Following the tragedy at a nightclub in Orlando, the city’s mayor announced a waiver of privacy rules, enabling doctors to speak with victim’s families. However, some confusion arose because there were no federal rules to waive in the first place! The tragic events were followed by some misinterpretation of the Health Insurance Portability and Accountability Act (HIPAA), and just in case you might be confused as well, here are some clarifications.
First and foremost, HIPAA is NOT a vow of silence. The concept of privacy seems rigid, but it shouldn’t be an absolute cutoff. As the former head of HIPAA enforcement said, “HIPAA is meant to be a valve, not a blockage.” So long as the patient is present and clearheaded, hospitals and medical practices are allowed to share relevant information with a patient’s loved ones. For instance, an individual who accompanies a patient into an appointment, such as a family member, spouse or partner, can be told of treatment procedures or steps in treatment. As this family member is allowed to be present in the first place, consent to speak with this individual is implied. Therefore, the doctor can speak freely with the family members about issues relating to the visit. The only time a doctor is barred from sharing any information is when the patient is present and forbids the sharing of information in clear conscience.
Another misconception about HIPAA is that some information is more sensitive than others, and therefore should not be shared with others. HIPAA takes a neutral approach to any information shared, be it for physical or mental health. A rare instance where sensitive information is protected by HIPAA is for personal desk notes that a doctor writes to serve as memory joggers, also known as “psychotherapy notes.” Psychotherapy notes are intended for the doctor who wrote them, so sharing these notes wouldn’t serve any use for the next doctor because the notes wouldn’t be relevant to them.
One of the largest misunderstandings about HIPPA unfortunately arises following tragic events: did the doctors notify the authorities of any harmful behavior? Under no circumstances does a federal law prohibit reporting threats of violence to the authorities, and doctors even have a “duty to warn.” HIPAA does not obligate theses duties, but rather enables professionals to take proper action. In a sense, HIPAA provides a base or legal floor for doctors, not a restriction. The implementation of HIPAA allows health information to be shared, but never requires it.
Even if some law of privacy protection was waived, long standing legal and ethical norms would still remain. Since the American Medical Association’s first code of ethics, which was implemented in 1847, an obligation of secrecy is and has been an essential part of a doctor patient relationship.
- Hippocratic oath. (n.d.) Collins Dictionary of Medicine. (2004, 2005). Retrieved October 18 2016
- “HIPAA Privacy Rule and Its Impacts on Research.” U.S National Library of Medicine. U.S. National Library of Medicine, 02 Feb. 2007. Web. 18 Oct. 2016.
- Howard, Jacqueline. “HIPAA Was Not Waived in Orlando — Here’s Why.” CNN. Cable News Network, 14 June 2016. Web. 18 Oct. 2016.