Lecture for Year 3 medical students on 25th June 2001 by Professor Omar Hasan Kasule Sr.
The patient voluntarily allows the physician access to private information in the trust that it will not be disclosed
to others. This confidentiality must be maintained within the confines of the Law even after death of the patient. In routine
hospital practice many persons have access to confidential information but all are enjoined to keep such information confidential.
CONFIDENTIALITY IN ISLAM
Secrets in the Qur’an: The Qur'an mentioned the term secret
in many verses (p570 2:77, 2:235, 2:274, 5:52, 6:3, 9:78, 10:54, 11:5, 12:19, 12:77, 13:10, 13:22, 14:30, 16:23, 16:75, 20:7,
20:62, 21:3, 25:6, 34:33, 35:29, 36:76, 43:80, 47:26, 60:1, 64:4, 66:3, 67:13, 71:9, 86:9). The term secret is relative. What
may be a secret for one person may not be for another. What may be a secret in one place and at a particular time may no longer
be a secret when time and place change. Secrets are of various degrees of importance. Revelation of some secrets could hurt
an individual. Others can hurt the whole community or the whole ummat. Some secret
information could be harmful if it is related directly to one individual but could be harmless if it is generalized.
Concept of keeping secrets, kitman al sirr: Humans are capable of deliberately hiding and sitting on information (p986 3:72, 2:228, 2:271, 3:167, 4:42,
4:149, 5:61, 5:99, 6:28, 14:38, 21:110, 24:29, 27:25, 33:54, 60:1). Allah knows all what humans hide and reveal (p986 ). The natural
default situation is for humans to divulge and share information during conversations even without being obliged or expecting
any benefits. Keeping a secret therefore requires effort and discipline. Hiding information may be praiseworthy for example
if a person does not reveal is iman in front of enemies, kitman al iman (p986 40:28). Keeping a secret, hifdh al sirr, entrusted
to you in confidence is a sign of good Islamic character ().
You may keep your own secrets from people who are potential enemies. The Prophet taught us to rely on keeping secrets in managing
our affairs, al I'itimad ala al kitman fi qadhai al hajat (). Hudhaifat ibn al Yamaan was the keeper of the Prophet’s secrets, sahib sirr
al nabiy (KS195 Bukhari K62 B20, 27, Tirmidhi K46 B37, Ahmad 6:450). Secrecy could be negative if it involves hiding the
truth that should have been spread to others, kitman al haqq (p? 2:42, 2:146, 2:159,
2:173, 3:71, 3:187, 4:37, 5:15, 6:19). It is also negative to hide evidence, kitman
al shahadat (p. ? 2:140, 2:283, 5:106). The basic position is to keep secrets and information and not reveal them even
if there is no foreseeable harm. It is part of good Islamic character not to reveal all what a person knows. The Prophet taught
that people should listen more and speak less. The injunction about keeping secrets involves even probing to look for information
not related to the present care because this will constitute spying, tajassus, that was prohibited by Law. It is forbidden
to try digging into the privacy of another person, la yattabi’u ‘awrat akhiihi (KS68: Abudaud K40 B37,
Tirmidhi K19 B85, Darimi K19 B3, Ahmad 4:424). It is forbidden to try to look in the house of another person looking for information.
If a person who looks is hurt he can not claim any legal remedy (KS388 Bukhari K87 B18, Muslim K28 H18, Muslim K28 H19, Muslim
K28 H20, Muslim K28 H21, Muslim K28 H22, Muslim K28 H23, Abudaud K38 B22, Tirmidhi K14 B18, Nisai K45 B18, Nisai K45 B19,
Nisai K45 B20, Ibn Majah K21 B20, Darimi K15 B18, Ahmad 4:222, Ahmad 4:224, Ahmad 4:427, Ahmad 4:428, Ahmad 4:430, Ahmad 4:435,
Tayalisi H1323, Waqidi p399)
BASIS FOR MEDICAL CONFIDENTIALITY:
Clinical care: If the patient is not assured that information revealed
to physicians will be kept in confidence, he or she will not provide sufficient information to the physician for proper diagnosis
and management. Such violation destroys future co-operation because the patient will hold back some information from the caregiver
thus impairing correct diagnosis and appropriate management.
