Islamic Center of Southern California

The Arguments of Islamic Law Rulings on Recent Medical Issues

Topic Fourteen

Confidentiality in the Medical Profession

Definition

A physician gets to know many of the personal secrets of a patient of his, which even the patient's spouse may not know. Some of these secrets may relate to other areas, such as religion, morality, and the law. Some might relate to other individuals, such as the patient's fiancé(e), spouse, or guardian, or any other person closely-associated with the patient. A question arises as to the extent of the physician's right and responsibility to disclose or keep such secrets.

The Legal Position Chosen by the IOMS and Its Argument

On the subject of confidentiality in the medical profession, the IOMS - in its third seminar, the Islamic View Concerning Certain Medical Practices, held in 1987 - endorsed the position taken by jurisprudence (fiqh) scholars in their definition of a "secret," and the subject as it generally applies to all professions. It also supported the majority opinion that considers that, as a principle, violating professional confidentiality is unlawful, although it is permitted in exceptional cases.

The recommendations of the third seminar state the following:

1. a. A secret is what is communicated by one person to another with a prior or subsequent request to keep that communication to himself. This includes all methods that usually signify a request of keeping something secret or that is supposed, by convention, to be kept secret. It also includes the privacy and defects of a person which he hates to be revealed to others.

b. Secrets are trusts, and the person they are entrusted to is obliged to keep them in accordance with the stipulations of Islamic Law. This is also called for by gallant behavior and by the ethics of dealing with others.

c. In principle, the disclosure of a secret is prohibited and calls for religious, professional, and legal discipline.

d. The obligation of keeping secrets is stressed in the case of a profession, such as medical professions, where disclosure disrupts the profession itself, since people who need advice and assistance approach the professionals invoved and reveal to them all details that help them to perform their critical tasks. Such details may include secrets a person usually keeps from those closest to him.

2. Exceptions to the obligation to keep a secret are the cases in which keeping it results in greater harm to the person involved than revealing it and the cases where the disclosure brings a benefit that carries more weight than the harm it causes. The latter cases are of two types:

a. Cases in which a secret must be disclosed in accordance with the rule of "allowing the lesser harm" or the rule of "realizing a general interest," which calls for tolerating individual harm to avoid general harm when the latter can be avoided only by tolerating the former. There are two types of such cases: (1) situations that involve avoiding social harm and (2) situations that involve avoiding individual harm.

b. Cases in which a secret may be disclosed because of what it involves of (1) realizing a social benefit or (2) avoiding general harm. In these the purposes and priorities of Islamic Law must be observed, namely the preservation of faith, life, reason, offspring, and wealth.

c. Added to the above are cases where the patient accepts the disclosure of his secret, which means that he gives his consent, as it is he who has the right to waive his demand (of keeping it secret).

d. The exceptions relating to the cases when disclosure is obligatory or permissible should be incorporated in the bylaws of medical practice, and other laws. They should be stated clearly and inclusively, with details of how they should or may be disclosed and to whom. Concerned authorities should undertake sufficient education about these exceptions.

3. A Muslim physician - who shoulders part of the public responsibility in his capacity as reformer, counselor, and prevention factor to ward off any harm before it takes place - should make an attempt, before resorting to one of the exceptions regarding secret disclosure, to avoid it by exercising his role as a reformer with the hope of protecting patients and others who are exposed to some hazard. He can do so by outlining to the patient the straight way for rising after his fall and thus escape the dangers involved. In doing so the physician would be encouraging the patient's self reform, and he (the physician) will not lack the proper arguments that involve no denial of rights or fabrication of facts. Islamic Center of Southern California