Case L: The Medical Secret

A recent work on "Social Diseases and Marriage" (Prince A. Morrow, M.D.) quotes the following case: "The father of a young woman asks information relative to the health of a young man (your patient) who is engaged to his daughter. 'I wish to ask, under the seal of secrecy, certain details as to his malady. I beg you to say whether I can or can not accept him as a son-in-law. I hope that you will take into consideration the embarrassment of a father placed between the desire to give to his daughter the husband of her choice and the fear of the results the marriage may have, if the hints that have been given me are unfortunately true.' In the case given above should the physician, entrenching himself behind the Hippocratic oath and the proscriptions of the law, guard an absolute silence, or, only interrogating his conscience, should he make it the judge of the secret confided to him, to divulge it, or be silent, according to circumstances?"

Answer.—Secrets committed to professional men, v. g., physicians, lawyers, etc., by reason of their profession are known in theology as "secreta commissa rigoroso." They impose an obligation, arising from strict justice, ex stricta justitia, and, therefore, in a grave matter they bind under pain of mortal sin. They impose a graver obligation than "secreta naturalia," or "secreta promissa." These latter are binding, ordinarily, "ex fidelitate tantum." The "secretum commissum rigorosum" binds under circumstances where otherwise the secret would have to be revealed, because the good of the public demands that the secret be kept inviolate. And, therefore, even though a judge in a court of law or other superior should lawfully ask for information that would involve the betrayal of a "secretum commissum," it would not be right to answer, and if there were no other means of guarding the secret, the physician or lawyer, etc., may and must answer by a flat denial of any knowledge of the subject. Of course the laws of civilized countries protect professional men in the keeping of professional secrets. In the work mentioned above the author quotes the opinions of a number of medical men, bearing on the case he cites, which it may be interesting to quote in this connection, as showing the attitude of the medical fraternity toward the duty of a physician to guard under any and all circumstances the medical secret. Dr. Langlebert, from whom the above case is cited, indicates the physician's duty in the circumstances as it appears to him as follows: He would answer the young woman's father, who wished to learn from him the condition of health of his prospective son-in-law, thus: "I regret that I can not give the information you ask. The best you can do, if you intend to carry out this project of marriage, is to inform the young man of the warnings you have received, or have him come with you, or send me a writing by which he authorizes me without restriction to say whether he can or can not espouse your daughter." The physician ought to interdict all kinds of information as to the health of a patient on the occasion of marriage; as a professional principle, an invariable rule of conduct, he should take refuge behind the proscriptions of the law. The alternative is cruel. It requires a certain courage in such cases for the physician to remain master of himself and faithful to his duty. If it be a misfortune to society, it would be a much greater damage to permit the enfeeblement of the tutelary principle of the medical secret, which is one of the necessities even of the social order.

Dr. Gaide, commenting on this case, says: "If a client affected with constitutional syphilis, which resists all treatment, does not fear to solicit the hand of a pure young woman, who is the joy of her family; if the father of this young woman comes to demand of me in confidence, if he can in all security give her to this man, who would soil her by his first contact and leave her as her only consolation children affected by his malady, shall we respond with a silence which may be misunderstood, and thus render ourselves accomplices of a marriage, the fruits of which will be so deplorable? Never would I have the courage to obey the law under such circumstances. My conscience would speak higher than it, and without hesitation I would say, 'No, do not give your daughter to this man,' and I would not add another word."

Juhel Renoy maintains that it is not only lawful, but even compulsory for any doctor who is a man of honor and courage, to oppose and even denounce any criminal projects his patients might entertain in regard to marriage. He cites two instances in which he had undertaken the cause of young girls who were about to fall into a trap of this kind, and as his patients were without conscience, he refused to listen to the moral reason he adduced, he declared that he did not feel bound to secrecy toward them any longer, and that he would either go or send to the parents of the young women and warn them. Under this threat one of these marriages was broken off, but a more direct interference was required in the other case. He sent for the girl's father by one of his confreres, and replied without hesitation to the question put to him, "No, sir, do not marry your daughter to Mr. X," with so much emphasis that the marriage was broken off.

