CCAR RESPONSA

CONFIDENTIALITY AND THREATENED SUICIDE

5750.3

She'elah

Counselor A. has a client (B.) and has been informed by the latter that she is bringing a malpractice suit against a certain physician. Meanwhile, A. has learned that a psychiatrist has diagnosed 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 suit, 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 further complicated by B.'s threat that, were she to lose the law suit, she would commit suicide. Counselor A. has now come to me to ask me whether Judaism can give her some guidance in the matter. (Rabbi Elbert L. Sapinsley, Raleigh, NC)

Teshuvah

1. Confidentiality.

While today confidentiality is a hallmark of certain professions, especially clergy, physicians, counselors, and lawyers, the Halakhah 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 slander and talebearing or gossip (leshon ha-ra and rekhilut) apply to all Jews, professional or otherwise. There are exceptions, however, when information that is vital to a third party may be divulged. Thus, every Jew is commanded to come forward with testimony that benefits another.1 Failure to do so constitutes violation of the mitzvah Lo ta'amod al dam re'ekha, "Do not stand idly by the blood of your neighbbor."2

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 override the obligation to testify to someone's benefit?

In Jewish law, an oath which obligates an individual to violate a mitzvah is generally invalid on its face. Since one is commanded to testify in court, an oath which forbids the swearer from revealing testimony which he/she is otherwise obligated to give would be a false oath, shevu'at shav.3

Counselor A.'s oath (or equivalent) has, of course, not obligated her specifically to keep confidential information 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.4 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 R. 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.5

This consideration would certainly apply to a counselor who has assumed certain professional obligations without swearing a formal oath. The counselor, when taking upon herself such discipline, never intended to harm a third party. Any person is obligated to come forward with important information in order to avert the damage which a traumatic and expensive law suit would entail for an innocent party. A counselor is not relieved from this responsibility.

Counselor A., by asking the rabbi for guidance, reveals her sensitivity to both Jewish law and to the importance of confidentiality. Indeed, many persons would refrain from seeking medical, psychological, legal or religious counseling without the assurance that their conversations will not be revealed . 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 (and divulge the information she has) over the prohibitions of rekhilut and lashon ha- ra (and say nothing)'?

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

a. 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 she asks whether she may reveal this information 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. has been diagnosed in this fashion does not by and of itself say anything about the justification of her lawsuit. Malpractice may indeed have occurred, and Counselor A. should not place herself in a position where she would weaken her client's case ab initio. And even if the lawyer, learning of the information, were to abandon the case, B. would doubtlessly find another one. Would A. search out each lawyer and disclose her information? This is an unlikely and disagreeable scenario.

b. If a discovery process takes place,6 it will in any case tend to uncover B.'s medical history, since such inquiries are made routinely in medical malpractice cases. Should we advise A. to breach her confidence in order to reveal something that legal procedure would reveal anyway?

c. We do not know what the law of confidentiality is in the state where A. practices. She has to respect the principle of dina' de-malkhuta' dina, the halakhic requirement to observe civic law.7 In addition, she may very well expose herself to a lawsuit for breach of confidentiality and unprofessional conduct.

d. 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 the Counselor's interference would be harmful to her client. The court now becomes the judge of the doctor's competence, and A. is not a 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 rekhilut and lashon ha-ra' should be overridden by the mitzvah of lo' ta'amod. Counselor A. should not come forward with the information she has.

2. The issue of threatened suicide.

Since we would advise A. not to interfere in the matter, might that conclusion possibly be different in view B.'s threat of committing suicide should her lawsuit fail? It is well to take a brief look at the halakhic issues involved.8

R. David Zvi Hoffmann wrote a responsum concerning a student 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 our primary duty to save our or someone's life (piku'ah nefesh) was not at issue, because the mother had no right to request her son to violate the mitzvah of Shabbat observance. If we were to decide otherwise, then anyone wishing to turn Jews away from Torah could threaten suicide if we did not accept his/her heresy.9

In the conflict between the duties to honor one's paretns and to honor Shabbat, R. Hoffmann gave the latter priority, even though the mother might carry out her threat. He feared that ruling otherwise would set a dangerous precedent.

We cannot, of course, say whether R. Hoffmann would have ruled similarly in our case. The mitzvah of Lo ta'amod is not as clearly circumscribed as that of Shabbat observance. We will therefore not speculate on how he might have decided in this particular conflict of mitzvot.

However, in another case, also involving threat of suicide, R. Walter Jacob did reach a different conclusion.10 At issue was the potentially fatal illness of a bride whose fianci was unaware of her condition. The bride, confiding the matter to the rabbi, stated that, if her condition were revealed to the groom, she would kill herself.

R. Jacob applied the mitzvah of Lo ta'amod to the safeguarding of the woman's life. He cited the Hafetz Hayyim in a similar case11 and said:

In this specific instance the rabbi must weigh the danger of the woman committing suicide against the problem of not providing adequate information to the fianci. The quotation "Do not stand idly by the blood of your neighbor" weighs heavily on the side of the woman. If the rabbi is convinced that the threat of suicide is real he may not divulge the information.12

Thus, R. Jacob left it to the rabbi to decide whether the threat of suicide was sufficiently serious, in which case the information was not to be revealed. Applied to our case, we would draw the following conclusions:

a. If Counselor A. believes that B.'s threat of suicide is real, she should not disclose her information and threaten the success of her client's law suit. That would confirm the conclusion we reached on the basis of other considerations, enumerated above under (1).

b. But what if A. were convinced that B.'s threat of suicide was not serious? Basing ourselves on the considerations outlined above under (1) we would say No in this instance as well.

Conclusion.

While the Halakhah would permit or even require disclosure of confidential information under certain circumstances, we do not 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 help her client abandon her suicidal threats and explore ways and means to settle her legal claims in a non-adversarial manner.

Notes

  1. Lev. 5:1; B.T. , Baba Kamma 56a; Sh.A., Hoshen ha-Mishpat 28:1.
  2. Lev. 19:16; also understood as "do not profit from the blood of your neioghbor. See alsoSifra, Kedoshim 2:4.
  3. B.T., Shevuot 29a; Rambam, Yad , Hil. Shevu'ot 5:14-15.
  4. Netivot ha-Mishpat, Hoshen ha-Mishpat 28, n. i.
  5. Resp. Tsits Eliezer, v. 13, n.81, part 2; see also Jacob Breisch, Helqat Ya'akov 3, n. 136. However, R. Barukh Rakover deems the Hippocratic oath to have priority (No'am, vol 2).
  6. A legal procedure which takes place before the court hearing. It is designed to acquaint both parties with the general documentary and other evidence upon which they expect to rely. Discovery thereby saves court time later on.
  7. This rule obtains in most cases, unless it requires Jews to transgress Jewish principles.
  8. On the laws governing suicide, see Y.M. Tukzinsky, Gesher Ha-hayyim, 2nd ed. (Jerusalem l96l), vol. I, pp.169-273.
  9. Resp. Melammed Le-Ho'il, part 1, n. 61.
  10. Contemporary American Reform Responsa, n. 5.
  11. Sefer Hafetz Hayyim, Hil. Rekhilut, n. 9.
  12. Of course, R. Jacob decided a specific case and did not attempt to make a general rule.

If needed, please consult Abbreviations used in CCAR Responsa.