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Consent to publication
The BMJ Ethics Committee has considered the matter of publishing information from the doctor-patient relationship without consent. The situation commonly arises in the "fillers" section of the journal, which is meant to provide thought provoking clinical anecdotes. The committee took the view that a strict application of the consent requirement was excessively restrictive, and it was felt that the Journal's policy should be re-examined.
In order to clarify the situation, the Committee has considered the policy set out in the 1998 editorial and recommends the following revised policy:
- Publication of any personal information about a patient will normally require the consent of the patient. This will be so even if identifying details are removed.
- Personal information about a patient will not be published over the patient's refusal, except in the most exceptional circumstance of overriding importance to public health.
- Publication without the consent of the patient will be permitted if all of the following conditions are met:
- The patient who is the focus of the article is untraceable in order to gain consent without an unduly burdensome effort or it is impossible or unreasonable to expect consent to be obtained from the patient or (if directly affected) the patient's next-of-kin.
- The article contains a worthwhile clinical lesson or public health point which could not be as effectively made in any other way. ("Worthwhile" is intended to sit on a spectrum between "interesting" which is the publication threshold with patient consent, and "overriding public health importance", which is the publication threshold over patient refusal.)
- A reasonable person in the patient's position would not be expected to object to the publication of the case. (This requires an assessment of the intrusiveness of the disclosure and the potential that it has for causing the patient, or the patient's family, embarrassment or distress. Particular attention must be paid here to differences of cultural and social attitudes. It must not be assumed that what is a matter of indifference in one society will have the same status in another.)
- The risk of identification of the patient is minimised by measures designed to prevent the identity of the patient being revealed either to others or to the patient himself or herself. (These measures will include anonymisation of the case and/or the author. The publication without consent of photographs will require particular scrupulous attention to anonymisation.)
- The committee will review all instances of publication without consent under these guidelines on an annual basis to audit compliance with the guidelines and also provide data for continuous improvement of the guidelines.
These criteria prompted the committee to recommend publication of the case from South America mentioned above, and recommend against publication of the case of the patriarchal family because it was felt that this would cause the patient embarrassment and so a reasonable person would object to publication.
The committee also considered several situations, which should be distinguished from publication of information from the doctor-patient relationship, addressed here including:
- Publication of research results since these arise from the researcher-participant relationship. Research ethics committees regulate consent and confidentiality in research. Qualitative studies may pose special challenges regarding whether a study participant is identifiable.
- Fictional cases since these arise in the imagination of the author and not the doctor-patient relationship. Intentionally misleading the reader by presenting fiction as fact, as in a recent case about suicide among aboriginal peoples (JAMA 2000;284:1897–8; BMJ 2001;323:472), is not permitted.
- Publication of information including photographs obtained from the public domain including wire services and news archives. This information was not obtained from the doctor-patient relationship but rather from the journalist-subject relationship. This information is in the public domain and it is ethical to republish it in BMJ. Such publication may offend some readers, as in the case of a photo of a young boy with a learning disability published alongside an article on methylphenidate (rapid responses to BMJ 2001;322:259). Editors may want to exercise discretion in publishing such information but this is a matter of etiquette, not ethics.
- We also recognise that in the multimedia environment different media pose different challenges in relation to anonymisation. This may be easiest with text, and more difficult with photos and video. Data relating to aggregate anonymised tissue and other samples will not normally be considered to be personal information relating to a particular patient and publication of research findings connected with such samples does not require patient consent.
The objectives of this policy are to ensure the protection of patient confidentiality while at the same time seeking to facilitate the serious communication of medical information. The Committee recognises that an absolutist doctrine of confidentiality would effectively inhibit medical education and research, and that therefore a balance must be achieved between the patient's reasonable expectations of confidentiality and the need for scientific information. The policy set out above should afford adequate protection for confidentiality without making informative exchanges impossible. Our position recognises that ethics is rarely about absolutes, context matters, and judgment is essential.