Commenting on this action of Renoy, Dr. Jullien says: "If the result was fortunate, the method employed was detestable. It was treason, perpetrated with the best intentions, but still treason, for it is all very well to say the patients were warned, but it was not until they were no longer masters of their secret, which would no doubt not have been revealed if they had known what use there was to be made of it. Strict duty would have required that before receiving this confidence our confrere should have warned the parties interested, that he would publish the information if he saw fit."

Dr. Morrow, from whose excellent work these extracts have been made, expresses his own opinion on this subject in the following words: "While the obligation of the medical secret is in the general interest of the social order, and should be maintained as a fixed principle of professional conduct, it may be admitted that a situation of a peculiarly aggravating character may present itself when the patient shows himself an exceptional sort of brute by the obstinacy with which he adheres to his criminal purposes after he is assured that he will almost certainly infect his wife—in such a case the physician, knowing all the circumstances and fully appreciating the tragic significance of such a step, must be guided by his own lights and conscience. If he should consider the criminal intent of this monster as entirely without the pale of professional protection, and refuse to stifle his own feelings as a man of heart and conscience, who shall condemn him? Such a man is far more likely to prove loyal to the highest ideals of ethical duty in his relations with his patients in general than the man who views these social catastrophes with a cold-blooded indifference, disclaiming all personal responsibility, and considers that in guarding the dissolute secret of his patient he is doing his whole professional duty."

It is clear from these extracts, and from the opinions of many other medical men which might be quoted, that the medical fraternity is not at all united as to the ethics of revealing the medical secret, even in an extreme case, like the one we give. The subject indeed is fraught with much difficulty. Those who hold that it is never allowed to betray the medical secret, not even to prevent the commission of a crime, maintain that the social welfare would suffer more, eventually, by the revelation of the secret than by its keeping. For the very ones who have most need of confiding in a physician are the very ones who would be most deterred from such confidence, by the knowledge that the physician might under certain circumstances lawfully betray their secret. And it was in this conviction, they say, that the laws of many countries make it a crime for the physician to reveal his patient's secret for any purpose whatsoever, even to protect the innocent or to prevent the commission of a crime. Thus the French Penal Code, art. 378, decrees that "physicians, surgeons and other officers of health, also pharmacists, midwives and all other persons, the depositaries, by their state or profession, of secrets which have been confided to them, outside of cases where the law obliges them to denounce, who shall reveal their secrets shall be punished with imprisonment from one to six months, and by a fine of from one hundred to five hundred francs." And recently in England, the House of Lords sustained the decree of the lower court, punishing an eminent physician by an enormous fine for having revealed to the wife, to protect her from contamination, the medical secret of her husband, who was one of his patients.

A German court, on the other hand, decided in 1903 that the obligation to secrecy on part of the physician ceases when a higher moral obligation urges him to divulge the truth. In the instance of husband and wife the court considers the physician as permitted} and even in duty bound, even against the expressed will of the sick partner, to apprise the other of a danger of infection. The court adds that such higher moral obligation may well be present also in instances other than between husband and wife.

In the case before us it must always be kept in mind that the patient, who has committed his secret to the physician, is going to commit a crime, a moral, if not a legal crime, most odious in its nature and most far-reaching and destructive in its effects. The physician is the only one who can prevent the commission of the crime, because he alone knows the secret. All his pleading, all his admonitions, all his denunciations to the patient in private are of no avail. The crime will be committed, unless the physician breaks his professional silence and reveals the secret of his patient. Does strict justice toward the patient oblige the doctor to secrecy under these circumstances? Does the welfare of the social order demand that even in this extreme case the secret of the criminal shall be guarded inviolate, though he is about to perpetrate a great wrong? The theologians are unanimous that in a case like this neither justice toward the patient nor the interests of the social order require of a physician that he keep inviolate the secret of a patient who is determined to commit a crime, the cause of which crime or the incentive to it is contained in the secret.

