Chapter 6: Avoiding Deception and Nondisclosure

Intro

Introduction

Children are taught to tell the truth and avoid lies. In clinical medicine, however, the distinction between telling the truth and lying can seem simplistic. Even doctors who condemn outright lying might consider withholding a grave diagnosis from a patient, covertly administering needed medications to a psychotic patient, or exaggerating a patient’s condition to secure that patient’s insurance coverage.

This chapter analyzes the ethical considerations regarding lying, deception, misrepresentation, and nondisclosure. Such actions might mislead either the patient or a third party, such as an insurance company or a disability agency.

Definitions

The following case illustrates some ways physicians might provide misleading information.


Case 6.1. Family request not to tell the patient the diagnosis of cancer

Ms. Z, a 70-year-old Cantonese-speaking woman, with a change in bowel habits and weight loss is found to have a carcinoma of the colon. The daughter and son ask the physician not to tell their mother that she has cancer. They say that people in her generation are not told they have cancer and that if Ms. Z is told she will lose hope. A colleague suggests that you tell the patient that she has a “growth” that needs to be removed.

The physician can elicit the family’s concerns by asking, “What do you fear most about telling your mother she has cancer?” Also the physician can validate the family’s feelings as the natural reactions of loving relatives and explain how bad news usually can be disclosed in supportive ways that help patients cope. Physicians should soften bad news by being compassionate, responding to the patient’s concerns, offering empathy, and helping mobilize support 14 , 15 . Often the physician can persuade relatives that the patient should be told of the diagnosis.

If Ms. Z chooses not to know her diagnosis, the physician should leave open the possibility that she might change her mind. Physicians should regularly ask patients if they have questions or want to discuss anything else about their condition.


Physicians might provide misleading information in different ways. Lying refers to statements that the speaker knows are false or believes to be false and that are intended to mislead the listener. For example, the physician might tell the patient that the tests were normal.

Deception is broader than lying, and it includes all statements and actions that are intended to mislead the listener, whether or not they are literally true. An example would be telling the patient that she has a “growth,” hoping that she will believe nothing is wrong. Other techniques used to mislead people include employing technical jargon, ambiguous statements, or misleading statistics; not answering a question; and omitting important qualifying information.

Misrepresentation is a still broader category, including unintentional, as well as intentional statements and actions. The statements might or might not be literally true. Unintentional misrepresentation might result from inexperience, poor interpersonal skills, or lack of diligence or knowledge. For instance, a physician might not tell Ms. Z she has cancer because the physician misread the biopsy report.

Nondisclosure means that the physician does not provide information about the diagnosis, prognosis, or plan of care. For example, a physician might not tell Ms. Z she has cancer unless the patient specifically asks.

Many writers on medical ethics use terms such as truth-telling or veracity. This book, however, avoids these terms because ethically difficult cases usually do not involve outright lies.

Ethical Objections to Lying

Traditional religious and moral codes forbid lying. The Old Testament, for example, exhorts people not to bear false witness. Lying and deception also show disrespect for others. Those who are lied to or deceived generally feel betrayed or manipulated, even if the liar has benevolent motives. Lying also undermines social trust because listeners cannot be confident that other statements by the person will be truthful.

This loss of trust is particularly grave in medicine because trust is essential in a doctor–patient relationship. In addition to undermining the speaker’s integrity, lying is further condemned because a single lie often requires continued deception.

Lying and deception are considered prima facie wrong; they are presumed to be inappropriate, and they require a justification [1], [2]. Many people regard lying as more blameworthy than other types of deception [1]. Some “white” lies, however, may be accepted as social customs that do not deceive anyone and might prevent people from feeling rejected.

The ethical issue is whether general prohibitions on lying also apply to deception and nondisclosure in situations like Case 6.1.

Deception or Nondisclosure to the Patient

Traditional codes of medical ethics did not require physicians to be truthful or forthcoming to patients. The writings of Hippocrates urge physicians to conceal “most things from the patient while you are attending him.” Until recently, many physicians in the United States either did not tell patients about serious diagnoses, such as cancer, or deceived them [3].

