Patient Confidentiality- A Therapist Duty

Patient Confidentiality- A Therapist Duty

The Duty....

• To Maintain confidentiality means that...a clinician may not disclose any medical information revealed by patient or discovered by a clinician in connection with treatment of a patient. 

Maintaining Confidentiality:

• Is to allow the patient to feel free to make a full and frank disclosure of information to the clinician with the knowledge that the clinician will protect the confidential nature of the information disclosed.

Benefits of Full Disclosure:

• Enables the clinician to treat conditions properly and appropriately.
• n return...for the patient's honesty, the clinician should not reveal confidential information without the patient's express consent unless required to disclose the information. 

Only Specific Exceptions...

• Exceptions to the rule: Where a patient threatens bodily harm to himself or herself or to another person. 

Legal Obligations:

• Courts use ethical obligations...as the basis for imposing legal obligations.
• Patient confidentiality- a legal and ethical duty

• Courts allow a cause of action for a breach of confidentiality against a treating clinician who divulges confidential medical information without proper authorization from patient.

Breach of Confidentiality:

• Is a disclosure to a third party...without patient consent or court order...of private information that the clinician has learned within the patient- clinician relationship. 

Types of Disclosure: 

• Can be oral or written, by telephone or fax, or via e-mail or health information networks.
• The medium is irrelevant. 

Current Law:

• A 'crazy quilt of state and federal law' protecting patients' confidentiality.
• Both federal and state constitutional privacy rights, legislation, and regulation governing both medical records and licensing, and specific legislation designed to protect sensitive information. (e.g., HIV test results, genetic screening information, mental health records, and drugs and alcohol abuse rehabilitation information.

Patient Consent to Release Confidential or Privilege Information:

• Information in a patient's medical records may be released to third parties...ONLY if the patient consented to such disclosure.
• The patient's express authorization (documented writing) is required before the medical records can be released. 

Sample....Interested Parties:

• Patient's attorney or insurance company; patient's employer (unless a worker's compensation claim is involved): member of the patient's family (except where the family member has bee appointed patient's durable power of attorney for health care) government agencies; and other third parties.

HIPAA RULES:

• Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy and Security Rules. 
• Create additional Rules...under privacy regulations, covered entities may usually release protected health information without authorization only to facilitate treatment, payment, or healthcare operations. 

Manage Care Organizations (MCO):

• Require members (Pt) to sign a general release form on enrollment in the plan. 
• Pt authorizes release of medical information to MCO.
• Pt acknowledges MCO's right to conduct utilization review program of health services and to coordinate benefits/reimbursement.

Before forwarding medical records to MCO, utilization review programs or other health programs...Clinicians & hospitals should get a signed copy of the patients release and medical records.

Who Can Consent To The Release?

• Who may grant permission...is governed by state law which varies from state to state.

Generally granted to:

1. The patient, if competent adult or emancipated minor.
2. A legal guardian or parent if the patient is a minor or a child.
3. The administrator or executor of the patient's estate if patient is deceased. 

What has to be in the release?

Typical elements-a valid general release:

1. Patient's name & identifying information.
2. Address of the health care professional or institution directed to release the information.
3. Description of the information to be released.
4. Identity of the party to be furnished the information.
5. Language authorizing release information.
6. Signature of patient or authorized individual.
7. Time period for which release remains valid.

Implied Consent and Public Policy Exceptions or Required Disclosures:

#1.)- Even if the patient has not expressly authorized disclosure of medical records, such consent is implied from the patient's acceptance of treatment or hospitalization. 

#2.) When a patient is transferred from one health care practitioner/ facility to another.

• Disclosure of confidential patient information is necessary to ensure continuation of patient care or treatment. 

Safeguard Confidences: 

• If probability a patient will inflict serious bodily harm on another.
• The clinician should take precautions to protect the intended victim and notify law enforcement authorities. 
• Communicable diseases, gunshot, and knife wounds should be reported.
• Th clinician's duty of confidentiality at times must give way to stronger countervailing societal interests. 

Management Safeguards & Security:

• Have contracts with system vendors and consultants participating in data repository reviewed by attorney. 
• Have comparable confidentiality and security policies.
• Implement security controls over sensitive information (e.g., HIV status, pregnancy termination,history of mental health problems, or alcohol and drug abuse).

Management Safeguard and Security:

• Maintain good system security.
• Train staff
• Secure agreements concerning confidentiality and security.
• Have security experts assess security of clinical date repository.
• Require that users who access information sign appropriate user agreements.

Sample Office Procedures:

Attach an office form to any request for medical records.

The form would have a checklist:

• Date of receipt of the request
• Date of the receipt of the copy of the patient's release form
• Date that the medical records were authorized to be sent to the requester.

Why Protecting Patient Confidentiality Is So Important:

• Ethics and law involved...long before the information highway was envisioned. 
• Old laws/ethical precepts...do not always fit neatly with today's computerize systems, they will gradually catch up. :)
• Clinicians should protect information to the extent possible to comply with the 'crazy quilt' of federal and state laws. 

Clinicians Should...

• Become familiar with the laws involving the duty to maintain confidentiality.
• Any breach in confidentiality-even one that seems minor-can result in mistrust and, possibly, a lawsuit and/or disciplinary action.