Cancer Genetics Risk Assessment and Counseling (PDQ®): Genetics - Health Professional Information [NCI] - Ethical, Legal, and Social Implications
Table 2. State Case Laws That Apply to Duty to Warn
|State Case Law||Description||Summary|
|Tarasoff versus Regents of the University of California[9,10]||Establishes moral duty to warn family members of risks unknown to them||In 1976, the California court judged that breach of confidentiality would have been justified in order to warn of a foreseeable and serious harm to an identifiable individual.|
|Distinct from genetic risk since the mutation is already present (or absent) in family members|
|Pate versus Threlkel[8,11,12]||Duty to warn family members of hereditary risk of cancer is satisfied by telling the patient to tell his or her family||In 1995, the Florida court judged that a physician had a duty to warn the patient that her children were at risk of developing thyroid cancer because the disease could have been detected and cured at an earlier stage.|
|Safer versus Estate of Pack[8,13]||Physician must take reasonable steps to warn family members of hereditary risk disease||In 1996, a New Jersey appellate court defined a physician's duty to warn immediate family members of risk of colon cancer; however, the court ruled in favor of the doctor because the patient had undergone rectal screening as a child, which indicated that she had been warned of the risk.|
|Molloy versus Meier[8,14]||Physician's duty regarding genetic testing and diagnosis of foreseeable disease risk extends beyond the patient to biological parents||In 2004, a Minnesota Supreme Court held that the physician failed to breach confidentiality to warn of hereditary disease risk because he did not inform parents of the diagnosis of fragile X syndrome in their first child. The parents state that this information would have influenced their reproductive decisions.|
At the federal level, there are strict nondisclosure policies governing private health information. The Standards for Privacy of Individually Identifiable Health Information (Privacy Rule), which summarizes the Health Insurance Portability and Accountability Act (HIPAA) of 1996, finds it permissible to disclose health information without consent when the public interest is at risk;[15,16] therefore, under certain conditions, there are exceptions to the nondisclosure policy include the following:
- There is serious or imminent threat to the health or safety of a person or the public.
- The threat constitutes an imminent, serious threat to an identifiable third party.
- The physician has the capacity to avert significant harm.
Professional societies and government advisory agencies have published their different positions and recommendations on communication between a physician and a patient's relatives in regard to disclosure of genetic disease.[4,8,17]
The Council on Ethical and Judicial Affairs of the American Medical Association (AMA) and the American Society of Clinical Oncology (ASCO) [18,19] encourage discussing the importance of patients sharing genetic information with family members. Specifically, the Council on Ethical and Judicial Affairs of the American Medical Association states that "Physicians …should identify circumstances under which they would expect patients to notify biological relatives of the availability of information related to risk of disease…(and) physicians should make themselves available to assist patients in communicating with relatives to discuss opportunities for counseling and testing, as appropriate." ASCO's position is that providers "should remind patients of the importance of communicating test results to family members… ASCO believes that the cancer care provider's obligations (if any) to at-risk relatives are best fulfilled by communication of familial risk to the person undergoing testing, emphasizing the importance of sharing this information with family members so that they may also benefit."[18,19] These organizations recommend that family members disclose genetic information.