Withholding Bad News from a Patient

Reasons for Deception or Nondisclosure

Deception and nondisclosure prevent serious harm to patients

Although many families fear that a patient might lose hope, refuse medically beneficial treatment, or become depressed after learning a serious diagnosis, this is rarely the case [4]. Although sadness and anxiety might occur, major depression or suicide attempts are rare. Some patients, however, have active major depression or previously attempted suicide. In such cases, it would be justified to withhold the diagnosis while obtaining psychiatric consultation and assessing the likelihood of harm.

In exceptional cases, the risk of harm might be so serious as to justify withholding the diagnosis until the patient’s mental health improves. Another common example occurs in organ transplantation. A potential living donor may not want to donate but fears criticism or rejection from relatives. The donor evaluation team may say that he is not a suitable donor without specifying the reason.

Deception is culturally appropriate

In many cultures, patients traditionally are not told they have cancer or other serious illness. In one study, although 87% of European American patients and 89% of African American patients wanted to be told if they have cancer, only 65% of Mexican Americans and 47% of Korean Americans wanted to be told [5]. Some cultures believe disclosure of a grave diagnosis causes patients to suffer, while withholding information gives serenity, security, and hope [6].

Being direct and explicit might be considered insensitive and cruel. Families and physicians might try to protect the patient by taking on decision-making responsibility [7], [8]. However, the crucial ethical issue is whether the individual patient wants to know the diagnosis, not what most people in their culture would want.

Deception may enhance patient autonomy

Some patients might not want to know their diagnoses. It would be autocratic to force them to receive information against their will, even in the name of promoting informed decisions.

Reasons Against Deception and Nondisclosure

Most patients want to know their diagnosis

The vast majority of patients in the United States want to know if they have a serious diagnosis. In one survey, 94% of those asked said that they “would want to know everything” about their medical condition, “even if it is unfavorable” [9]. Ninety-six percent wanted to know a diagnosis of cancer. In a recent study, 87% of relatives of patients on mechanical ventilation for 3 to 5 days wanted doctors to discuss prognosis, even if it was uncertain [10].

The desire to be told a serious diagnosis is so strong in the United States that the majority of patients want radiologists to tell them of abnormal results at the time of the imaging study rather than waiting for their primary physician to do so [11], [12]. Even among patients from cultures in which nondisclosure is traditional, many want to be informed of their diagnosis [5].

Patients need information for decisions

For patients to make informed decisions, physicians need to disclose pertinent information (see Chapter 3). Under the doctrine of informed consent, doctors are expected to disclose such information without patients having to ask for it.

Disclosure has more beneficial than harmful consequences

Disclosure of the diagnosis and prognosis can benefit patients. Patients are more likely to adhere to treatment if they understand the rationale. Many patients with a serious diagnosis already suspect it. Silence might lead them to imagine that the situation is worse than it actually is. Patients often feel relieved when their illnesses are diagnosed and they can focus on treatment options.

Deception and nondisclosure require more deception

Deception and nondisclosure usually require additional, more elaborate deceptions. If a patient is not told the diagnosis of cancer, deception is needed to explain the reasons for surgery or other treatments.

Deception and nondisclosure might be impossible

In the long run, it is unrealistic to keep patients from knowing their diagnoses. A nurse, house officer, or x-ray technician might disclose it. When patients belatedly find out their diagnoses, they generally feel angry and betrayed. Thus, the practical issue is not whether to tell the patient the diagnosis, but rather how to tell.

Deceiving a Patient to Administer Needed Medications

The following case illustrates deception in the administration of medications [13].


Case 6.2. Covert administration of medications

Mr. E, a 32-year-old man with bipolar disorder, discontinued his medications and developed mania. He formed a specific plan to murder his father and kill himself. Mr. E’s sister persuaded him to come to the emergency department (ED), but he would not let anyone touch him or examine him and refused medications and admission. She said that previous violent confrontations with ED staff during periods of mania had caused physical and psychological injury.

Mr. E’s sister agreed to injecting haloperidol and lorazepam into a sealed juice container and gave him the juice. These events were documented in the medical record. Mr. E accepted the drink, and 45 minutes later was calm and cooperative and agreed to psychiatric hospitalization.

Mr. E’s surrogate gave permission to use deception. Furthermore, if Mr. E had indicated previously that he would prefer covert medication over forced parenteral administration in this situation, ethical concerns about deception would also be resolved.

The physician should debrief the patient after he recovers from his psychiatric crisis and address the issue of trust explicitly. Such disclosure shows respect for the patient and offers an opportunity to plan for similar situations in the future.


