Informed consent, confidentiality and privilege in psychiatry: legal implications.

There appears to be a need for understanding of certain basic legal concepts whenever informed consent. confidentiality. and privilege are discussed in medicolegal context. Informed consent to treatment is based on an "intelligent understanding" by the patient. To attain to an intelligent understanding. the patiellt·dient must be mentally capable of forming an independent opinion based on his awareness of necessary facts. implications. and information afforded him. Thus. an unconscious emergency patient is incapable of forming an intelligent understanding due to his unconsciousness. Therefore. the law. in such an instance. implies his consent to emergency treatment provided a life-threatening situation is indeed present. Furthermore. the courts have universally viewed with jaundiced eye the "disclosure" alleged. doubting that doctors give patients enough information. and have paid scant attention to the "consent" element involved because consent connotes the dual ingredients of awareness and assent. It thus becomes elementary that there must be understandable communication between the physician seeking the authority by consent and the person entitled by law to grant that permission. The patient must understand the vocabulary used by the physician. for he cannot consent to that which he cannot comprehend. So. too. deceit. fraud, or coercion in obtaining of the consent to treat will be just cause for such a consent to be vitiated by the court. Refusal to treat or to remain the patient's physician; belittling the side effects. the reactions. or the length of treatment; or stating that the chemotherapy or other treatment is something other than what it is in fact. are all examples of prohibited practice of coercion. fraud. and deceit. Confidentiality arises out of ethical traditions of the medical profession because of the need for privacy in communication between the physician and patient. Thus. those matters of informa tion obtained by the physician while acting in his professional capacity with his patient must be kept secret. This ethical tradition stems from the Hippocratic Oath and is a requirement of most medical licensing statutes. Privileged communications. on the other hand, exist by virtue of statutes enacted by the various legislative bodies of the several states. Parenthetically. it should be noted. 36 states have privilege statutes in addition to case law in which confidential communications are recognized. Whereas the attorney-dient privileged communication was recognized at common law (by case decision). no such sanction appeared in the profession of medicine until 1776 in a bigamy trial involving the Duchess of Kingston. A surgeon who had attended the defendant Duchess was asked whether she had told him of a previous marriage. and the court ruled the question had to be answered. stating: