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Confidentiality, disclosure and doping in sports medicine
  1. M McNamee1,
  2. N Phillips2
  1. 1Department of Philosophy, History and Law, School of Health Science, Swansea University, Swansea SA2 8PP, UK
  2. 2Director Postgraduate Healthcare Studies, Cardiff University, Ty Dewi Sant, Heath Park, Cardiff CF14 4XN, UK
  1. Correspondence to Professor Mike McNamee, Department of Philosophy, History and Law, School of Health Science, Swansea University, Swansea SA2 8PP, UK; m.j.mcnamee{at}swansea.ac.uk

Abstract

The manner in which healthcare and medical professionals serve their athlete patients is governed by a variety of relevant codes of conduct. A range of codified rules is presented that refer both the welfare of the patient and the maintaining of confidentiality, which is at the heart of trustworthy relations. The 2009 version of the World Anti-Doping Code (WADC), however, appears to oblige all healthcare professionals not to assist athletes if they are known to be engaged in doping behaviours under fear of removal from working with athletes from the respective sports. In contrast, serving the best interests of their athlete patients may oblige healthcare professionals to give advice and guidance, not least in terms of harm minimisation. In so far as the professional conduct of a healthcare professional is guided both by professional code and World Anti-Doping Code, they are obliged to fall foul of one or the other. We call for urgent and pressing inter-professional dialogue with the World Anti-Doping Agency to clarify this situation.

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It should come as no surprise that healthcare professionals have been engaged in unethical conduct in sports1 and notably with respect to doping. This is true in such famous events as the Tour De France2 and in less elite3 and sometimes adolescent cases.4 Although no one suspects that these interventions are the norm, the pressures in elite sports and the money that is often at stake render it likely that the temptation to medically assist doping will always remain. The work of every healthcare professional is guided by ethical considerations over which their relevant professional body has legitimate governance. Doping has itself been the object of discussion over a number of years within sports-related healthcare professions, such as the British Association of Sport and Exercise Medicine, the International Federation of Sports Medicine (FIMS), the Association of Chartered Physiotherapists in Sports Medicine and the International Federation of Sports Physiotherapy (IFSP). Most have publicly declared the unacceptability of doping in position statements. Advice regarding what professionals may and may not do with respect to doping forms a part of their clinical professional guidance. The sources of guidance vary for the healthcare professional working in sports medicine from their profession to the World Anti-Doping Agency (WADA). In what follows, we examine a potential conflict in the duties of a healthcare professional who cannot simultaneously serve the patient's best interests while disengaging from giving advice regarding doping behaviours. In such a dilemma, the healthcare professional may either find that they are culpable of a doping offence or, in disclosing the confidential information of such, be “struck off” from their respective profession.

Ethical and professional guidance: the duties of a healthcare professional

In the UK, significant statutory bodies are the General Medical Council (GMC) and the Health Professions Council (HPC). The overarching professional bodies concerned are the British Medical Association (BMA) and the Chartered Society of Physiotherapy (CSP), whereas for those executing their job with athletic populations, a further variety of more specific professional groups are involved—for example, FIMS, British Association of Sport and Exercise Medicine, Association of Chartered Physiotherapists in Sports Medicine, IFSP, International Olympic Committee Sports Medicine Code.5 Although there are nuanced differences among them in relation to various aspects of professional performance, there are also easily discerned shared commitments. Among them, the following are of particular significance: (1) human dignity; (2) protection of health and safety; (3) confidentiality and privacy; (4) informed consent; and (5) duty of care.

Thus, according to the HPC (2008)6—for example, the duties of a registrant demand that:

  1. You must act in the best interests of service users.

  2. You must respect the confidentiality of service users.

  3. You must behave with honesty and integrity and make sure that

In a similar vein, the GMC7 advises its members to:

Given the broad duties that govern ethical conduct in healthcare and medicine, what specific duties arise in the contexts of sports medicine with specific respect to antidoping related expectations? We shall consider one aspect of the new World Anti-Doping Code (WADC).

The 2009 WADC8

The new WADC,8 which is the second version, has been accepted by >100 member states of the UNESCO. Its scope is greater than that possessed by the previous two. Although the processes of its development incorporated widespread consultation, certain aspects of its regulatory framework have brought considerable opposition. Notably, the International Football Federation (FIFA) has rejected its whereabouts clause, where athletes are required to post, 1 month in advance, their whereabouts for 1 h each day in order to facilitate random, out-of-competition testing. Equally, the European Union has publicly articulated its unease with what appears to be a disproportionate invasion of privacy.