In Case 6.2, using deception to administer medications averted a risk of serious harm to a patient who lacks decision-making capacity, as well as to his father. Covert administration of medications in food is also common in the care of patients with dementia, who commonly refuse medications [13]. Many caregivers feel they have no other alternative in patients who lack decision-making capacity to administer drugs to treat serious medical problems, such as diabetes or infection. There are reasons for and against such deception, in addition to the reasons previously discussed.

Additional Reasons in Favor of Deception

There are no less problematic alternatives to prevent serious harm

Covert administration of medications may be the least bad of a set of poor alternatives. In Case 6.2, other options, such as physical restraints or parenteral administration of medications over the patient’s objections, are also ethically problematic because they violate the patient’s autonomy and bodily integrity, seem inhumane, and might injure the patient and staff. The strongest case for deception is as a last resort, after attempts to persuade the patient to accept beneficial care have failed.

The medication would restore the patient’s autonomy

In Case 6.2, untreated mania rendered Mr. E incapable of making an informed decision. Thus, although the deception violates his autonomy, its purpose is to restore his autonomy.

The patient’s surrogate authorizes deception

Mr. E’s sister agreed to the deception and to administer the medications that he needed. In trying to bring him to care, she acted in his best interests. As the surrogate of a patient who lacks decision-making capacity, she judges that it is better for him to receive needed care through deception than to remain in untreated mania.

Additional Reasons Against Deception

Slippery slopes

If allowed in one case, deception may become more widely used in other cases where the level of impairment is not as serious, when persuasion has not been vigorously attempted, or when adequate staffing and facilities are not available.

Long-term and indirect consequences

Abuses might occur if the practice of deception becomes widespread in the treatment of patients in psychiatric crisis or with dementia. Health care workers may not take time and effort to work with distressed patients [13].

Resolving Dilemmas About Misrepresentation and Nondisclosure to Patients

Physicians often can respond to dilemmas about informing patients of serious diagnoses without resorting to misrepresentation or nondisclosure (Table 6-1).

Table 6-1.Resolving Dilemmas About Deception and Nondisclosure to Patients

  • Anticipate dilemmas about disclosure.
  • Determine what the patient wants.
  • Elicit the family’s concerns.
  • Focus on how to tell the diagnosis, not whether to tell.
  • If you are withholding information, then plan for future contingencies.

Anticipate Dilemmas Regarding Deception and Nondisclosure

Dilemmas regarding deception and nondisclosure can often be anticipated. When ordering a cancer test, physicians can ascertain whether the patient wishes to be informed of the results: “Many patients want to know their test results, while other patients want the doctor to tell a family member.

I will do whatever you prefer. What do you want me to do?” After the physician has received the test results, inquiring about the patient’s preferences for disclosure might reveal the diagnosis. Simply asking the question suggests that the results are abnormal because there is no reason to withhold normal results from the patient.

In bipolar disorder or schizophrenia, relapses and refusal of treatment while mentally incapacitated are common. Patients in remission can be asked whether they prefer covert administration or physical restraint if they need to be given medications to prevent grave harm.

Respect the Patient’s Preferences

When a family requests that a patient not be told of a serious diagnosis, the physician should assess whether this is the patient’s wish or the family’s. Convincing evidence that the patient himself would not want to be told should be respected.

Address Concerns that Prompted the Request for Deception or Nondisclosure

The physician can often address these concerns without resorting to deception or nondisclosure.

Maintain Transparency and Accountability

Any decision to use deception or nondisclosure and its rationale should be documented in the medical record. Such documentation fosters accountability because the physician must explain her reasoning and others can review it.

Minimize the Amount of Deception and Its Adverse Consequences

If Ms. Z asks the physician directly what the test showed, there are strong arguments for responding forthrightly. The question indicates that the patient wants some information. Furthermore, patients realize that an evasive response is bad news, because physicians do not hesitate to tell patients normal results.

Long-term nondisclosure of cancer generally is not feasible. Physicians should not promise family members that the patient will not learn a serious diagnosis. Surgeons may decline to operate unless a competent patient gives informed consent. A nurse, an x-ray technician, or an clinic scheduler might inadvertently disclose the diagnosis. It is usually counterproductive to devise elaborate schemes to try to keep patients from knowing the diagnosis instead of helping them cope with the bad news.