Confidentiality, Privacy, & Duty to Warn Philip Boyle, Ph.D. Vice President, Mission & Ethics www.CHE.ORG/ETHIC

1. Confidentiality, Privacy, & Duty to Warn Philip Boyle, Ph.D. Vice President, Mission & Ethics www.CHE.ORG/ETHICS \Topics \Confidentiality

2. Etiquette • Press * 6 to mute; • Press # 6 to unmute • Keep your phone on mute unless you are dialoging with the presenter • Never place phone on hold • If you do not want to be called on please check the red mood button on the lower left of screen

3. Goals for today’s conversation • Understand the limits and obligations with confidentiality and the duty to warn • How can reflecting on today’s cases be used for total quality improvement?

4. Problem • Confidentiality--sleeper issue compared to life and death issues • General agreement: confidences are to be kept • Moral problem: no clear lines draws a different line in the sand. • Practical problem: • How to come to a consensus? • What protections and education need to be put into place? • Unique problems in long term, home health, & behavioral care • Intimate knowledge about a person’s life often can help in promoting care • Health care professionals need to be even more vigilant about what information is necessary or unnecessary

5. Why do we hold confidences? • When do we break confidences? • What are the considerations under which we can break them? • Framing question: Is this an issue of blocks to knowledge or what knowledge is need to be known?

6. Examples • Transmissible disease • Potential harm to others • Common medical patient rounds • Genetics and information about future generations • Medical chips in the arm or under the finger—super medic alert bracelet • Social factors that may or may not be relevant to treatment of patient • Knowing lots about people in long-term care home health • Sexual behavior in long-term care

7. Examples • Behavioral health, especially rural setting • HIPPA • “Things that are said in “casual conversation” don’t count.” • Translation services and cultural sensitivity • Requests from adolescents e.g., birth control • Organizational ethics issues: confidentiality with respect to working history e.g., a nurse who has diverted drugs, Michael Swango/Charles Cullen • Discovery of medical error or knowledge of a near miss

8. Definition Confidentiality: Obligation not to pass along to anyone information about another without their permission; not gossiping, not passing on rumors Privacy: right to be left alone and free from unwarranted publicity

9. Why is confidentiality so hard to address? • Not a life and death issue • Breaches are not done with malice • Perpetrator does not see the harm • Harm is more often psychological and no physical harm • Persons whose confidence is breached may not see problem, or may not be a problem if seen • Little personal cost to perpetrator • No institutional sanctions

10. Ethical underpinnings of confidentiality Hippocratic oath: “Whatever I shall hear in the course of my profession, as well as outside my profession in the intercourse of men, if it should not be published abroad, I will never divulge it, holding such a thing a holy secret.”

11. Ethical underpinnings of confidentiality Patient Bill of Rights—even more restrictive “The patient has the right to every consideration of privacy concerning her medical care…Those not directly involved with her care must have the permission of the patient to be present. That patient has the right to consider all records and communications pertaining to her care should be treated as confidential.”

12. Ethical underpinnings of confidentiality Presumption in favor of confidentiality

13. Foundational values • Therapeutic trust • Fairness do unto others • Dignity of the persons • Burdens-benefit ratio: burdens include labeling, stigmatizing and perhaps given different care, lack of preparedness if relative don’t know

14. Case • A 60-year-old man has a heart attack and is admitted to the medical floor with a very poor prognosis. He asks that you not share any of his medical information with his wife as he does not think she will be able to take it. His wife catches you in the hall and asks about her husband's prognosis. • Would you tell his wife?

17. Phase II: Decision Making 1. Pray, reflect, identify question, and clarify authority of decision-making group. 2. Determine primary and secondary communities of concern and their interests. 3. Get facts 4. Identify key moral commitments and values, as well as conflicts among them. 5. Establish priorities among commitments and values. 6. Develop options that support the priorities. 7. In silence reflect and then listen to viewpoints. 8. Gain consensus on decision.

18. Case • Mrs. P who is incapacitated to make decisions is admitted to a nursing home because her son has AIDS and is unable to care for her at home. The social worker knows the son has a criminal record. The son is not the health care agent but want to direct care. Should the social worker tells the team about the son’s past?

19. Case • Marge, a nurse on a behavioral health unit recognizes her neighbor George who is admitted and proceeds to give him a warm welcome to allay his fears. At a weekly case review Marge provides information that George is known to be violent, especially when because of substance abuse. As supervisor, what would you say to Marge?

20. CASE • Your 36-year-old patient has just tested positive for HIV. He asks that you not inform his wife of the results and claims he is not ready to tell her yet. • What would you say to your patient? • Why?

21. Case • A 75-year-old woman shows signs of abuse that appears to be inflicted by her husband. As he is her primary caregiver, she feels dependent on him and pleads with you not to say anything to him about it. • How would you handle this situation? • How is this case different from Case 1?

22. Case • An adolescent seeks treatment from a physician for: • Birth control • Pregnancy test • Sexually transmitted disease • Substance abuse • Her father asks the MD for a conference about the adolescent. Which items should the MD disclose? Why?

23. Case • A patient confides in a respiratory therapist that he is thinking of taking his own life once he is discharged from the hospital. Before he divulges this information he extracts a promise that he will only disclose information under the strictest confidence, and the therapist agrees. The patient is severely depressed. • Is the therapist justified in providing this information to the physician? Why?

24. Case • A physician, in the course of caring for a patient, who is a bus driver, notes that the person is at risk for having a heart attack and recommends that she cease driving, as she may place the children at risk. The driver asks the physician not to notify the school district, as it would put her at risk of losing her job. The physician notifies the district.

25. Ethical limitations of confidentiality • Criteria for a duty to warn • Innocent third party is a risk • Immediate • Severe harm • Likely to happen • Intervention can avoid it • Last resort • Children and adolescents • Persons with mental illness

26. Phase III: Follow Through Assign accountabilities to specific persons for each component to be realized. • Build a plan for monitoring and reporting with measurable outcomes. • Build a communication plan for community of concern with key messages and methods. • Build a plan that connects to the larger meaning and purpose.

27. Practical considerations • What everyone agrees upon—using information for care and not personal gain or mere gossip • Review and understand the limits of duty to warn in your state • Review and understand HIPPA concerns at your institution • Do not assume that family members or friends have permission • Don’t provide information over the phone to those whose identity has not be verified

28. Practical considerations • Don’t use information that you have from outside the health care setting • Need to know basis • Moral leadership what information is true or not, need to be known or not? • Signage • Identifying paraprofessional who may not have a clear understanding about the limits of confidentiality • Promoting the practice to converse with immediate supervisors