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Opinion 2.136 - Genetic Information and the Criminal Justice System

The release of genetic information from a physician’s records without the consent of the patient constitutes a breach of confidentiality. Opinion 5.05, "Confidentiality," acknowledges that law and overriding social considerations may permit physicians to disclose confidential information in limited circumstances. However, such circumstances present ethical challenges. The following guidelines are intended to aid physicians in considering the ethical basis for the release of genetic information to the criminal justice system:

(1) Physicians should release a patient’s genetic information only with the patient’s consent or in compliance with a warrant or other order of a court of law. The circumstances in which law enforcement may seek a suspect’s genetic information from the suspect’s physician depend on whether any specific suspect has been identified, and if the suspect is in custody.

(a) If law enforcement personnel have identified a suspect and the suspect cannot be located to provide a genetic sample, physicians should release clinical genetic information only when a warrant or court order mandates such a release.

(b) When law enforcement personnel have identified a suspect, and the suspect has been located but refuses to provide a sample or is deceased (but his or her body is available), physicians should not be required to release genetic information as in these circumstances a court can authorize collection of a sample from the suspect or from postmortem tissue.

(c) Searching clinical and research databases of genetic information, or extracting and analyzing DNA from clinical or research tissue repositories, should not be conducted for the mere possibility that there is a match to a suspect’s DNA unless there is a warrant or court order to do so.

(2) When genetic information is provided to the judicial system, physicians should provide the minimum amount of information necessary for the explicit identification procedure being performed. Other elements of the medical record or the results of any genetic testing or genetic diagnosis should not be released without the patient’s consent or further warrant or order of the court.

(3) It is unethical for any genetic information obtained from a physician for identification purposes to be used subsequently for other purposes, such as research, unless appropriate ethical guidelines are followed and the informed consent of the individual is obtained (or the legally appropriate surrogate if the individual is incompetent or deceased, in compliance with Opinion 5.051, "Confidentiality of Medical Information Postmortem").

(4) Databases that contain only the genetic identifiers from the specific loci that are typically used for identification purposes do not present the same ethical concerns that are presented by databases which contain genotypic or phenotypic information. Physicians participating in the creation of genetic databases for the exclusive use of the criminal justice system should ensure that the database is not used inappropriately for purposes other than identification.

(5) In general, requiring that the genetic sample be destroyed or returned after the analysis necessary for identification is performed affords protection against inappropriate uses.

(6) When the criminal justice system seeks genetic information for the purposes of identifying a deceased victim, the above relevant guidelines also apply. (III, IV)

Issued June 2001 based on the report "Genetic Information and the Criminal Justice System," adopted June 2000. (J. Law, Med. & Ethics. 2002; 30: 88-94).