The Virtue of Silence

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 But most people don’t have the decision theory to understand this, and anyway most doctors do not publish their source code online.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.

Oh, right.

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.

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49 Responses to The Virtue of Silence

  1. ari says:

    One annoying thing is when people keep talking about Y, which is somehow related to a much greater issue X but actually completely a completely irrelevant diversion that just happens to be much easier to have something to say about (for instance, X = systematic erosion of civil rights, Y = the moral character of people who leak secrets about it, that sort of stuff). On that sort viral debates I occasionally falter, and it makes me glad that my G+ feed is only read by like five people.

    • houseboatonstyx says:

      In this case, the derailing easier question being the smaller one, of the likely consequences of this doctor revealing this fact: how likely to

      a) help this prisoner
      b) harm this patient
      c) discourage other patients from disclosing their own
      …… equal sins
      …… lesser sins

      So. Will my summary, labeled ‘derailing’, be more likely to head off this particular derailing, or to begin it?

      • Douglas Knight says:

        OK, I’ll derail. The revelation is not likely to help the prisoner. It may well hurt the him by inducing greater bitterness about the criminal justice system, learning that it’s not mistaken about his guilt, it just doesn’t care.

        • houseboatonstyx says:

          I’m not up for derailing offsite, but widening the question just a little, isn’t this the classic case of something heard in confession? What would Father Brown do?

          First, consult a lawyer under the lawyer’s confidentiality privilege, as to whether the prisoner might be freed, or at least his reputation repaired, by revealing this evidence for innocence. Then, in a classic whodunnit world, begin a search for other evidence for his innocence, not tainted by confidentiality.

          Widening a little in the other direction, since most counseling relationships begin with the counselor warning of mandated limits to confidentiality, would such publicity be adding much to the caution that client sinners (greater or lesser) already have?

  2. yli says:

    Let me praise everyone in these comments that passes up an opportunity to demonstrate how clever and observant they are by inventing examples of ideas that would have negative consequences if they were talked about. Your action is good and and you should feel good. And I still think you’re clever and observant even if I don’t know who you are đŸ™‚

  3. Vanzetti says:

    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.

    But of course you can practice the virtue of silence very loudly. All you can do is write a blog post stating “I was going to write something about X, but decided we are making too big a deal about it, so I’m refraining from it”. BLAM! Now everyone who are sick of X explicitly know you aren’t talking about it and are eternally grateful.

  4. I thought it went without saying (in fact, it’s said all the time) that people are sorely tempted to tell secrets and break confidentiality oaths, especially if keeping a confidence means protecting a villain or harming an innocent.

    I agree that the agonizing doctor should not have expressed this concern in public. We, though, aren’t really under any obligation not to discuss it (or, I should say, we don’t seem to care so much about maximizing the trust people have in their professional confidants).

  5. Avantika says:

    getting attacked by sufficiently horrible people can sometimes be just as gratifying as praise.

    Follows link, reads comments on that post; mildly freaks out.

    (For some reason those comments remind me of the old Dark Lord Potter thread criticizing HPMOR. I have no idea why that should be.)

  6. Deiseach says:

    “How exactly would people hear about this doctor who revealed the innocence of the prisoner? Through the ensuing court case? Nah.”

    I disagree. In this instance, I imagine the defence lawyer would make a big deal about breaking doctor-patient confidentiality and you can be sure the media would latch on to that angle as publicity, so there would be news stories on the local television news and in the press (maybe even a few national papers picking it up, as a chance for opinion pieces on “should confidentiality be absolute?”) and a great many of the public would have some idea of ‘there’s this doctor went to the cops about a patient’ and so they’d be reluctant to fully disclose all the facts the next time they need to go to the hospital or visit a doctor.

    I mean, if you’re worried the doctor will inform your employer or your spouse or the police that you’re drinking to excess/taking recreational drugs/engaging in risky sex, you are not going to tell the truth when asked “Do you smoke/drink/use drugs/engage in unprotected sex?”

