JRJ, Fall 1990, 59-63

CONFIDENTIALITY AND THREATENED SUICIDE

Question:

Counselor A has a client B and has been informed by the latter that she is bringing a malpractice suit against a certain physi- cian. Meanwhile, A has learned that a psychiatrist has diag- nosed B as a schizophrenic and borderline retarded person. Counselor A believes that, were B’s attorney to know of this diagnosis, he would drop the lawsuit, which by its very nature would be damaging to the physician’s reputation. Knowing this, may (or should) the counselor break the rule of confidentiality and tell the attorney of B’s medical history? The matter is fur- ther complicated by B’s threat that, were she to lose the lawsuit, she would commit suicide. Counselor A has now come to me to ask me whether Judaism can give her some guidance in the matter.

Answer:

I. Confidentiality

While today confidentiality is a hallmark of certain professions — especially clergy, physicians, counselors, and lawyers — the Halacha does not know of a special category of “professional ethics.” In this regard, professionals are under the same obligations as any lay person.

Therefore, the laws prohibiting lashon hara and rechilut apply to all Jews, professional or otherwise. However, under some cir- cumstances information that is vital to a third party may be divulged. Thus, every Jew is commanded to come forward with testimony that benefits another. Failure to do so constitutes a violation of the mitzvah Lo ta’amod al dam re’echa.

The latter commandment may on occasion come in conflict with the Hippocratic oath a physician has sworn, or with the accepted canon of a counselor’s discipline (which, while not formally an oath, is nonetheless assumed by every client to be the basis of counseling). Does such an oath or canon of confidentiality over-ride the obligation to testify to someone’s benefit?

Generally, an oath that obligates an individual to violate a mitz-vah is invalid on its face. Since one is commanded to testify in court, an oath that forbids the swearer from revealing testimony that he or she is otherwise obligated to give would be a shevu’at shav.

Counselor A’s oath (or equivalent) has, of course, not obligated her to keep confidential information specifically from a court; rather, her discipline requires of her to keep it from anyone. This is analogous to the shevu’ at kolel, an inclusive oath which, since it appertains to most persons, may also be valid with regard to judges. Thus, the counselor, because she is forbidden to reveal her information to the patient’s relatives or friends or to anyone, would by extension also appear to be prohibited from revealing it to the court.

R. Eliezer Waldenberg tried to find a way out of this dilemma. He argued that a physician, when swearing the Hippocratic oath, never intended thereby to violate another commandment. Hence, says Waldenberg, the doctor may testify in court despite his oath, and, if he has any lingering doubts about it, should apply to a beit din to exempt him in this instance from the generality of the oath.

This consideration would certainly apply to a counselor who has assumed certain professional obligations without swearing a formal oath. The counselor, when talking upon herself such disci- pline, never intended to harm a third person. The “average per- son” would be obligated to come forward with important informa- tion in order to avert the damage that a traumatic and expensive lawsuit would entail for an innocent party. A counselor is not relieved from like responsibility.

Counselor A, by asking the rabbi for guidance, reveals her sen- sitivity to both Jewish law and to the importance of confidential- ity. Indeed, without the assurance that their conversations will not be revealed, many persons would refrain from seeking medical, psychological, legal, or religious counseling. If, nonetheless, a decision to violate confidentiality is made by a counselor, it will have to be based on very sound reasons. Are these present in the case before us, so that we would advise Counselor A to give preference to the mitzvah of lo ta’amod over the prohibitions of rechilut and lashon hara?

In order to make a judgment the following considerations would come into play:

1. Counselor A has learned (we do not know how) that B has been diagnosed by a psychiatrist as a schizophrenic and borderline retarded person, and it is this that she would reveal to A’s lawyer. Now, schizophrenia remains a somewhat imprecise term for a state of mind that is still not fully understood; and “borderline” retardation could be of various kinds and limit a person in one respect but not in another. Further, the fact that B is diagnosed in this fashion does not by and of itself preclude that she may be justified in her lawsuit. Malpractice may indeed have occurred and A should not place herself in a position where she would weaken her client’s case ab initio. And even if the lawyer, learn- ing of the information, were to abandon the case, B would doubtlessly find another one. Would A search out each succeeding lawyer and disclose her information? This is an unlikely and dis- agreeable scenario.

2. The normal discovery process will in any case tend to uncover B’s medical history, since such inquiries are made rou- tinely in medical malpractice cases. Should we advise A to breach her confidence in order to reveal something that legal procedure would reveal anyway?

3. We do not know what the law of confidentiality is in the state where A practices. A has to respect the principle of dina de- malchuta dina. In addition, she may very well expose herself to a lawsuit for breach of confidentiality and unprofessional conduct.

4. The lawsuit against the doctor has already been launched and a certain degree of initial trauma has undoubtedly been suffered. The trial will bring out the facts, and if B’s suit is malicious, that will be exposed in time; if it is not, then A’s interference would be harmful to her client. The court now becomes the judge of the doctor’s competence, and the counselor is not in a good position to substitute her own judgment for the court’s.

In view of these doubts and uncertainties, we do not believe that, in this case, the prohibitions against rechilut and lashon hara should be overridden by the mitzvah of lo ta’amod.

II.    The Issue of Threatened Suicide

The above conclusion is not affected by B’s threat of commit- ting suicide should her lawsuit fail, since we advise A not to inter- fere in the matter. The question having been raised, however, it is well to take a brief look at the halachic issues involved.

R. David Zvi Hoffmann wrote a responsum concerning a stu- dent who was enrolled in business school. The young man’s father ordered him to attend scheduled classes on Shabbat; the young man refused and a family crisis ensued. The student’s mother warned him that, were he not to relent and obey his father, she would commit suicide.

Hoffmann ruled that pikuach nefesh was not at issue, because the mother had no right to request her son to violate the mitzvah of shemirat Shabbat. If we were to decide otherwise, then anyone believe that such circumstances exist in our case. Counselor A should not break the confidence placed in her by her client.

We are advised that the lawsuit faces considerable delay. Meanwhile the counselor might be able to help her client abandon her suicidal threats and explore ways and means to settle her claims in a non-adversarial manner.

W. Gunther Plaut, Chair CCAR Committee on Responsa