Outline of Cohen Essay

ISSUE: How do we justify breaches of confidentiality as required by Tarasoff? (E.g., where client shares information of a clear and immanent danger to a third party)

Confidentiality = not sharing information given by a particular person.

WHY DO WE KEEP CONFIDENTIALITY IN THE FIRST PLACE?

A) UTILITARIAN REASONS (The right thing to do is whatever maximizes net utility for all affected)

  • If we violate confidentiality, we reduce the use of professional services by those who need them most
  • If we violate confidentiality, those who use professional services will not be honest with the professional

Therefore, we should violate confidentiality seldom or never.

B) KANTIAN VERSION OF DEONTOLOGY

  • PERSONS AS ENDS IN THEMSELVES

    Rational agents have the right of self-determination. Therefore, there is no disclosure of confidence without the client's consent (which must be fully informed, rational, and not coerced)
  • UNIVERSALIZATION OF OUR DECISIONS

Whatever we plan to do, we must allow ALL PERSONS to do in similar situations.

For a Kantian, we protect confidentiality in order to preserve the client's freedom of action in pursuing her/his own goals.

Problem: Tarasoff rule conflicts with the first formulation of Kantian deontology

Solution: It does not conflict if we combine respect for persons and universalization; the client neither respects others nor expects equality of application. The Kantian can only WEAKLY justify respecting the client's confidentiality.

[In other words, the client wants her/his confidence to be respected but does not plan to respect the autonomy of others. In keeping confidence, the professional empowers the client to disempower others]

COHEN'S SOLUTION: Respect confidence only when doing so is consistent with BOTH utility and Kantian deontology.

[My own comment: Another way of seeing it: Balance your competing prima facie duties, attempting to fulfill all of them. In particular, interpret autonomy to mean that we must never use others merely as a means to some good we hope to achieve.]

CONSTRUCTING A MODEL RULE

The proposed formula for a rule: Where utility clearly justifies breach of confidentiality, disclosure to a third party ALSO requires Kantian, deontological justification of the particular rule. These justifications must consider BOTH the specifics of the professional-client relationship AND general obligations to society.

[My own comment: Seen from the point of view of competing prima facie duties, utility is necessary but not sufficient. The solution is to construct a rule that takes all major kinds of duty into account, e.g., beneficence as well as autonomy.]

SOLUTION: The professional's first action should be to advise and encourage the client to act, making the disclosure. (This respects the duty to respect the client as a person.) IF the client does not pursue self-disclosure, the professional must inform the client that confidentiality will now be violated. (The professional would expect others to disclose such violations of confidentiality, and so must do what she/he expects of others. Furthermore, failure to inform the client of the planned disclosure would be to use the client as a mere means, as a source of information.)

Because the professional cannot use the client as a mere means, confidentiality must be preserved in relation to additional third parties. From a utilitarian perspective, the degree of importance in keeping confidentiality is determined by the amount of collateral damage that the information might cause in the client's life. 

[My own comment: For the Kantian, there is no parallel matter of degree. The professional should not second-guess what the client regards as more or less important.]

Either way, only those who must know are to be told, and they are to be told only what they must know in order to prevent clear and immanent harm.

Having now cause harm to those who receive the information (e.g., by causing psychological distress and harming the relationship with the client), the professional must offer to extend professional services to the third party, or make a referral.

UTILITARIAN OBJECTION: If it becomes known that a rule like this is being followed, people in situations covered by the rule (e.g., those with AIDS) will stop disclosing their medical history to their counselors.

REPLY: This is a big "if" that is not supported by empirical evidence.

[My own final observation: Cohen does not seem to know that Kant has two additional ideas that would support this analysis. First, that there's no reason to treat utility and deontology as incompatible. Kant argues that, because we would want others to come to our aid when we are in immanent danger, everyone has a positive duty to help others who are in clear and immanent danger. We have some duty to help others when we can. So the only issue for the Kantian is why we can violate confidentiality in order to carry out our positive duty. The answer to that is a second point that Kant makes, regarding the equality of all persons and the universalizability of our behavior. Because the client's refusal to disclose to the third party amounts to manipulative or coercive behavior directed at the third party, which demonstrates the client's refusal to respect the autonomy of the third party, the client cannot consistently expect his/her confidentiality to be respected on Kantian grounds. We do not have any obligation to support others when we know that they are engaging in morally unacceptable behavior.]

 

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            Last updated Feb 11, 2008