Privacy, Confidentiality, & Duty to Warn Carol Bayley, Ph.D. CHW VP Ethics and Justice Education Ethics Champions Program October 6, 2010

Goals for today’s conversation Understand the relationship between the right to privacy and the duty of confidentiality Understand the ethical responsibility of the duty to warn Understand opportunities for collaboration between ethics committees and privacy officers

Definitions Private Belonging to a particular person Privacy Freedom from intrusion into one’s life or affairs Confidence Entrusted with secret or private affairs Confidentiality Discretion in keeping secret information

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I shall hear in the course of my profession, as well as outside my profession in the intercourse of men, if it should not be published abroad, I will never divulge it, holding such a thing a holy secret.”

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.”

Case: Heart Attack Man A 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. What do you say to his wife? What else do you do?

Case: Abused Woman An elderly woman shows signs of abuse that she admits has been 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 Heart Attack Man?

Case: Marge in Behavioral Health 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 he drinks. As supervisor, what would you say to Marge?

CASE: Man with HIV Your 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?

Case: Cell Phone Camera A freak accident at a railroad track has severed the leg of a woman who ends up in your emergency department, where you are a nurse. You are so fascinated with the case that you discreetly take a picture of just the leg on your cell phone. The next day you read about the accident in the paper; your brother calls to ask if you were on duty. You him the picture of the leg. Is a photo Protected Health Information? Which other case is this most like?

Case: Suicide Man 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 tell the therapist that he “has a secret to tell her” and the therapist assures him that their relationship is confidential. The patient is severely depressed. May the therapist disclose this information to the primary care doctor? Must the therapist disclose to the doctor? What are her responsibilities to the patient after breaking his confidence?

Limits of confidentiality Tarasoff v Regents of the University of California, 1976 Criteria for a duty to warn Innocent third party is at risk Immediate Severe harm Likely to happen Intervention might avoid it Last resort

Practical considerations General agreement: Access is a privilege Rule is not “what’s the harm?” No personal gain or gossip Review and understand the limits of duty to warn in your state (incl. minors, mentally ill) Review and understand HIPPA Ask patients in advance but Do not assume that family members or friends have permission to know Do not provide information over the phone to those whose identity has not be verified

Practical considerations New tech ways to get and blab private information (cell phones, Facebook, Twitter, Yelp); know the rules and watch the boundaries Empowering patients (like handwashing) Leadership: anyone with access to information needs to understand privacy and confidentiality