Confidentiality & Privacy

1. Confidentiality & Privacy Ethics Champions Program February 4, 2009 John F. Wallenhorst, Ph.D. Vice President, Mission & Ethics Bon Secours Health System

2. Purpose • Understand origins of the right to privacy, and the obligation, and limits, of confidentiality • Explore practical applications for health care through case study review and discussion

3. Case Study – Mr. Jones • 60 year-old man admitted with a heart attach; very poor prognosis • He asks that you not share his medical information with his wife; he does not think “she will be able to take it” • His wife sees you in the hallway and asks you about her husband’s prognosis • What would you tell her? • What are your required to do legally?

4. Privacy Right to be left alone and free from unwanted publicity.

5. Right to Privacy • Foundational as it relates to the obligation of confidentiality • Flows from fundamental rights to life, liberty and property • In health care, most often the right to control access to and distribution of information • Violations of the right to privacy often involve obtaining information without permission

6. Privacy in Health Care • Persons have a right to decide who has access to their bodies or information related to delivery of care • Unless patient gives explicit permission there is a proscription against sharing information • Takes into account a special concern for those who are not capable of protecting themselves Keeping information to themselves.

7. Confidentiality Obligation not to pass along information about another person without their permission.

8. Obligation of Confidentiality • Different than right to privacy • But grounded in it • Rooted in fiduciary relationships; relationships of trust • Two-fold focus: • Respect for privacy by restricting access to information • Respecting and reinforcing bonds of trust • Supporting the care process

9. Catholic Health Care • Dignity of the Person • Community • Justice • Prudence • Benefit - Burden

10. Catholic Health Care • Ethical & Religious Directives • Part Three: The Professional-Patient Relationship= • Relationship • Mutual respect, trust, honesty, appropriate confidentiality • Directive 34: respect for privacy and confidentiality

11. Codification • Hippocratic Oath • “Whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret. While I continue to keep this Oath unviolated, may it be granted to me to enjoy life and the practice of the art, respected by all men, in all times. But should I trespass and violate this Oath, may the reverse be my lot."

12. Codification • American Medical Association • “That whatsoever you shall see or hear of the lives of men or women which is not fitting to be spoken, you will keep inviolably secret."

13. Codification • American Medical Association • “That whatsoever you shall see or hear of the lives of men or women which is not fitting to be spoken, you will keep inviolably secret."

14. Codification • Professional codes of ethics; state laws; acts of ethical decision making • Federal Privacy Act (1974) • Medical information and records • Health Insurance Portability & Accountability Act (1996) • Both: • Improve health care services and research by ensuring flow of medical information • Limiting access to and use of information • Carries both civil and criminal penalties

15. Joint Commission • Administrative procedures and physical safeguards • Authorized use of medical records for • Treatment • Quality assurance • Utilization review • Education • Research

16. Problem • Moral problem: no completely clear lines • Impossible to delineate all imaginable scenarios • Professional judgment and ethical reflection are almost always required • Rule of thumb • Offer only as much information as is required to provide optimal care • Provide only information that is relevant to the situation

17. General Agreement • Confidences are to be kept • “Need to know” • Supporting delivery of care • Not for personal gain • Not to malign • Not as gossip

18. Not an absolute obligation.

19. Tarasoff Case • Psychiatrist has access to information regarding potential homicide; homicide occurs • 1976 judgment • “Duty to warn” • “Right of confidentiality ends where public peril begins • Breaching confidentiality is warranted under certain circumstances

20. Exceptions • Minors • Abuse • Safety • Public welfare Duty to report harm.

21. Practical Points • Understand and support organization’s HIPPA structures • Understand relevant state laws • Promote organizational conversation, education and leadership around the issues • Not just about compliance • About dignity, respect, justice

22. Practical Points • Don’t assume family members and friends have permission • Don’t provide information over the phone to those whose identity is not verified • Don’t use information that you have from outside health care setting • Special issue in long term care and behavioral health • Intimate knowledge, relationship, often key to promoting good care

23. Case 1 – Mr. Jones • What do you say to Mrs. Jones? • What support mechanisms are there? • Is there an obligation only to Mr. Jones?

24. Case 2 – Allison • 16 year old girl; seeks medical attention: • Birth control • Pregnancy test • Sexually transmitted disease • Substance abuse • Her father asks physician for a conference • What can you disclose?

25. Case 3 – Mrs. Johnson • 75 year old woman • Signs of abuse that may have been inflicted by her husband • Husband is primary caregiver • Mrs. Johnson is dependent on him, and pleads with you not “to cause a stir” • What do you do? • Is this different from case one

26. About Relationships • Supporting strong, trust-filled relationships • In service to health, well-being and comfort • A dimension of holistic care

27. Questions & Conversation