Autonomy and privacy: The patient has a right to keep personal
information private and inaccessible to unauthorized persons.
Fidelity: It is part of the trust between the patient and physician
that their professional relationship remains private. The psychological basis of fidelity is the private and privileged relationship
of trust between the patient and the caregiver. Revealing secrets that occurred to a third party is a violation of the trust.
If a person seeks advice and divulges secret information, that information is protected because the advisor is supposed to
be trusted, al mustashaar mutaman (KS198 Darimi K17 B13).
The social basis lies in the prohibition of spreading rumors, namiimat (MB #2032) and backbiting.
The legal basis is based on the law of contract, and three Principles
of the Law, qawaid al sharia, and the Law of Property. Keeping medical secrets
is part of the physician-patient contract; fulfilling a contract is an obligation in Islam. The Principle of Injury, dharar, states that an individual should not harm others or be harmed by others, la dharara wa la dhirar. The Principle of Hardship, mashaqqa, states
that hardship mitigates easing of the sharia rules and obligations, al mashaqqa tajlibu al tayseer. Necessity legalizes the otherwise prohibited, aldharuraat tubiihu al mahdhuuraat. Necessity is defined as what is required to
preserve the five Purposes of the Law (religion, life progeny, property, and intellect). If any of these five is at risk,
permission is given to commit an otherwise legally prohibited action. The ownership of the records is not clear. Do they belong
to the patient, the caregiver that wrote them, or the institution? Using the law of property, a product belongs to the person
who made it. In this case, the patient is the 'maker' of all the medical facts that are written and should be the acknowledged
owner of the records. The patient is also the only person involved who has most to lose if records are misused. Thus, the
contents of the medical records cannot be revealed without the express permission of the owner. The general position regarding
medical records is that they are a secret that cannot be revealed without specific necessity, dharurat, as defined by the law.
STORAGE and RETRIEVAL OF INFORMATION
It is the physician’s responsibility to make sure that medical records are secure and that unauthorized access
is not allowed. Secrets are kept within the person, al kitman fi al nafs (p987
2:235, 2:284, 3:29, 3:118, 3:154, 27:74, 28:69, 33:37, 40:19). With development of writing and electronic technology, we now
have other ways of keeping secret information. The Qur'an mentioned the tools for producing written records as paper, sahifat (p979 20:133, 52:2-3) and the pen, qalam (p979 68:1, 96:4).
The Qur'an used the term kitaab to refer to written records such as scriptures
(p977 4:153, 6:7, 17:93, 21:103, 29:48, 34:44, 35:40, 37:157, 34:21, 62:5), the Qur'an (), the record of pre-destination, kitaab al qadr (p. 978 3;145… 57:22),
the record of values, kitaab al qiyam (p. 979 98:3), the record of knowledge, kitaab al ilm (p979 27:40)., and correspondence letters (p979 27:28-29).He process of writing was mentioned about evidence, kitabat al shahadat
(p979 43:19) and contracts, kitabat al uquud (p. 979 2:235, 2:282-283). Writing
of false records was severely condemned (p979 2:79). The prophet gave guidance about writing and writers (KS452 Tirmidhi K40
B20, Tirmidhi K40 B21, Ibn Majah K33 B49). In a modern medical environment, many records are generated about each patient.
