August 11, 2011

In the course of providing care, health care professionals routinely learn very personal, intimate information about their patients. As professionals, they begin with a fiduciary or trust duty to hold in confidence all personal patient information entrusted to them. This ethical obligation is enforced legally through civil damage suits based on both statutory and common law (judge-made precedent), and is embodied in the licensing provisions of virtually all state professional practice acts and accompanying regulations. Federal regulations promulgated in 2002 to implement the Health Insurance Portability and Accountability Act (HIPAA) impose on health care entities very specific requirements regarding the handling of personally identifiable medical information contained in patient records, and impose severe sanctions for unauthorized disclosures.

There are, however, a number of exceptions to the general confidentiality rule. one is that a patient may voluntarily and knowingly waive, or give up, the right to confidentiality of particular information. This is done daily to make information available to third-party payers (for instance, Medicare or private health insurers), quality of care auditors (such as surveyors of the Joint Commission on Accreditation of Healthcare Organizations), and other public and private entities (like patients’ powers of attorney). Additionally, the usual confidentiality obligation may be outweighed when there is jeopardy to innocent third parties, such occurs when a patient with serious sensory or cognitive impairments insists on driving a motor vehicle or a dangerous psychiatric patient threatens to kill a specific victim and appears to have the present ability and intent to make good on that threat. State laws vary regarding the health care provider’s obligation to report a threat to public health or safety authorities.

Third, the patient’s expectation of confidentiality must yield when the physician is mandated by state law to report to specified public health or safety authorities, the physician’s reasonable suspicion that certain conditions (e.g., domestic violence, elder mistreatment or neglect, certain infectious diseases, birth, and death) are present. Mandatory reporting laws represent the state’s exercise of its inherent police power to protect the general health, safety, welfare, and morals of the community or its parens patriae authority to protect individuals who are not capable of protecting themselves.

Further, the physician may be compelled to reveal otherwise confidential patient information by the force of legal process, that is, by a judge’s issuance of a court order requiring such release. This is a possibility in any lawsuit involving a factual dispute about a patient’s physical or mental condition.

Since the delivery of health care today frequently is a team endeavor, each patient implicitly gives permission for the sharing of certain otherwise private information among the members of the treatment team. Such information sharing is essential to optimal care. However, only information that is directly relevant and necessary to facilitate the contribution of each team member should be available beyond the physician, and each team member who is privy to patient information is bound by the same legal and ethical constraints regarding confidentiality that apply to the physician.

SEE ALSO: Medical malpractice, Patients’ rights

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