Leah Libresco writes a couple of essays (1, 2) on an ethical dilemma reported in the New York Times. In the course of a confidential medical history, a doctor hears her patient is suffering from stress-related complaints after having sent an innocent man to prison. The doctor wants to know whether it is ethical to report the matter to the police. The Times’ columnist says yes – it would save the poor prisoner. Leah says no – violating medical confidentiality creates an expectation that medical confidentiality will be violated in the future, thus dooming patients who are too afraid to talk about drug use or gay sex or other potentially embarrassing but important medical risk factors.
But both sides are ignoring the much bigger dilemma lurking one meta-level up: is it ethical to debate this dilemma in the New York Times?
Let’s look more closely at that phrase “violating medical confidentiality creates an expectation that medical confidentiality will be violated in the future.” There’s a very abstruse angels-and-clockwork interpretation of “creates an expectation” where, by making the decision to violate confidentiality, you are altering the Platonic machinery of the Universe in a way that allows other beings who know your source code to determine that you will do this. But most people don’t have the decision theory to understand this, and anyway most doctors do not publish their source code online.
The way “creates an expectation” pans out in our universe is that somebody hears that a doctor violated medical confidentiality, and that person tells someone else, and that person tells someone else, until eventually someone who was going to tell their doctor about having gay sex with drugs remembers having heard the story and decides not to.
How exactly would people hear about this doctor who revealed the innocence of the prisoner? Through the ensuing court case? Nah. Most people wouldn’t obsessively read the minutes of every single case at the local courthouse unless of course it has something to do with gender. Really, the only way that someone could hear about a doctor violating medical confidentiality is if she, like, somehow got a description of her intention to do so published in meticulous detail in the New York Times.
The entire negative effect of the doctor breaking her promise is that it would make people doubt medical confidentiality in the future. But whether or not the doctor ends up breaking her promise, thousands of New York Times readers now know that doctors strongly consider breaking medical confidentiality, and that ethics columnists tell them it’s okay to do so. It seems like the whether the doctor actually keeps her promise or not in this particular case is of miniscule importance compared to the damage that the column has already done.
Silence is a hard virtue. All the other virtues have the advantage that, when you practice them, people will praise you. Sometimes if your moral system is very different from your friends’ people will attack you for your virtues, but getting attacked by sufficiently horrible people can sometimes be just as gratifying as praise. But if you stay silent, there’s no praise and no attacks. By definition, no one even knows you made a courageous moral choice.
(Eliezer mentioned in the comments of my Against Bravery Debates that he’s spent a couple decades pushing ideas almost everyone else thinks are crackpot, and he’s never appealed to bravery at all. He is one hundred percent correct and I have one hundred percent never noticed despite reading almost everything he’s written for several years. That’s the Virtue of Silence for you.)
(I had like five much better examples here, all of which would be very clever, and each time I had to catch myself and say “Wait a second, by bringing that up I’m violating the virtue I’m supposed to be pushing here, aren’t I?”)
One example of silence I deeply appreciate is people who don’t talk about the latest viral issue. I’m trying to think of an example that’s not too destructive to bring up…hmmmm…go for something old…Elevatorgate! Nearly everyone who talked about Elevatorgate mentioned that it was outrageous that the blogosphere was making such a big deal about it, missing the similarity to the old adage that “you aren’t stuck in traffic, you are traffic.” Somewhere there was someone who wanted to write about Elevatorgate, thought about it, and decided not to. That person deserves the sincere thanks of a grateful Internet.
So having made the case for the other side of the confidentiality-newspaper meta-dilemma, am I actually pushing the claim that it is a moral law not to publicize information that could have bad consequences?
But I notice that this sort of thing almost always ends up making people angry and having a perverse effect where demands not to draw Mohammed turn into Everyone Draw Mohammed Day (see: Streisand Effect). It also sometimes snowballs to the point where not only can you not talk about X, but you can’t talk about the demand not to talk about X because that would be referring to X obliquely, and you can’t talk about the demand not to talk about the demand to talk about X, until eventually you climb up so many meta-levels that you collapse from hypoxia and have to be rescued by Sherpas. Then you get a “callout culture” where people try to gain easy Virtue Points by telling people discussing issues that they Should Not Be Discussing Them and other people try to gain easy Virtue Points by being the Brave Defender of Freedom of Speech.
And maybe that’s useful if it’s something like gender where everyone wants to talk about it all the time anyway, but we don’t really need to do that to medical confidentiality, do we?
Maybe this is one of those rare cases where the word “supererogatory” might be useful. Yelling at people who talk about violations of medical confidentiality would just lead to “ARE OUR DISCUSSIONS OF MEDICAL CONFIDENTIALITY BEING SILENCED??!?” on the front page of the New York Times. And fretting over talking about it with your friends, or publishing a blog article about it (cough) is probably on the moral level of those Jains who walk everywhere with a broom in front of them so that they don’t accidentally squash any bugs. But if someone is really really concerned about it and wants to be a great person, then yeah, I think writing to the New York Times about it requires a bit of thought.
And since I am publishing a blog article about it (VIRTUE OF SILENCE IS REALLY HARD!) let me restore some Virtue Points by confirming that I will not betray private patient information of this sort if such a dilemma comes up except when legally required. Trust me, I’m a doctor.