Don’t turn doctors into snitches
‘Hard cases make bad law,” goes an old legal maxim. The latest case that may end up illustrating it is that of the German pilot who deliberately flew his airliner into a mountain last week, killing everyone on board. Cases don’t come much harder than this. The bad law it may bring about would oblige physicians to breach doctor-patient confidentiality if they think that doing so is in the public interest, and enable the authorities to lay charges against a physician for not having thought so if events prove him wrong.
Why would this be a bad law? After all, what is bad about obliging a doctor to let an airline know that one of its pilots may be suicidal? Apparently Andreas Lubitz, the 27-year-old first officer, who locked his captain out of the cockpit before diving his Airbus into the French Alps, had been under treatment for an ailment of a psychiatric nature that his employer, Lufthansa, seemed not to know about. Had the doctors who treated Lubitz been required by law to inform Lufthansa, the airline may have grounded the young pilot and 150 passengers and crew would still be alive. What could possibly be wrong with that?
Nothing. That’s why it’s a hard case. Obliging doctors to report mental conditions would be a bad law because it would turn doctors from healers into snitches.
Never mind that, someone might say; that’s a philosophical abstraction. Would such a law make flying safer? I don’t think so. As details are beginning to emerge, it appears that the young pilot had been seeking medical help for psychiatric problems as well as — possibly — for his eyesight. He had been doing so for some time. He told no one — not his friends, not his colleagues, not his employer. Chances are, if he thought he couldn’t rely on medical confidence, he wouldn’t have told his doctors.
In one sense, this isn’t surprising. Few people want to advertise their medical problems, whether they’re pilots or dogcatchers. Even a dogcatcher may lose his job, but an airman who has trouble with his mental balance or his eyesight may have trouble retaining his flying status. He’d have to worry not just about his airline but the licensing authorities.
In most jurisdictions, an airline transport pilot’s license, such as Lubitz needed to act as co-pilot on a scheduled airliner, must be medically validated every six months. Aviation medicals include vision tests, so if Lubitz had failed his, he couldn’t have renewed his medical. This would have grounded him automatically. If you don’t pass your medical, you don’t fly.
Mental fitness raises more complicated issues. Aviation medicals don’t include psychiatric evaluations, at least not routinely, so it would have to be a patient’s own complaint or some blatantly bizarre behaviour to call an aviation medical examiner’s attention to a mental problem. Flight surgeons aren’t mind-readers, and pilots don’t wear their psychiatric problems on their sleeves.
Shouldn’t the private doctors Lubitz consulted have been duty-bound to inform his employer or the authorities? This immediately raises the next question: Informed them of what? That a pilotpatient suffered from anxiety? Depression? Insecurity? Sui- cidal thoughts? Unrequited love? Those and a thousand similar conditions are the very complaints for which men and women in all walks of life consult shrinks, gurus, naturopaths or spiritual advisors every day. Industrialists do it, generals do it, bus drivers do it, journalists do it, and so do heart surgeons and pilots. Human beings have fragile equilibriums, and seek to stabilize them with a range of therapies from the conversational to the pharmaceutical. They’re generally successful. They endanger no one in 99.9% of the cases.
It was predictable that voices in the media would call for such laws following last Tuesday’s tragedy. Some are doing so already. This in spite of the fact that of the thousands of planes that reach their destinations every day, adding up to millions over aviation history, we know of maybe a dozen cases where we suspect a suicidal pilot to have intentionally crashed an aircraft with passengers on board. One is too many, of course, but to call the risk minimal is an understatement.
Medical confidentiality doesn’t preclude physicians from reporting what they perceive to be a danger to the public. The law merely lets doctors decide what to perceive and what to do about it, keeping in mind the relationship they have with their patients, which is one of confidence and trust. Exchanging this for an obligation to play it safe would do the public no favour. We may be air travellers one day but we’re patients the next, and it’s impossible to remove the confidentiality that protects people in the cockpit without removing it from people in the cabin.
The Hippocratic oath calls on doctors to do no harm, not to make sure their posteriors are covered. And if we can’t avoid hard cases making bad laws, I suggest a genuinely bad law that would do more for less. Requiring skippers to wear catheters in the cockpit would have prevented last week’s disaster at less social cost than turning doctors into informers.
We may be air travellers one day but we’re patients the next