One aspect of the WADC not commented upon is the tightening of regulations relating to the medical support team. The rationale for this tightening is well founded. Clearly, where doping was widespread in some sports, it was not the effect of isolated individuals trying to gain illicit advantage. Rather, access, prescription, dosage and removal of doping products/processes were the object of systematic organisation and control by the sports support system that included doctors, physiotherapists, sports massage therapists and coaches/managers.

Clearly, then, in attempting both to deter and, where necessary, punish members of the support system, greater attention was required to call to account the full range of individuals contributing to the doping offence. The section of the code stipulating antidoping violations was therefore modified to include the following article, relating specifically to administration of banned substances by a third party. Thus, Article 2.8 of the WADC8 states that a doping offence may be deemed to have occurred if a healthcare professional acts so as to satisfy any or all of the following conditions:

Administration or Attempted administration to any Athlete In-Competition of any Prohibited Method or Prohibited Substance, or administration or Attempted administration to any Athlete Out-of-Competition of any Prohibited Method or any Prohibited Substance that is prohibited Out-of-Competition, or assisting, encouraging, aiding, abetting, covering up or any other type of complicity involving an anti-doping rule violation or any Attempted anti-doping rule violation.(emphasis added)

(http://www.wada-ama.org/rtecontent/document/code_v2009_En.pdf)8

The offence carries with it certain prohibitions that should be put into effect by the relevant sports bodies themselves. WADA has no jurisdiction to punish sports medicine professionals. Two issues arise here. They both relate to the jurisdiction of governance. First, there will be variability as to how any particular professional body will implement the sanction to practitioners in breach of WADC. Other countries will also vary in their interpretation and application of the rule(s). International harmonisation of responses here is unlikely to be achieved, although one might ask whether global bodies such as FIMS or IFSP, or indeed the World Medical Association or the World Congress of Physical Therapy ought to take a policy lead for the sake of consistency. Only bodies who are signatories to the WADC are likely to implement its sanctions. Second, WADA recommends, although it has no power to do more than this, that the offending individual be banned from working with athletes within that body. (It is not, however, possible to ban them from all sports-related assistance. The scope of the ban refers predominantly to the sports governing body in which the offence emerged, though it extends to all signatories.)

At first sight, this appears to be precisely the kind of regulation required to capture fully the offending parties in the sports medicine community. On closer inspection, however, the list of verbs that enunciate the sanctionable offence may give rise to considerable professional and ethical concern. It is worth citing the list of verbs: “assisting, encouraging, aiding, abetting, covering up or any other type of complicity involving an anti-doping rule violation”. Each of these verbs can be used to capture wrongful conduct for which a sanction may be applied.

Take one example from the list to serve as an illustration of the problem faced by the healthcare practitioner: What precisely is “aiding and abetting” to be taken to mean? There is no particular legal or medical meaning of these terms. Courts, no less than healthcare professionals, must use the everyday meanings of these words, which are open to considerable ambiguity and interpretation. A number of everyday scenarios might reasonably be envisaged, therefore, that would render the healthcare professional vulnerable to a charge of “aiding and abetting” a doping offender. For the purposes of illustration, we shall now discuss one such difficulty in terms of conflicts of duties in a realistic hypothetical scenario.

Perhaps the most widely shared healthcare or medical norm is that of serving the patient's best interests while, ceteris paribus, respecting their autonomous decision- making as to the nature and means of any professional intervention. Thus, our healthcare professional, in line with the recent urgings of medical ethicists and sports medics,9,,12 is deeply concerned with the health of the athlete in their care (understood as their patient). Therefore, in line with general medical norms of respect for autonomy and acting in their best interest, they would consider it important that the athlete comprehends any information and advice imparted. Now imagine further that a patient informs the healthcare professional that they have—for example, been using off-label performance-enhancing products using the information on the web to determine their own dosages and cycles. Then they approach the healthcare professional, concerned with what they perceive to be a moderately serious condition. Let us imagine that our hypothetical healthcare professional is committed to doping-free sport. Nevertheless, healthcare professionals also feel compelled to make their patient aware of the potential consequences of inter alia continued use, lowering doses, arranging cycles in the least harmful way and doing their best to persuade the athlete to cease their doping practices. All to no avail, the apparently well-informed patient argues that it is their body and no one else's that is at risk, and that they deem continued doping a risk worth taking. To cap it all, they state in no uncertain terms, that the professional may, under no circumstances, inform third parties regarding the consultation. They threaten legal action if this route is taken by the healthcare professional.

