AMA Journal of Ethics^®

Therapeutic Privilege

Opinion 8.12, “Patient Information,” explains that it is a “fundamental ethical requirement that a physician should at all times deal honestly and openly with patients” and that “patients have a right to know their past and present medical status” [1]. Opinion 8.082, “Withholding Information from Patients,”elaborates that “withholding medical information from patients without their knowledge or consent is ethically unacceptable” [2]. However, when a physician believes that disclosing certain information could be harmful to the patient, the physician may delay disclosure to a more suitable time, provided there is a definite plan for communicating that information to the patient later. According to this opinion, physicians are encouraged to honor patients’ requests not to be informed of certain medical information or to “convey the information to a designated proxy, provided these requests appear to genuinely represent the patient’s own wishes” [2].

Managing Conflicts among Family Members and Patients

Although Opinion 10.016, “Pediatric Decision-Making,” generally refers to medical decisions for younger patients, the guidance regarding conflict among family members can be useful in other situations. The opinion states that “when disagreements occur, institutional policies for timely conflict resolution should be followed, including consultation with an ethics committee, pastoral service, or other counseling resource” [3]. Drawing upon the best interest principle—the principle that decisions ought to be based on what’s in the best interest (however that’s defined) of the patient—is one way to help facilitate decision making.

For conflicts among family members and patients regarding transplantation specifically, Opinion 2.15, “Transplantation of Organs from Living Donors,”outlines the steps that should be taken to determine if a donor candidate is suitable for the procedure [4]. Because living organ donors are exposed to surgical procedures that pose risks but offer no physical benefits, they require special safeguards and are not, generally, ethically required to participate in organ donation.

Involving Family Members in ICU Decisions

Opinion 2.037, “Medical Futility in End-of-Life Care,” outlines a seven-part “due process approach” to assessing medical futility in specific cases:

(a) Earnest attempts should be made in advance to deliberate over and negotiate prior understandings between patient, proxy, and physician on what constitutes futile care for the patient, and what falls within acceptable limits for the physician, family, and possibly also the institution.

(b) Joint decision-making should occur between patient or proxy and physician to the maximum extent possible.

(c) Attempts should be made to negotiate disagreements if they arise, and to reach resolution within all parties’ acceptable limits, with the assistance of consultants as appropriate.

(d) Involvement of an institutional committee such as the ethics committee should be requested if disagreements are irresolvable.

(e) If the institutional review supports the patient’s position and the physician remains unpersuaded, transfer of care to another physician within the institution may be arranged.

(f) If the process supports the physician’s position and the patient/proxy remains unpersuaded, transfer to another institution may be sought and, if done, should be supported by the transferring and receiving institution.

(g) If transfer is not possible, the intervention need not be offered [5].

These steps can also be used to facilitate involvement of family members in ICU decision making [5].

Opinions 2.22, “Do-Not-Resuscitate Orders” [6], and 2.191, “Advance Care Planning” [7], both discuss benefits of considering various life-sustaining interventions prior to the occurrence of a traumatic incident. Both opinions maintain that patients should do their best to make their wishes known, but, in the absence of that knowledge, a formally designated surrogate decision maker (appointed before an event that incapacitates the patient) or next of kin or close family member should make decisions based on the best interest principle or the substituted judgment standard—the standard by which a surrogate does his or her best to imagine and formulate, as accurately as possible, which decision the patient would make if he or she had capacity to do so.

Opinion 5.05, “Confidentiality,” states that “the physician should not reveal confidential information without the express consent of the patient, subject to certain exceptions that are ethically justified because of overriding considerations” [8]. Emergency situations are generally considered to be such exceptions—times at which it is ethically appropriate to disclose information to someone, such as a family member or someone designated by the patient (in cases in which a designee is known), who can make medical decisions for an incapacitated patient.