Introduction

When you visit a healthcare provider, you expect confidentiality. It’s your ethical right, and it goes a long way towards establishing trust and fostering the therapeutic relationship. In 2002, the American Board of Internal Medicine (ABIM) Foundation, in conjunction with several other bodies, published a “Physician’s Charter” highlighting key components of medical professionalism, among them confidentiality. The Charter then goes on to qualify its statements: “Physicians recognize, however, that their commitment to patient confidentiality must occasionally yield to overriding considerations in the public interest (for example, when patients endanger others).”1

This mitigating consideration was most famously established as law by the landmark Tarasoff case in 1976. The case involved a disturbed young man who confided to his psychologist his intent to kill a particular woman (by the surname of Tarasoff) who had refused his advances. Neither Tarasoff nor her family had been warned of his threats, and tragically the young woman was indeed murdered by this man. The Supreme Court of California ruled that mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient.2

How does Jewish law (halachah) approach this topic? What are the expectations when it comes to confidentiality, and in what circumstances can this confidentiality be overridden?

Basic Halachic Approach to Confidentiality

In halachah, the right to confidentiality exists not only between healthcare provider and patient, but between any two individuals. The Torah states, Lo telech rachil b’amecha, “You shall not go around as a gossipmonger amidst your people.”3 Maimonides, in his codification of halachah, elaborates on this: “Who is considered a ‘gossipmonger’? One who peddles information from one to another, saying ‘This is what so and so said’; ‘This is what I heard about so and so.’”4 Maimonides explains there that simply repeating gossip, even if true and even if not derogatory per se, is akin to “destroying the world.” (This form of non-derogatory gossip is known as rechilut. Gossip that is derogatory is worse and is known as lashon hara, and derogatory gossip that is untrue is worse yet and known as motzi shem ra.5)

So as a halachic default, when someone confides in his friend, the friend is duty-bound to maintain that information in confidence and not gossip about it to others.

Overriding Confidentiality to Save Others

However, as we’ve seen from the Tarasoff case, there are times when withholding information can have devastating effects on others, and perhaps confidence should, in fact, be broken. Indeed, the same verse that prohibits gossiping continues on to say, Lo taamod al dam re’echa, “Do not stand [idly] by your fellow’s blood.”6 According to many commentators,7 this second half of the verse is in fact qualifying the first, essentially saying the following: When are you prohibited from gossiping and maintaining a confidence? Only when maintaining that confidence will not result in your fellow’s blood being spilled. Otherwise, you cannot stand idly by and you must break that confidence to save your fellow.8

This application of the second half of the verse is codified into law by Maimonides, who states that if one knows of a plot to harm another, the verse “Do not stand idly by” mandates that he must inform that person.9 Elsewhere, Maimonides explicitly states that this mandate applies not only to the threat of bodily harm to one's fellow, but even financial harm.10

What are the specifics of this overriding of confidentiality? What if you only suspect there’s a threat, but you’re not entirely sure? What if your disclosing this information is unlikely to avert the danger anyway? Does this apply even if one swears an oath to maintain his friend’s confidence?

Rabbi Yisrael Meir Kagan, a great Jewish sage in pre-war Europe, wrote extensively on the importance of not engaging in rechilut and lashon hara, and is commonly known as the “Chofetz Chaim” after the name of his magnum opus that discusses these topics.11 He addresses this issue of overriding confidentiality and writes that although one may override something told to him in confidence, if this information involves a threat12 to a second person, there are several critical conditions that must first be met before one may break confidentiality:13

1. One must be relatively sure that this information told to him will result in harm to the second person.14

2. When informing the second person of this information, one must tell the facts exactly as they are and not embellish at all.

3. One can only reveal this information if there is no other possible way to prevent this harm to the second person.

a. As a component of this, the Chofetz Chaim states that one should look deep within himself to evaluate and ascertain that his revealing this information is driven only by his concern for this second person, not by some deeper desire for vengeance against the person from whom he heard the information.15

4. One can only reveal this information if he is fairly certain that this second person will heed the information seriously and take the necessary precautions.

To summarize, if one is told information that he is relatively sure will cause harm to his friend, and if there is no other way to avert this harm and if he can be fairly sure his friend will take heed, then he may tell over the information without embellishment.

Extenuating Circumstances

What about when one swears to his friend that he will not disclose this information? There’s a concept in halachah that if one takes an oath to act in a way contrary to the Torah, the oath does not take effect because it has already been preceded by the conflicting oath all Jews took at Mt. Sinai to observe the Torah.16 Therefore, even if one swore that he would not reveal the confidential information told to him, halachah does not consider that oath to be binding if there’s threat to another involved because he is already duty-bound by oath to not stand idly by his fellow’s blood.17

A question that often arises, particularly in healthcare settings, is whether you must break confidentiality and warn your friend if by doing so you will personally incur penalties resulting in significant monetary loss.18 Another way of framing this question is as follows: The halachic duty to warn a friend of danger is mandated by the verse “Do not stand idly by…”, which is a prohibition.19 The question then becomes, up to what degree of financial loss is one duty-bound to sustain if necessary to carry out the Torah’s commandments? At what point does the Torah allow one to forgo a commandment due to the exorbitant cost?