Now, let us return to our wide-ranging WADC verbs and their potential collision with generally applicable professional norms, as cited above. Every healthcare professional is charged with serving the best interests of their patient. Part of this will entail respecting patient autonomy by imparting the relevant information and advice. Our hypothetical colleague appears to have met this obligation by informing the patient of dangers and recommending the cessation of doping. However, there is an obvious difficulty in what to do with this information, or “guilty knowledge”.13 Are the best interests of the patient served by releasing this information into the public domain? The client has forbidden this possibility and the healthcare professional is properly aware of their duty to respect the patient's autonomous decision-making. It is at this point, mindful of their differing frameworks for professional governance, that the relevant codes are consulted. For the purposes of argument, let us do the same and pay particular attention to the matter of patient confidentiality.

Patient confidentiality

A variety of ethical questions may have arisen in the mind of the committed antidoping healthcare professional. Should they deliberately overestimate risks in their communication to their patient? With whom, if anyone, should they share the information? Should they write up the notes in full or fail to document incriminating data? Should they leave such notes, full or otherwise, in the purview of others who might discover them? They conclude that the duties of care and of confidentiality appear to have priority.

The sources of the duty of care, of which confidentiality is a key part, are threefold. They may arise individually or jointly from contract, law or professional codes.14,,16 We focus here on the latter. Recall that the second duty of a healthcare professional as stated by the HPC is to the confidentiality of patient data. Later, the HPC standards policy6 elaborates this duty:

You must treat information about service users as confidential and use it only for the purposes they have provided it for. You must not knowingly release any personal or confidential information to anyone who is not entitled to it, and you should check that people who ask for information are entitled to it.

You must only use information about a service user:
  • to continue to care for that person; or

  • for purposes where that person has given you specific permission to use the information.

HPC standards (http://www.hpc-uk.org/assets/documents/10002367FINALcopyofSCPEJuly2008.pdf)6

It would appear then that our colleagues' hands are tied. Disclosure would be against the expressed wishes of the athlete patient and this would contravene their duty of care. Let us consider then what specific professional bodies have to say on the general matter.

Similar advice is provided by the CSP in their rules of professional conduct:

Information given by the patient is to be held in the strictest of confidence

Physiotherapy information is only released to sources, other than those immediately involved in the patient's care, when there is a signed patient consent form to allow this process.

(CSP core Standards of Practice 2005; http://www.csp.org.uk/uploads/documents/csp_core_standards_2005.pdf)17

With respect to patient confidentiality the GMC (2004)18 similarly holds that:

Patients have a right to expect that information about them will be held in confidence by their doctors. Confidentiality is central to trust between doctors and patients. Without assurances about confidentiality, patients may be reluctant to give doctors the information they need in order to provide good care. If you are asked to provide information about patients you must:
  • inform patients about the disclosure, or check that they have already received information about it;

  • anonymise data where unidentifiable data will serve the purpose;

  • be satisfied that patients know about disclosures necessary to provide their care, or for local clinical audit of that care, that they can object to these disclosures but have not done so;

  • seek patients' express consent to disclosure of information, where identifiable data are needed for any purpose other than the provision of care or for clinical audit—save in the exceptional circumstances described in this booklet;

  • keep disclosures to the minimum necessary; and

  • keep up to date with and observe the requirements of statute and common law, including data protection legislation.

(http://www.gmc-uk.org/guidance/current/library/confidentiality.asp#Principles)18

None of this seems to help the physician in our scenario, burdened by the weight of guilty knowledge. One can hardly expect the patient to support disclosure, however, much our earnest healthcare professional encourages them to do so. Conversely, the anonymised leakage of the information is hardly going to satisfy antidoping authorities given the strictures of WADC.

Although the BMA guidance recognises the general norms for maintaining confidentiality as a foundation of trustworthy relations, it notes that:

Patients should be able to expect that information about their health, which they give in confidence, will be kept confidential unless there is a compelling reason why it should not. There is also a strong public interest in maintaining confidentiality so that individuals will be encouraged to seek appropriate treatment and share information relevant to it. (BMA confidentiality toolkit) (http://www.bma.org.uk/images/Confidentiality_Toolkit_2008_tcm41-156761.pdf)19

Therefore, in the prosecution of this advice, everything is going to hang on whether there is a “compelling reason” to disclose the doping athlete patient. Yet it is far from clear what might constitute this. On the one hand, it might be said that preventing a star athlete from gaining gold, thus depriving other athletes (presumably clean) of their right to a fair contest, was compelling. However, the contrary position could also be argued. Thus, it might be argued that the dishonour brought upon relevant others by a potential doping scandal was compelling, although again a counterargument is also fairly obvious.

