Do patients have an absolute moral right to the confidentiality of their medical records?

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An absolute right is presumably one that cannot be outweighed, forfeited, and/or alienated. (Such a right can still be waived -- e.g., by allowing your doctor to show your medical records to someone you nominate.) Let's look at these three issues with regard to the assumed moral right to the confidentiality of one's medical records.

It seems evident that this right can be outweighed. Suppose, for example, that a society faces a serious risk of a pandemic involving a life-threatening and highly virulent pathogen (ebola, avian flu). May such a society require doctors to notify the authorities of any positive diagnosis so as quickly to isolate the patient and prevent contagion? With potentially millions of lives at stake, any right to confidentiality must surely give way.

Less confidently, I would also think that the right in question can be forfeited, at least in part. Here is a possible case. Suppose the right is not outweighed by the danger to a single person. So, even where AIDS is still a deadly disease, an AIDS patient has a right that his doctor not tell his sexual partner of his condition even when she (the doctor) has good reason to believe that her patient is having unprotected intercourse with his partner. This sub-right could, I think, be forfeited, for instance by malicious intent. What if the patient allows his doctor to tell his relatives but not his lover of his condition because "I really don't want my lover to survive me"? Or what if the patient tells his doctor that he plans to begin a sexual relationship with someone he envies so as to ruin this person's life? In such cases, I would think, the doctor should be morally (and legally) free to warn the intended victim if she cannot persuade the patient to desist.

I am uncertain about whether a moral right to the confidentiality of one's medical records might be alienable. By alienating this right, its bearer would not merely waive it on one occasion (by allowing the doctor to share medical information about him with a third party), but would give this right away, in whole or in part, for a period or forever. A film star, for instance, might then sell to a magazine the right to full and indefinite access to all her present and future medical records (or some more limited right to medical records -- concerning her pregancy status for the next 48 months, say). Should such contracts be enforceable? Or should the moral right be conceived so that it cannot be alienated in this way? I am inclined to the latter view, but a confident answer would surely require a lot of thought.

In conclusion. A moral right to confidentiality of one's medical records may well be inalienable, but it cannot plausibly be conceived as one that can never be outweighed or forfeited.

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