    • Deiseach says:

      I mean, look at us, Scott – we’re talking about it and we don’t know the people in question at all!

    • Scott Alexander says:

      Have you ever heard about a medical confidentiality case on the national news? I don’t think I ever have.

      • Mary says:

        Has there been one, in a position to be talked up?

      • Fnord says:

        I recall an attorney confidentiality case from a few years back. I may be more attuned to random bits of information getting past around the internet than average, but obviously it must have gotten SOME play.

        That time it was going the other way, though. A client told his lawyer about a crime that the client had committed, and it turned out that someone else had been convicted and was serving time. The client gave the lawyer permission to share, but only after the client was dead. So the news was that confidence was held for years, rather than that it was broken.

      • Leonard Cuff says:

        Yes, Susan Forward had her license suspended as a California Therapist for disclosures she made about Nicole Brown Simpson after Brown was murdered by O.J.

  7. St. Rev says:

    Closely related is the problem of terrorism, where the point of the atrocity is the publicity.

    • gwern says:

      Is it really? Then why are so many attacks anonymous?

      • Berry says:

        Are they? I can’t remember the last one we’ve had here in Israel where some organization or another hasn’t taken responsibility.

      • St. Rev says:

        It’s complicated; I should perhaps have said attention rather than publicity. The spectacle and public reaction enabled by the multiplier effect of media coverage is the point. Undermining enemy morale has always been a major component of war strategy, but it’s a lot more efficient now, and it’s robust: any single publisher has a strong incentive to be first, and accomplishes little by remaing silent.

  8. roystgnr says:

    A system of ethics which cannot be openly discussed is almost by definition indefensible…

    But more seriously and more practically: suppose that all the time you spend thinking about ethics is valuable, and that you’d like to similarly create as much utility in other people as possible. You can’t instantly create a thousand copies of the valuable lunch you ate, but you can instantly create a thousand copies of the philosophical thoughts you wrote down, so as forms of charity go, by far your best course of action seems to be trying to share the latter (if only for the indirect positive effect it has on the number of lunches that other people share).

    With that in mind, does the value of silence still outweigh the damage done by silence? Consider your expected ratio of criminal patients (and fat train enthusiasts, and anyone else who might be on the threshold of figuring out they’re in danger of being sacrificed for a perceived greater good) to honest deontologist blog readers (and suspicious people with different utility functions defining good, and anyone skeptical about your ability to determine a shared greater good without public feedback). Isn’t it pretty low?

    Even if you conclude that your comparative advantage lies more in the area of sandwiches than in philosophy, practicing the Virtue of Silence (or taking the obvious next step, to the Virtue of Deception) is a very dangerous way to go about that. “Create a bunch of wealth and then donate it to charity” is a good life plan, but it’s really hard to create wealth without cooperation, and it’s really hard to cooperate when your partners have good reason to be suspicious of your stated motivations and utilitarian calculations.

    • Deiseach says:

      The only thing I’ve learned from ethicists is that, as a person of a certain girth, I should stay the hell away from them because they’d have no qualms about shoving me off a bridge đŸ™‚

      • Scott F says:

        You perhaps jest, but there’s another framing of the Trolley problem where it’s a consequentialist doctor who has five patients in mortal need of organ transplants, and a healthy young traveller who has all five of those organs walks in the door of the doctor’s surgical transplant clinic for a routine physical checkup. The traveller writes down “no next of kin” and cheerfully jokes that he has to be careful not to get lost, because he has nobody to realise he’s missing.

        I feel like there are perhaps a bunch of ethics philosophers exercising some of the Virtue of Silence in talking about trolleys and fat people on bridges – they would be gritting their teeth when their opponents argue that if a trolley could kill five people how could one fat person stop it, wanting really badly to throw this more realistic medical problem at them, but refraining because of the damage it might do to trust in the medical system.

  9. Oligopsony says:

    Might the virtue of silence, in fact, be something already widely deduced and practiced? If it were, how would we know? I can think of at least one major area in metaethics (possibly encompassing all of metaethics itself) where a great deal would be explained by widespread adherence. Should we be engaged in Straussian esoteric readings?