These prove a challenge as far as keeping of secrets is concerned because many people can access them. Besides their use in
medical care, the records can be used for medical education, medical research, and for legal purposes. Prevention of access
to records for educational purposes may fall under the prohibition of hiding knowledge, kitman
RELEASE OF CONFIDENTIAL INFORMATION
Release of information by the patient: The injunction to keep secrets
is binding on both the caregiver and the patient. The patient should not make unnecessary revelation of negative things about
himself or herself, satr al mumin ala nafsihi (KS68 Bukhari K78 B60, Tayalisi H2206). The patient should consider any
injurious information as a secret and cannot reveal it. If it is about his sins or dishonourable shameful things, fahishat, he is forbidden. The prophet condemned al mujahir. A Muslim
should repent and conceal his sins (MB2037). The development of extensive genetic screening technologies has resulted into
restrictions on the patient disclosing his or her own medical information. Disclosure of a genetic defect by a patient also
discloses information about genetic defects in parents and siblings.
Release of the information by the caregiver: The caregiver should
cultivate the Islamic habit of saying only good words and avoiding bad ones (KS461). He should also cultivate the habit of
being humble and speaking little because it is part of iman, al tawadhu’u wa qillat al kalaam min al iman (KS462 Tirmidhi
K25 B80). Speaking too often and to anybody may unconsciously lead to divulging confidential information. The general position
of the Law is that a caregiver cannot divulge any information about a patient without the patient’s consent or in exceptional
circumstances defined by the Law such as when an infectious disease has to be reported. It is prohibited for the caregiver
to use the privileged medical information he has for any personal gain. For example, he cannot use his knowledge of the health
of a businessperson to buy shares in a certain company. He cannot advise his relatives about marrying or not marrying a certain
person because of what he knows about their health. Release of information in the public interest is a more complicated situation.
The question arises whether a caregiver is obliged to reveal disease in a leader or airline pilot that could endanger the
public? What should the caregiver do if he knows of a patient with a contagious disease that is in the community and is endangering
others? Is it a violation of privacy for the caregiver to share medical information with other caregivers caring for the same
patient? What about using the data for medical research or medical education? How much can the caregiver tell the relatives
of the patient without compromising the regulation of keeping secrets? What should the caregiver do if approached by law enforcement
agencies asking for specific medical information that can help them solve a crime? Can a caregiver testify in court against
his patient using information obtained during the medical examination? All these are questions for which no easy answers can
be given most of the time. The simplest situation is when the patient, the owner of the records, consents to their release
provided no other individual is directly hurt by such a release. The patient’s wishes to have information divulged to
some individuals may have to be respected.
JUSTIFICATION OF INFRINGEMENT OF CONFIDENTIALITY RULES
Release to other health care workers: Information has to be released
to other health care givers in the process of clinical management.
Legal requirements: Information release may be required by statute.
In some situations public interest may necessitate information release. Crime investigation may justify information release.
Judicial proceedings may require release of information to ensure justice. In cases of court litigation, The caregiver could
testify in criminal cases that involve dhulm. The Qur'an forbids the revelation
of the shameful unless there is dhulm (p308 4:148, 24:19). The caregiver cannot
give false testimony (MB1176),
Public interest: There are situations in which over-riding public
interest will require refusing to release information even if the patient consents.
UNJUSTIFIED RELEASE OF INFORMATION
Education, research, medical audit are not situations of necessity
dharurat that justify violation of confidentiality. Information can be released only if the patient consents.
Employers or insurance companies may require medical information
in order to make certain decisions. These are not considered situations of necessity that justify violation of confidentiality.
There is no difference in the Law between disclosure during life or after death of the patient. One of the ways for the caregiver
to decrease his risk of revealing secret information is to have only the minimum needed for his work. This means that during
history taking only those questions directly related to the medical problem should be asked. There should be no probing or
digging for unrelated facts.
DIVIDED OR CONFLICTING LOYALTIES
Some physicians find themselves in a situation of conflict and divided loyalty. A company physician is obliged to report
to his employers that will violate the confidentiality between him and his patients. Military physicians may also have to
report medical information to the higher brass. The physician may have to make a notification to relevant authorities when
he believes that there is serious danger to third parties for example HIV positive cases who share needles or epileptic drivers.
Parents who abuse their children may have to be reported. It may be necessary to notify a spouse in case of HIV infection.