Disclosure: under what conditions is it justifiable?

Writing a professional code of conduct is not a task for the feint-hearted because it requires the author(s) to envisage the unlimited variety of contexts that may standardly apply in the patient–professional encounter. Thus, rules for disclosure against the general prohibition have been made. It is a widely accepted norm that information may be shared within a healthcare team to provide treatment that is in the best interest of the patient.20 However, the information shared should proceed on the authorisation of the patient, in line with their conception of best interests. Also, our scenario clearly does not satisfy disclosure under these terms. The GMC (2004)18 offers the following considerations. Against the general norm for confidentiality, disclosure may be justified:

Our example case appears not to fulfil these defeasible conditions. Although there might be cases of death or serious harm to the patient, it is not clear that others will be sufficiently harmed that disclosure is warranted. Second, to disclose the data to other regulatory antidoping bodies would be contrary to the rule because they would act upon it publicly against the patient. Third, it would be stretching credulity to think of the case as a medical emergency. It is clear that there would be room for argument if the particularities of each case were to alter.

Is the CSP Standards of Professional Performance any more helpful? In the first instance, it is problematic to assume that physiotherapists are even aware of such standards, given the non-standardised teaching of the issue.21 It argues that:

“Where confidentiality cannot be guaranteed, the patient should be informed of this fact and given the option to decline giving information.” Then further advises its members: “In disclosing information, the physiotherapist needs to consider their duty of care to the patient and their obligation to work within the scope of physiotherapy practice. Disclosure of information without consent and which breaches confidentiality must only occur within specific legal situations e.g. child protection or public interest.”

(http://www.csp.org.uk/uploads/documents/csp_core_standards_2005.pdf)17

Now this particular context that the CSP notes might make disclosure ethically acceptable cannot apply because our would-be physiotherapist has been made aware of the doping without the opportunity to prevent the athletic patient spilling the beans, so to speak. There also exists little hope of a form of conscientious objection to offer advice being justified alongside the norm to serve the patient's best interests. Let us consider the criteria that might be applied to the case. The WADC has legal analogues in certain European countries (eg, France, Italy, Slovenia) where those engaged in doping may be liable to criminal prosecution. However, there are no such laws in the UK despite recent urgings by the International Olympic Committee. It appears that only the athlete is being harmed, so the potential justification of disclosure to protect others from harm cannot reasonably be invoked. Might it be in the public interest? This route therefore appears equally problematic.

The rub

Despite the fact that the language for both the HPC standards and the advice by the GMC is much simpler and much more general than the CSP or BMA, each of them is fairly clear about where we stand regarding sharing confidential information with a third party if permission has been withheld. Our hypothetical scenario seems to fall below the standards required for the justified disclosure of the doping. Moreover, all professional codes exhort their members to serve the best interests of their patients. Passively allowing the off-label use and self “medication” do not appear consistent with this most general of a healthcare professional. Therefore, our would-be colleague appears duty bound to advise the patient on harm minimisation strategies. This very knowledge, however, allows the doping athlete a more successful strategy. Consequently, this can easily be seen as “aiding and abetting” them because the verbs are themselves so open-ended. Thus, in serving the patient's best interests, our colleagues become open to a charge of doping offence if the knowledge of the encounter becomes public, or of being “struck off” if they disclose the information against the express wishes of the patient. (Notwithstanding our remarks about the failure to provide a compelling justification for disclosure.)

Concluding remarks

We have argued that there is a tension with regards to a variety of professional codes and the new WADC. Insofar as healthcare professionals must serve the best interests of their patients, they must inter alia give advice and information as to the health choices of the doping athlete as well as respecting the privacy of the clinical encounter where doping choices may be revealed. Although it may be difficult to harmonise codes that cater for a variety of professional labour, dialogue between WADA, (inter)national sports governing bodies and relevant (inter)national healthcare professions is urgently needed to protect healthcare professionals who are committed both to their clients, their own and their employers' requirements for doping-free sport. Clearly, more precise guidelines on how such conflicts will be interpreted by both WADA and the relevant bodies should be made public to prevent professional dilemmas such as this from occurring.

Acknowledgments

The authors are grateful to the scholastic legal advice given Richard Griffith and Lauri Tarasti, and to Rob Dawson in relation to the problems raised by harm-minimisation strategies in relation to doctors working with drug users.

References

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Footnotes

  • Competing interests MM has been an educational consultant for WADA. NP was Head of Team GB Physiotherapists at 2008 Beijing Olympics.

  • Provenance and peer review Not commissioned; externally peer reviewed.

  • Patient consent Not obtained.

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