    Please feel free to exercise the virtue for me (i.e., delete this comment) if you believe I am pointing too directly at a basilisk.

    • orthonormal says:

      You fail at this. The correct action, if you really took your disclaimer seriously, was emailing Scott privately to ask his opinion, rather than commenting. The Virtue of Silence is not that difficult for topics where you’re consciously aware it might apply.

      But anyway, on the object level I think your thesis is silly, so I don’t think there’s any harm in this comment thread. I’m just pointing out that, if you feel motivated to publicly post a comment with an explicit disclaimer that it might be a violation of the Virtue of Silence, you’re doing it wrong.

  10. Ronak M Soni says:

    There was this terrorist attack in Mumbai in November 2011, and the terrorists used the live news channel coverage to figure out where the police/army were attacking from.

    • Berry says:

      Hezbollah did that pretty frequently when they were launching Katyushas blind, relying on news reports to adjust their aim.

      • Tom Womack says:

        A noted German corporal did the same with slightly larger rockets and the BBC. The BBC was of course being controlled by a higher power at the time, so informed all listeners that the rockets were landing too far down-range, and walked the rockets up-range into farmland.

  11. orthonormal says:

    Great point. Let me rephrase:

    Talking is not a free action where ethics are concerned. If you’re going to say something on a subject where the discussion itself has notable effects on people, you’re not morally obliged to silence, but you are obliged to hold yourself to a higher standard than “I wanted to say this” or “I gain social points by saying this”. (This covers discussion of secret topics, trigger warnings, speech that’s offensive to some, basilisks, etc.)

    I might start replying “I agree with you on X, but you made the world worse off on net by saying what you did” where applicable. (The first part is necessary in order to block this becoming another Fully General Counterargument.)

  12. Douglas Knight says:

    A problem with silence, especially silence on meta issues, is that it makes it easy to accuse people of ignoring important issues, when they might just disagree with you. In particular,

    both sides are ignoring the much bigger dilemma lurking one meta-level up

    I suspect that the person who wrote the question to NYT did so not to get advice, but intending to broadcast propaganda to a large audience. If so, the questioner’s model of Klosterman was a serious error. The questioner disagreed with Scott about the value of mentioning doctors struggling with these decisions. Maybe this was just a cost necessary to get into this venue. Also, I think the point was to say that secrecy is mandatory even in difficult cases, though saying that it looks difficult to the doctor and not just to the layman may not be justified by this reason.

    What is the other side? If the other side is people who want the public to have confidence in doctors to smoke out criminals, they want the same propaganda in NYT. But they must secretly advise doctors elsewhere. I think the questioner mentioned lawyers specifically to oppose such (hypothetical) people by claiming that doctors do not receive contrary advice elsewhere. It’s cheap talk, but I think it would work. Anyhow, CK is not that (hypothetical) side. He is a third side simply against doctor confidentiality. He advises the doctor to explicitly reject confidentiality in the future (in addition to breaking it now).

    As to LL, she does not have a big enough audience to reverse the damage to doctor confidentiality, so I think her raising awareness of the damage mainly increases it. But I don’t think she says that she cares about doctor confidentiality. I think her point was to promote promises more generally. Narrow realms of promises can be maintained by tradition, but if you want to invent new promises, or want people generally to invent new promises, you may need to talk about them.

  13. Anonymous says:

    At least in Canada, there is an innocence at stake exception to solicitor-client privilege (which is the strongest privilege; doctor-patient confidentiality is not protected as a class privilege in Canada at all, but applies only on a case-by-case basis). It applies if the confidential information involves core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction. Where an innocent person is in prison and the information was a confession from another person, it would apply.

    However, the lawyer is not obligated to disclose it. All the test means is that the evidence would be admissible, whereas normally privileged information would be excluded.

    I don’t know if the same test applies in the United States.

    • Seamus says:

      Sorry, same Anonymous as above (though mildly less anonymous). I was unclear about the obligation to disclose.

