternation, and discouragement;

3. A feeling of anger at having been betrayed;

4. Patient disappointment with no apparent benefit to compensate it.

Consequently you must be sure that there is no other way to proceed that would show greater respect for the patient's right to be informed and would avoid potentially negative consequences for the patient. In other words, is there any other possible course of action that would have greater respect for the patient's right to know? (Step 4).

If these steps support your view, you must ask yourself if your patient would agree with such a practice, particularly for him. Do you know what the patient's point of view is about the importance of the information you want to hide or alter? (Step 5). The evaluation of the importance of certain pieces of information may differ depending on who (physician or patient) evaluates. But if you believe that you understand the patient's point of view, after talking to the patient for example, then the legitimacy of the decision is improved. There is no simple indicator that will let you know if the patient would share your point of view. In the case of a chronic illness when you have the opportunity to see the patient repeatedly over a prolonged period of time, the easiest way would be to ask the patient clearly at the start of your relationship. The question could be phrased as ‘Do you always want to know everything about your condition?’ or ‘Will you allow me the freedom to decide when to give you news that could be unpleasant?’ Similarly, resorting to family or a person the patient trusts who can tell you about the patient's character and probable reactions can legitimise withholding information. But that is only possible if you have your patient's permission to discuss health matters with specific third parties. It is not unusual for the patient to authorise a trusted person to take part in discussions about his or her health. However, you must be careful as those close to the patient may adopt an overly protective attitude at the expense of the patient's autonomy.

Last, not only must you be comfortable with your decision, but you must also be confident that it is thoroughly based on legitimate arguments. A simple test of your conviction would be to ask yourself if you would be prepared to defend your decision publicly, before the College of Physicians and Surgeons or in court, in the event of a complaint (Step 6).

The use of this method presupposes that the doctor feels it would not be in the patient's interest to follow usual procedure. In a practice setting, this must remain an exceptional situation. This process should not be considered an option for every medical encounter. Thus, for example, in a context free of all ambiguity, during an occasional consultation for ‘minor’ problems such as bronchitis, urinary tract infections or even appendicitis, providing information on diagnosis and treatment entails no particular requirements. In the course of these consultations, providing information is a one-time event that will not likely recur. Deceiving the patient would be unacceptable if rectification of the information is not possible sooner or later. In the context of an on-going medical follow-up for a more complex problem such as a chronic or terminal illness, providing information is no longer a one-time event. In those circumstances, opportunities for dialogue and encounters increase and provide an occasion to communicate information gradually, make adjustments and modifications, and repeat important information in different ways. Revealing diagnoses such as diabetes, rheumatoid arthritis and cancer involves serious issues, including a radical change in the patient's perception of his future. The doctor can often anticipate the patient's reaction to the communication of such diagnoses. Shock, anger, confusion and any other emotions brought on by the news affects the patient's ability to absorb, concentrate and reason. Therefore, providing information about a diagnosis and the proposed treatment obliges the doctor to make a judgement about the best manner in which to proceed.

Therapeutic privilege and the context of a dialogical and reflective process

Impersonal application of the concepts of autonomy and informed consent without regard for the context distances an act from its true aims. A doctor cannot bluntly reveal an important diagnosis or deliver information in bulk under the pretext of truth, efficiency or a lack of time. The doctor should bear in mind important extrinsic factors that are likely to require adjustments when dealing with the patient as a whole person. Cultural aspects, among others, still play a very significant role with regard to what should and should not be divulged to the patient.10 In addition, research shows poor retention and comprehension of information given during a single interview, with only about 50% of the information retained.11 Furthermore, the patient's effort to understand resembles more a process rather than a discrete action, especially when faced with a serious diagnosis. In addition, the Canadian Council on Learning12 estimates that 55% of the Canadian population do not attain a health literacy level that would enable them to obtain, process and understand basic health information and access the services they need to make informed decisions about their health. These examples represent a very incomplete picture of factors limiting patient understanding of information that physicians must take into consideration when presenting health-related facts. However, by respecting a patient's progress through the complex decision-making process that takes into account each person's abilities and limitations, the doctor–patient relationship can become a tool to involve patients in a dialogue about their health and encourage them to become active participants in the process of understanding and managing a treatment strategy.

Thus physicians should be encouraged to adopt a ‘pragmatic’ approach that we believe is particularly suited to chronic illnesses. Information should be provided in a context that is adapted to each patient. First, the physician begins the dialogue about diagnosis based on the urgency of the situation, of course, but based also on the patient's emotional state and cognitive abilities at the time. Later, when the patient is ready, the doctor then adds new elements into the discussion, bearing in mind the experience the patient has acquired since the last conversation. Thereby the doctor initiates a dialogue with the patient that is intended to expand the patient's understanding of his illness (reaching the ‘truth’). Each new encounter encourages an on-going decision-making process and the diversity of the exchanges allows for a more complete understanding of the illness and consequently supports acceptance and continuation of treatment over time, which can often be difficult. Deliberately delivering relevant information at the most appropriate moment based on the patient's receptiveness does not betray the patient's ‘right to the truth’. The doctor adopts a dynamic process that not only provides information, but also guides the patient, helps with decision-making and supports the decision. However, this process does not exclude unusual situations where, even though there is no obvious incapacity, the doctor feels the patient is incapable of properly assimilating the information. Withholding the truth or part of the truth, omitting or altering certain significant pieces of information, represents a breach of the normal rules of conduct. Then the pragmatic process carries reflection, with the patient, beyond the usual framework. At such times, the reflective model presented here can give the doctor the support required to think through and resolve the dilemma.