Medical Confidentiality: Does Protection End When Peril Begins?

On Tuesday, March 24, Germanwings Flight 9525 en route from Barcelona, Spain to Düsseldorf, Germany, crashed in the French Alps, leaving no survivors. Two days into the investigation, the cause of the crash was announced: After locking the plane’s captain out of the cockpit, co-pilot Andreas Lubitz had deliberately brought the aircraft down, killing himself and the other 149 passengers on board. Initially considered a terrible accident, the crash of Flight 9525 proved to be a monstrous mass homicide.

Now that the cause of the crash is clear, one question remains—why? Information retrieved from the “black box” left no doubt that Lubitz purposely brought the plane down, but his motive remains unknown.

After the tragedy of 9/11, it is hard to imagine that intentionally flying a crowded aircraft into a mountainside could be anything but an act of terrorism. And yet the authorities have sufficient evidence to say that Lubitz’s crime was of a completely different nature.

It has been revealed that the co-pilot had a history of depression and at one point received treatment for suicidal tendencies. A search of Lubitz’s home uncovered therapists’ notes declaring him unable to work, including on the day the crash occurred. The fact that said notes were found torn into pieces lead the investigators to believe that the airline was not aware of Lubitz’s mental health state. We still don’t know his exact diagnosis, but whatever the nature of Lubitz’s mental disorder, it is believed to be the cause of his ferocious crime.

“Why On Earth Was He Allowed to Fly?” read the front page of Daily Mail. Some are offended by this question because they believe it implies that individuals suffering from depression are a threat to those around them. Others cringe at Daily Mail’s headline because they see it as suggesting that mental illness isn’t simply a health issue that needs to be addressed but a condition that renders one untrustworthy, unreliable, and unfit for jobs that come with a lot of responsibility (like, for instance, flying a plane).

But all potential implications and interpretations aside, we can’t deny that in the context of what happened, “Why On Earth Was He Allowed to Fly?” is a fair and legitimate question to ask. Seriously, why is it that after a mental health professional signed a note declaring Andreas Lubitz UNFIT TO FLY, the pilot was able to show up to work all blasé, completely ignoring his doctor’s instructions, and then purposefully fly an aircraft carrying 149 people into the mountains?!

The answer, as it turns out, is very simple—medical confidentiality.

In Germany, the principle of medical confidentiality receives constitutional protection. Article 2(1) (freedom of self-determination) and 1(1) (respect for human dignity) of Basic Law have been interpreted by the country’s Federal Constitutional Court as protecting the right of the individual to decide autonomously whether or not to reveal intimate facts, which obviously include the facts of one’s medical history. Thus in Germany, physician’s breach of medical confidentiality is considered a criminal offense. In other words, if a pilot consults a general practitioner and the latter certifies him unfit to fly, that doctor has no duty and, in fact, no legal right to notify the aviation authorities that their staff member might be a threat to himself or to others.

Since doctors can’t report anything except epidemic diseases and employers cannot access their employees’ medical records, the current system in Germany relies on individuals reporting any health problems that might interfere with their work directly to their superiors. A case like Lubitz’s highlights how unreliable and incompetent this system really is. Instead of acting in a reasonable, prudent manner and presenting his sick note to Germanwings, Lubitz tore it up. Logically, a debate has unfolded over whether medical confidentiality laws should be softened, at least for professions that are entrusted on a daily basis with the safety of large numbers of people.

It remains an unfortunate fact in our society that seeking psychiatric help is so often stigmatized. The guarantee of confidentiality is what makes a therapist’s office a safe environment, free of judgment and prejudice. Assurance that doctor-patient confidentiality will not be breached is necessary to maintain trust; and trust, in turn, is central to the accuracy of diagnosis and the effectiveness of treatment.

But should confidentiality laws be so strict? Shouldn’t the public interest in safety from violent assault outweigh the individual’s right to doctor-patient privilege? Sure, the therapist owes a legal duty to his patient, but doesn’t he also bear a duty to protect his patient’s potential victim? Is there negligence in failing to warn? We know that a doctor is considered liable to persons infected by his patient if, having diagnosed him with a contagious disease, the physician failed to warn the patient’s family members—why then should a case of emotionally unstable person with suicidal tendencies or murderous impulses be treated any different?

If medical confidentiality played a primary role in allowing Lubitz to conceal a condition that made him a threat to the safety of his passengers, then confidentiality laws are in definite need of reexamination. Obviously, protecting one’s privacy is of paramount importance, but as it has been articulated by the Supreme Court of California back in 1976, “the protective privilege ends where the public peril begins.”

After the Sandy Hook shooting in 2012, several states ruled in favor of expansion of the circumstances under which mental-health-care providers can report a potentially violent patient without fear of legal consequences. It took a horrifying elementary school massacre to convince the public that softer confidentiality regulations are a reasonable price to pay for the lives of possible victims that may be saved.

Both law and psychiatry recognize that determining potential violence is not an exact science, but a complex process full of uncertainty and ambiguity. Yet while we can’t know for sure, it’s fair to say that there’s a very high chance that had the airline been alerted of Lubitz’s condition, the March 24 tragedy could have possibly been prevented.

Flight 9525 crashed leaving no survivors but many questions about doctor-patient confidentiality, medical oversight of pilots, and overall flight safety protocols. These questions are complicated and controversial, but it is our duty to continue the important debates, triggered by the Germanwings tragedy.

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