Ethics

Dead man talking

Your patient had an affair. Should you reveal his secret to his spouse after his death?

By Dr Mark Bernstein

THE DILEMMA
My patient Larry was married and a generally healthy guy in his forties. A few years ago, I treated him for a social disease he caught while in a brief affair with another woman. Larry died this year of unrelated causes and his life insurer is disputing the claim and reviewing his medical file. His wife, as next of kin and beneficiary, also wants a copy of his medical file. But Larry, even in death, might prefer that his wife not read certain parts of his records. What should I do?

This question was sent to us by a doctor who requested that his name be withheld as the case is still under review.

THE DELIBERATION
The Public Hospitals Act Of Ontario articulates fairly clearly that the personal representative of a deceased person may access his/her medical records. This law is likely the same in other provinces as well. The personal representative is generally the executor of the decedent's will, who is the surviving spouse in many cases. So, Larry's hospital records would legally be available to his wife as are his private physicians' office charts. But sometimes the law and ethics don't see eye to eye. So, irrespective of what the law states, let's look at it from an ethical perspective.

First, let's examine the dilemma from Larry's wife's point of view. Protecting her from harm is a desirable principle to uphold. She's just suffered the loss of her husband -- why should we add to her grief by providing her with the disturbing information that he'd been unfaithful? You could argue that this position places value on the principles of beneficence and nonmaleficence to Larry's wife ahead of her autonomy to have access to information. But it could also be viewed as paternalistic. Extenuating circumstances may take precedence in this particular case if, for example, the sexually transmitted infection Larry was treated for could have spread to his wife. In this circumstance, you could argue strongly that it would be in her best interests to have this knowledge.

Now, let's look at it from Larry's point of view. Do decedents have rights? As far as we know, dead people have none -- except that their physical remains be treated with dignity and respect. However, during his life, Larry would have had the right to deprive his wife of access to his medical records. And the doctor, honouring the confidentiality of the doctor-patient relationship, can withhold the information unless the patient gave express permission. Why should the patient's rights be lost just because he can no longer speak for himself? Disclosing his personal secrets seems to violate the principle of justice and seems inherently unfair. You might counter by saying that, according to the law, a spouse has the power to have his/her partner's body physically violated to procure organs for transplantation or for autopsy. So what's the big deal about accessing his/her medical records? The difference is that benefit accrues to others from organ donation or autopsy with no harm to the decedent's survivors or to the memory of the loved one.

THE DECISION
In the final analysis, the law states that Larry's wife may have access to his medical records. I would humbly submit that this may be but one of many examples where there may be a mismatch between the law and what's ethical. I believe in the right of a person to be protected from gratuitous harm or pain that has no obvious, foreseeable benefit. I also believe that the right of a person to keep some things private should survive his/her death. Only if the decedent's medical information could have a direct impact on improving the health and welfare of the surviving spouse should those records be released. Let's allow people's personal mistakes and secrets to remain theirs forever and be buried with them. Doctors should not routinely have to release a decedent's medical records to surviving family and loved ones unless specific circumstances prevail.

Like many ethical dilemmas we encounter, there's usually no single right or wrong answer, only opinions. This is mine.

Dr Mark Bernstein is a neurosurgeon with a strong interest in ethics. He recently completed a master's in bioethics. His column appears in alternate issues. Readers are invited to submit bioethical challenges for his consideration and possible publication.