This is the doctrine of St. Alphonsus (de oct. praec. 971): “An entrusted secret may be disclosed for a just cause, namely, if keeping the secret would result in common harm, or harm to another innocent person, or even harm to the person who entrusted it, because then the order of charity demands that it be revealed.”

Salmanticenses (tr. xiii., de restitut. cap. 4, n. 82): “Likewise, even an entrusted secret must be revealed whenever its observance tends toward common harm or the harm of some innocent person, because a secret cannot bind against the charity owed to another; rather, from charity we must ward off harm to the community and to the innocent person.”

Lugo (de Just. et J. disp. 14, n. 142): “Even an entrusted secret has no place in those cases in which the very person who entrusted the secret unjustly harasses the commonwealth or another innocent person and is unwilling to desist from the injury; for then, insofar as it is necessary to avert the injury, you may reveal the entrusted secret, even if you had promised and bound yourself to endure death and any evils whatsoever for keeping the secret. For this does not prevent one afterward from repelling force with force.”

This is the doctrine also of modern moralists, v. g., Lehmkuhl, Konings, Genicot, Noldin, etc., as will appear from a consultation of their treatises on the eighth commandment. It can scarcely be maintained with any good show of reason that the interests of society demand that a criminal be shielded, while committing a crime, by guarding his secret. It will not interfere with the free and confidential relations between physician and patient if it is understood by the patient that his secret may be revealed if such revelation be necessary to prevent him committing a crime. The physician's duty toward society and toward an innocent third party outweighs and ought to outweigh his duty toward a patient contemplating a crime against the community at large or an innocent private citizen. It would make for immorality to close the mouth of a physician in such circumstances. Of course, the physician must endeavor by every other legitimate means in his power to dissuade the patient from committing the crime before it becomes lawful for him to have recourse to the extreme measure of revealing his secret. But it can be no part of the contract entered into by patient and physician, that the physician shall be silent when his silence becomes immoral, as it does when it aids and abets the commission of crime.

To this line of reasoning it may be objected that it calls into question the morality of the laws of many civilized nations, prohibiting the revelation of the medical secret even in as extreme a case as the one under discussion. To this we answer in the words of the author quoted above:

"It is worthy of note that in Europe there is manifest a growing dissatisfaction upon the part of many medical men, amounting in some instances to an active protest, against the intangibility of the medical secret, especially its inflexible application in cases where the question of marriage is concerned. As indicating the drift of professional sentiment in this direction, in the discussion upon the 'Sanitary Guarantees of Marriage,' before the Societe Franchise de Prophylaxie Sanitaire et Morale, July, 1903, many authoritative voices were raised against the dogma of the professional secret in the matter of marriage. M. Forin demanded 'that the law authorize the physician to no longer respect the professional secret, when it comes to a project of marriage.' In the opinion of M. Crequy 'the medical secret ought to have exceptions which in the superior interest of the race, should also apply to venereal maladies.' MM. Cruet and Valentino presented essays demanding the relaxation of the medical secret in cases where the interests of the individual protected were opposed to the general interests. M. Valentino declares that professional secrecy is the most powerful obstacle to all real hygienic progress, as by keeping concealed all morbid conditions, it impedes the efforts of the social forces against the spread of disease, renders ineffective the law for the compulsory notification of infectious diseases, and prevents the sanitary protection of marriage."

It is hardly necessary to remark that the physician is bound toward the innocent third party only "ex caritate." Toward his patients he is bound "ex justitia"; toward others "ex caritate." Now charity does not bind "cum tanto incommodo." Consequently wherever the physician would incur serious risk, as legal prosecution, or loss of practice, etc., he is not obliged to protect an innocent third party from injury, by revealing the medical secret.

N. B.—What is said here about the medical secret, applies to all secrets committed to priests outside of Confession, to lawyers, midwives, nurses, druggists, dentists, in short, all professional men who by reason of their profession are made the guardians of the secrets of others.