      There is no legal obligation for a lawyer to disclose such information generally but an accused person may apply to a court to have access to the communication. If he or she can satisfy the above-mentioned test, then the court can order the lawyer to disclose, and that would create an obligation.

      As mentioned, however, the solicitor-client privilege is the strongest in the law in Canada. Physicians may be legally or professionally obligated to disclose in those circumstances, and for many there may be no expectation of confidentiality at all (for instance, a psychiatrist in a forensic mental institution will frequently need to disclose anything like that to a Criminal Code Review Board, since it is relevant to whether the NCRMD (Not Criminally Responsible by reason of Mental Disability) patients are fit for discharge).

      If such an obligation exists it would have to be created by statute, and I am unaware of any. There is no general obligation in the Criminal Code to report all crimes.

      That is not definitive though, since provinces also have jurisdiction to legislate on the administration of justice, as well as over health (and therefore, the regulation of medicine). I have not looked into this subject in detail, but I recall that in most provinces, physicians must report suspected child abuse. In some provinces as well, physicians are required to call the police whenever a patient comes in with a gunshot wound.

      I am not aware of any provinces that require anyone to disclose an admission against interest of another person where innocence is at stake, however. Naturally, I am not certain of that, however.

      So, basically, that was a long way of saying “Maybe, but I am not aware if it is in either the United States or Canada.” I’m not very helpful today.

  14. JRM says:

    Orignial case commentary:

    I am not an expert on medical ethics. I am a lawyer. I am competent on the issue of medical privilege in criminal cases in California. Anything else I say has a greater chance of being wrong. If you think this is legal advice, may Zeus have mercy on your soul.

    Each jurisdiction is different; there are state-by-state rules.

    The lead case on mandatory disclosure is Tarasoff, a California case, later followed by many other jurisdictions. ( According to plaintiff, Badcrazy told Therapist that he was feeling murdery toward Ms. Tarasoff. Therapist took insufficient action to warn Tarasoff that Badcrazy wanted to murder her. Tarasoff was, in fact, murdered. Her parents sued Therapist.

    The court ruled that this is actionable: If you have a credible threat to an identifiable individual, you must take sufficient action to protect the threatened individual; this probably means calling the police AND the threatened individual.

    If a guy is just generally dangerous, there may be conservatorship actions or short-term mental-health holds, but those generally mean sharing medical information with other providers, which is a different deal.

    Most states require medical reporting of gunshot victims and some require reporting of knife wound victims. The police are interested in gunshot victims. Sometimes they are less victimmy than they might appear.

    Most past illegal actions are not reportable.

    The original case appears fairly easy: The doctor should vigorously urge his patient to either a) confess or, at minimum, b) contact a lawyer with the intent of trying to get the other guy out; it appears his medical issues are directly related to his criminality. From the fact pattern (Otherguy in custody, Patient free), Patient didn’t put Otherguy in. Therefore, it stops at urging. If you do something else, you are almost certainly in violation of your professional responsibilities, and your medical association is going to look askance at you. And, I think, for good reason – in this particular case, Patient only coughed it up after an express promise of confidentiality.

    Let’s complicate it: Patient perjured himself to put Otherguy in custody, let’s say for a long time. That’s a more direct route linking Patient and Otherguy, and makes the problem harder.

    If Patient has a continuing-action responsibility (such as a prosecutor who buried strong evidence of innocence), I think the case for reporting becomes much stronger.

    In any case you’ve got to look state-by-state for their rules. I would be pretty damned careful before breaking the rules of the local jurisdiction. I would want to be confident that this was right not only in this case, but also precedentially; unlike Scott, I believe this is the sort of thing that easily becomes a cause celebre with bloggers and political commenters. I would also get a professional consult, which means a trusted physician and not the NYT.

  15. Mary says:

    It is a good idea not to discuss untimely truths.

  16. jimrandomh says:

    This space intentionally left blank

  17. Randy M says:

    If a big public spectacle were made of this case, would people be more worried that doctor-patient confidentiality were breaking down, or a (judge? prosecutor? juror?) were knowingly sending an innocent person to jail?

