Chapter 6: Rights, Truth and Consent

Section 3. Presentation of Issues: CONFIDENTIALITY and PRIVACY

The health care providers need information from the recipient of care in order to render effective care and services.  The recipient of care must be able to trust the health care providers.  These are givens in the health care setting. Why is there any need to keep that information restricted to those who need to know and to whom the recipient of care granted permission to have the information?  This is the issue of the Right to Privacy.

There are different types of privacy:

  1. Psychic : inner sphere- thoughts , feelings, ideals
  2. Physical: secrecy, seclusion from view
  3. Social: to function in all social roles in a social identity

While it appears correct to hold personal information in trust and confidential there are factors that enter into situations that make that principle problematic.  Health care providers have other obligations, e.g., to society as a whole and to colleagues and to family and to employers.  Health care providers can find themselves in situations where there is a conflict in their obligations. Here are some of those obligations that can enter into conflicts:

  • Obligation of confidentiality to the recipient of care
  • Obligation of protection to Society; e.g., transmitted diseases, gunshots
  • Obligation to employer of the recipient of care who may be contracting for the medical care.
  • Obligation to the medical insurance companies who provide payment for the services

Privileged communication is a legislative gift in only 34 states. This privilege is to insure the privacy of the recipient of care. However, it often permits dishonesty and injustice. The privilege often puts the HCP in a dilemma.  Situations can arise in which there is a conflict in duties.  In the case of contagious diseases or of individuals who may cause harm to others due to their mental state there is a conflict between the duty to protect the community vs the duty to observe the confidentiality of the recipient of care.  In such situations there is a conflict of interests as well.  There are the the interests of the recipient of care vs the interests of the public.

The privilege is supposed to allow a health care recipient to go to HCP's without fear of embarrassment concerning , e.g., abortion, mental illness, drugs, sexually transmitted diseases. However, the state makes facts concerning such conditions available and requires that HCP's gather the information and report that information and make disclosures under certain circumstances..

What happens when there is a conflict in the interests?

The medical societies allow for breaches in confidentiality but do not require it. Law courts have made decisions which require it under certain circumstances. How are those circumstances to be evaluated?

READ: Case http://www.law.uh.edu/healthlawperspectives/Mental/980424Tarasoff.html

READ: Case  http://www.psychiatrictimes.com/p981201a.html

READ:  Limits of Confidentiality: http://www.psych.org/pnews/98-09-04/analyst.html

READ:  Duty to Warn: http://www.mssny.org/members_only/legal/Legal_Guide/Duty_to_Warn.htm

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From the University of Washington School of Medicine

Questions:

  • Where does the duty of confidentiality come from?
  • What does the duty of confidentiality require?
  • What kinds of disclosure are inappropriate?
  • When can confidentiality be breached?
  • What if a family member asks how the patient is doing?

Answers at: http://depts.washington.edu/bioethx/topics/confiden.html

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Federal Laws to Protect and to Restrict Privacy

What are the laws of the US governing the use of medical information?  Well, they are both complex and in flux.  There are revisions made as a result of discussions and even protests by groups representing both the providers and recipients of health care.  One of the most recent acts that had major impact  is known by the acronym HIPAA for HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 Public Law 104-191 of the 104th Congress.  It has been revised in 2002 with a compromise bill.  These are both offered below for your perusal.

READ Latest Press release: HHS Policy on Privacy (Aug. 2002)

The Act of 1996 : http://aspe.hhs.gov/admnsimp/pl104191.htm

FAQ's re HIPPA:  http://cms.hhs.gov/hipaa/hipaa1/default.asp

Privacy and Confidentiality Issue: http://www.ncpa.org/health/pdh/apr98i.html

Privacy and Health Care Records: http://www.cfp2000.org/news/student_reports/health-tilman.html  

Privacy Issues: http://www.cdt.org/privacy/gore_analysis.980811.html

LATEST REVISION (Aug. 2002) of HIPPA: http://www.bricker.com/attserv/practice/hcare/hipaa/160.102.asp

http://www.bricker.com/attserv/practice/hcare/hipaa/hipaaindex.asp 

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Copyright Philip A. Pecorino 2002. All Rights reserved.

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