The Code of Jewish Law states that one must spend up to one-fifth of his assets in order to fulfill a positive commandment and his entire fortune in order not to violate a prohibition.20 There is a dispute among halachic experts with respect to a prohibition that one violates by being passive21; some rule that it is treated as a positive commandment that caps at one-fifth of one’s assets,22 and others treat it as a regular prohibition.23

The prohibition of “Do not stand idly by . . .” is violated by being passive, and therefore the extent of the monetary loss one is expected to bear as a result of informing his friend of danger is subject to this dispute as well.24 25 (If disclosing this information will result in personal bodily harm, not just financial harm, this is akin to the discussion on whether one is required to donate a kidney to save a friend. See article here.)

Specific Applications Related to Healthcare

We now have a general framework as to the extent and limits of confidentiality, based on the conditions put forth by the Chofetz Chaim and the other factors touched on above. We’ll now discuss more specific applications of the above concepts discussed in the halachic literature with respect to healthcare providers.

In addition to the more clear-cut Tarasoff-like cases,26 there are scenarios where the provider is aware that the patient poses some threat to society but the patient is not taking the responsible steps to avert that threat. For example, a patient who suffers from uncontrolled epilepsy but continues to drive his car runs the risk of injuring or killing not only himself but also an innocent bystander. What is the responsibility of the healthcare provider in this situation? This question was posed to the late Rabbi Waldenberg,27 one of the great 20th-century halachic experts, who ruled that if the provider does not trust that the patient will take the necessary precautions himself, not only is the provider permitted to tell the relevant authorities of this information, he is obligated to inform them.28 He reiterated further that any physician’s oath to maintain confidentiality does not apply in this situation, because there are innocent lives at risk.29

An additional scenario arose in a hospital in Israel, where a patient was diagnosed with AIDS, the most serious stage of HIV infection.30 The patient, embittered by the news, told the healthcare providers that upon discharge his intention was to infect as many others as he could. Rabbi Yitzchok Zilberstein, a prominent halachic expert, was consulted and he ruled that the population potentially vulnerable to his threats should be informed of the situation in broad terms, but without mentioning the name of the patient.31 This would allow members of the public to take the necessary precautions, but at the same time protect that man’s privacy.32

Dating and Marriage

How does the above discussion involving maintaining confidentiality relate to a couple who are dating and considering marriage? If there is a couple who are seriously dating or engaged to be married, and you know of potentially devastating information relating to one of them, must you reveal this information to the other? Although this question applies to anyone, it has specific relevance to healthcare providers, as they are often privy to more sensitive information.

We can attempt to answer these questions using our established ground rules about breaking confidentiality if there’s a threat of harm to another. If the information being withheld is such that if the other party would find out about it, he or she would call off the marriage, then not disclosing that information would mean standing idly by and allowing someone to head into a marital situation with potential for harm.33 34

The Chofetz Chaim, when discussing the allowances for breaking confidentiality and disclosing sensitive information, indeed applies this standard. The Chofetz Chaim writes35 that if there is a couple engaged to be married and one knows that the groom possesses “serious deficiencies,” to the extent that if the bride would know she would no longer want to enter into this marriage, then “Do not stand idly by . . .” mandates that one must disclose this information.36 Therefore, if one is privy to information so significant that if disclosed it would likely cause the match to be called off, one is obligated to disclose that information.37 38

Some practical applications of this have been discussed in the halachic literature. In one instance, a Jewish physician was aware of a young woman engaged to be married who did not disclose that she suffered from a condition that would prevent her from ever bearing children. Rabbi Waldenberg responded to this physician that the mandate of “Do not stand idly by . . .” obligated him to disclose this information to the groom and thereby spare him the emotional and financial hardship.39 (He advised the physician to first speak to the bride privately and attempt to persuade her to disclose this information to the groom herself.)

In another situation, a physician was aware that the groom suffered from advanced metastatic cancer but the bride was not aware; there, too, the response was that the physician must notify the bride to save her from all the potential distress.40 In a similar vein, in a situation where the groom did not disclose that he had AIDS, the halachic ruling was that the physician had an obligation to notify the bride.41

The issue of mental illness is discussed by Rabbi Moshe Stern, one of the great 20th-century halachic experts, in his work titled Be’er Moshe. There, Rabbi Stern writes of a groom who suffered from severe, debilitating depression but had managed to hide this information from his bride. Rabbi Stern ruled similarly that any person privy to this information, not only the groom’s physician, was duty-bound to disclose it to the bride. Given the strong possibility that she would call off the marriage, disclosing the information would potentially save her from years of heartache.42

As a postscript to this responsa, Rabbi Stern adds a very important caveat: Anyone involved in such a serious decision to disclose sensitive information must be extremely certain that his or her actions are motivated completely by a sincere desire to help and alleviate suffering, and that there is no shred of personal vendetta or ulterior motive mixed in.43

Conclusion

In conclusion, we’ve seen that the prohibition of disclosing information told in confidence is the halachic default, but at the same time is mitigated by the halachic mandate to “not stand idly by your fellow’s blood.” Therefore, if there are times that maintaining confidentiality will result in harm to another, then that information can and must be disclosed, if certain conditions are met.

It’s worth reiterating the wise words of Rabbi Stern, that in sensitive matters such as this, it’s critically important to ensure that there are no personal motives or vendettas mixed in, and that our course of action is motivated only by pure love for our fellow man.

It is said that G‑d Himself is bound to keep the commandments in the Torah.44 Therefore, just as we may not stand idly by our fellow’s blood if we have the power to act, so, too, may the Almighty and Omnipotent G‑d not stand idly by our blood, and may He redeem us from our bitter exile into the messianic era.