    As much as I want trustworthy doctors, I want trustworthy agents of the justice system moreso. But then, I don’t know that my personally (or as part of a collective) knowing about a particular instance will contribute anything other than increasing my cynicism about it.

    • Randy M says:

      Other comment suggests it is a witness that was confessing. That is a little less troubling, in asmuch as it can be expected that some witnesses are lying for whatever reason, and the involved parties must use their own reasoning to try to discern their respective honesty.

    • Deiseach says:

      “It is better that some innocent men remain in jail than the integrity of the English judicial system be impugned” the late Lord Denning following the overturning of guilty verdicts on the Birmingham Six.

      The British criminal justice system in the 70s was rotten. There were so many cases of the police forging confessions, beating confessions out of suspects, manufacturing evidence, and not them alone – at least one forensic scientist (in the Birmingham Six case, as it happens) fudged the tests to fit with the police results – in all kinds of criminal cases and the judiciary (a) refused appeals on the grounds that “What you are saying is incredible; it can’t be true that there is this amount of police corruption” (except there was) and (b) well, you see the quote above. The West Midlands Serious Crime Squad were the most notorious, but they weren’t the only ones.

      I have no idea what modern-day American police forces are like, but I would not be shocked, shocked! to learn that there was at least some element of fitting the ‘usual suspects’ up to clear crimes off the books.

      • Randy M says:

        Well, me neither, but I would also not be shocked to find doctors of various stripes violating patient confidentiality. The question isn’t what is surprising, but what is more morally repugnant.

    • Chris says:

      Good point — patients sometimes get to choose which doctor to trust, but criminal defendants never get to choose which judge and jurors to trust.

  18. Cornelioid says:

    I guess it’s been long enough that i won’t derail the thread, and for whatever reason it seems worth a shot at addressing the throwaway snark.

    Essentially no one reads what i write except on Facebook (which is more than fine by me), but i am among the reticent people who said nothing amidst the Elevatorgate fiasco despite very much wanting to at the time. An internet that wants to thank me, however, can shove it.

    I convinced myself to say nothing because i realized just how ill-informed i was about the underlying issues that made this episode into a fiasco in the first place, and how they galvanized segments of the atheist/skeptic community into the clamor that they did. I didn’t know Rebecca Watson and had only just met the student leaders involved. Moreover, i had no concept of modern feminism, no idea what “men’s rights” meant, no exposure to “social justice warriors”, and a general ignorance of how sexism plays out in everyday life.

    The eruption throughout the blogosphere made several things immediately clear: (1) this issue was important to a lot of people; (2) the issues were far deeper than whether one guy was being creepy; (3) these issues had been brewing for years; and (4) there were no sources the majority of atheists and skeptics involved deemed reliable on anything. A lot of people were spewing nonsense, the only way to know who was to dig into the polemics, rebuttals, and citations themselves, and the only way to do that was to read the vast output that had been generated—a vast output that showcased passionate rationalists making the best cases they could for their take on a highly contentious issue. (What more fertile ground could be set for an aspiring skeptic?)

    The clearest voices, whatever side they took, tended to be the ones who acknowledged the importance of talking about the episode (how it illustrates the underlying issues), and continuing to talk about it. And, gradually, nothing anyone said sounded quite as absurd as the assertion that an issue at the nexus of controversial empirical research, cognitive biases, and secular morality did not need to be so talked about within the atheist / secular blogosphere. It’s perhaps the one thing i’ve become sickest of.

    I hope that comes across.

  19. Michael Vassar says:

    The low quality of the NYT ethics column is a remarkable point about the level of ethical discourse in our society in general.

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  22. sixes_and_sevens says:

    Is “angels-and-clockwork” a reference to something specific? This has been bugging me for the past three months, and I just realised I could ask you.

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  25. Chris says:

    The gay drug user (unless he lives in a small and religious town, in which case where the hell did he find a partner?) could probably find a pro-gay, pro-drug doctor more easily than he could find one who didn’t read the New York Times.