Monday, February 25, 2019

Evening Note for Monday, February 25

Thought for the Evening: Humanitarian Traditions and Cliental Privilege

I have previously noted that humanitarian traditions naturally tend to develop customs of privileged communication. Because they are concerned with helping people, which requires communication, and because they develop customs of deferential responsibility to those they help, which requires protecting those they help, they tend to create forms of confidentiality that have to be maintained. One can give a more abstract account of it by recognizing that humanitarian traditions, by their nature, are concerned with matters directly and immediately relevant to individual human personhood and dignity, so that their central communications are not public but cases in which cooperation is happening on a matter that is not, as we say, just anyone's business. In cases where the humanitarian tradition forms a fully developed profession, this confidentiality is found in specific forms that we could call cliental privilege. Examples would be doctor-patient confidentiality, attorney-client confidentiality, and ministerial confidentiality (sometimes called clergy-penitent confidentiality). In cliental privilege, we take it to be the case that the professional is actually not working on his own behalf, and thus must act as the client's representative, not taking it upon himself to make decisions with regard to publicizing communications. In a sense, the professional is working within the sphere of the client's own personal dignity; failure to respect communications within that sphere is a violation of their dignity, and thus inconsistent with the very purpose of a humanitarian tradition.

While these forms of cliental privilege are all in some sense the same kind of thing, humanitarian traditions custom-build their ethical components, so each will tend to be tailored to the ends of the humanitarian tradition and have a somewhat different set of ethical obligations associated with it than others would. Exceptions are also handled differently; for instance, doctors may justifiably breach, and indeed may be expected to breach, confidentiality to avoid harm to others; because law deals with more complicated matters, this will less often provide a justification for lawyers, but lawyers are expected to breach confidentiality in cases of when the communications themselves are being used for crimes. Lawyers can breach confidentiality in matters of payment in ways that would not be generally acceptable for doctors and would not generally be relevant to religious ministers. The reasons for these exceptions are all end-based -- they are cases of upholding the spirit rather than the letter of the confidentiality. If lawyers could not disclose confidential communications in cases where the client is failing to pay them, this would lead to lawyers refusing to represent people who did not pay up front, thus defeating the humanitarian purpose of giving people the protection of legal representation. As 'do not harm' has historically been regarded as the highest obligation of physicians, for a physician to disclose confidential information to prevent medical harm supports the reason why the confidentiality exists in the first place.

An under-considered question with regard to the ethics of cliental privilege is the nature of obligations created for third parties. Attorney-client privilege is generally considered only with respect to the attorney and the client; but what about third parties who discover (e.g., by accident) the information? Third parties that are part of the profession would seem constrained by the same obligations, allowing for some differences in how different parties might relate to the ends of the profession. Third parties who are not professionals, on the other hand, would not be bound by professional codes of ethics, and, except in cases where they are bound by contract or law, would not have the same obligations. But if the argument above is at least more or less right, there would have to be more general moral obligations of confidentiality, of which the professional codes are merely specific formulations for the purpose of the profession.

Cliental privilege is a topic that I think should more generally be considered in both ethics and political philosophy, in part because I think there is a continual tendency on the part of governments to try to restrict cliental privilege. This is a serious matter. Cliental privilege is a protection of the person qua person in some field or domain, so intrusions on it can be severe restrictions of freedom, and, indeed, acts of oppression. I would go so far as to say that the state has no right at all to interpose itself where it is not strictly required for the ends for which the state exists, and even then only insofar as is strictly required for those ends. One can well imagine there are cases where the state needs to know medical information -- e.g., in cases requiring enforced quarantine; one can more broadly recognize cases in which the state would be the appropriate agent for enforcing confidentiality and that this might require certain kinds of reporting. But basic and well-established forms of cliental privilege are essential to the functioning of a free society, or even a tolerable one; the presumption should be that they are to be held as sacrosanct -- that interfering with them is interference with due process and, at times, a usurpation of power.

We should, in fact, see these kinds of things as the natural expressions of human freedom.

There are forms of privileged communications that do not fall under cliental privilege. Two obvious cases are the private communications of spouses and the seal of the confessional. That marital communications can be privileged follows from the very nature of marriage itself; spouses are within each other's personal spheres as a matter of moral duty and obligation. Clergy-penitent privilege is applicable to Catholic priests, but the seal of the confessional is a completely distinct form of privilege that arises from the nature of sacramental confession: it is a divine tribunal, and thus is a sort of God-soul confidentiality. In Catholic tradition, clergy-penitent privilege is breachable -- it is much less strict as a form of a privilege than medical or legal confidentiality is, at least when it does not itself involve some sort of legal confidentiality under canon law -- but the seal of confession is by its nature unbreachable, barring dispensation from God Himself, which, of course, is somewhat difficult to obtain. The two kinds of privilege are simply different, although they are unfortunately often confused.

(Of course, there are kinds of confidentiality that are not in any strict sense privileged communication of the sort we are talking about here -- confidentiality between friends, confidentiality based on contract, and the like. In general these kinds of confidentiality either fall outside of humanitarian traditions or, if part of a humanitarian tradition, concern matters that are not central to it.)

Previous Evening Notes on humanitarian traditions:
* Humanitarian Traditions
* Prima Facie Duties and Humanitarian Traditions

Various Links of Interest

* Myles Werntz, The Saint of the City Goes Rural: Dorothy Day and the Life of the Land

* Leah Shaffer has an interesting discussion of the Ik, a tribe in Uganda who have often been called "the loveless people", due to the description of them by anthropologist Colin Turnbull in the 1960s; he characterized them as extremely ungenerous and harsh to those in need, and that has been their reputation ever since. As it turns out, however, Turnbull was observing them during one of the worst famines the Ik have experienced in living memory, when everyone was barely getting by; the Ik are in reality quite as generous as anyone else, and have a religion that takes generosity to be rewarded by the spirits.

* John Wilkins, Lucretius and the papal secretary, on the Epicurean revival in the Renaissance. [ADDED LATER: It looks like John's website may have a bad ad or widget or something that tries a malicious redirect. I've blocked the link for the moment and will replace it later if it becomes clear that the problem is fixed.]

* John Bowen, Unmutual Friend, discusses Charles Dickens's mistreatment of his wife; this has been known about from mostly indirect evidence, but Bowen notes a channel of evidence about it that likely has Catherine Dickens herself as a source.

* Corey Robin, Why Has It Taken Us So Long to See Trump’s Weakness? discusses the "Historovox", the weird mix of academic theorizing and punditry that has become popular among people who like to pretend that their political opinions are much more intelligent than the political opinions of others.

* Ellie Murray, What is a cause?

* Hank Shea, Curb the crisis: 10 essential lessons for investigating church leaders. It's surprisingly thoughtful and intelligent for something in the National Catholic Reporter.

* John Brungardt, Some Mistakes Due to What is Per Accidens

* Philippa Foot on whether an Ought can be derived from an Is.

* The "National Popular Vote Compact" scam, which involves no national popular vote at all, is coming into the news again, as Colorado is, like other state legislatures stupid enough to fall for the scam, set to pass a law in its favor. I have repeatedly pointed out the outright lies that have been used to try to press this corrupt scheme to get state legislatures to disenfranchise their own voters in Presidential elections on the pretext that they are putting forward a national popular vote when they aren't. And we inch step by step toward it. You know I don't usually go crazy about politics, but I tell you true: this is the single most serious threat to the Republic currently on the field.

Currently Reading

Anne Bronte, The Tenant of Wildfell Hall
Etienne Gilson, The Unity of Philosophical Experience
Plotinus, The Enneads
Michael Flynn, In the Lion's Mouth

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