Legal Aspects of healthcare Ch. 9 Confidentiality

What 3 elements constitute an "emergency situation" when an Informed Consent is not required?

- Patient is unable to give consent - Another person authorized to give consent on pt's behalf is unavailable. - Delay in treatment would likely result in death or serious bodily harm to the patient

Who may consent to treatment?

- The competent adult patient - Parents or legal guardian of a MINOR child - Guardian (proxy) of incompetent or impaired adults

What is PRIVACY?

- The right to be left alone & - The right to control personal information

Explain the PSDA, Patient Self Determination Act...

A Federal Act that allows patients to decide in advance of incapacitation how they would like to receive/not receive medical treatment if they are in an irreversible medical condition. it also requires healthcare providers to inform patients of their rights under this act and requires the provider to not discriminate against patients who have /or do not have and Advance Directive.

Define an Informed Consent

A legal doctrine that requires the healthcare provider to disclose information to the patient about the treatment to be done, the risks and benefits, and alternative treatment options so that the patient is well "informed" about the procedure and outcomes and can knowledgeably "consent" to the treatment being proposed.

Durable Power of Attorney for Healthcare (DPOAH)

A written document drafted while competent in which the patient assigns a 'proxy' or a guardian to make healthcare decisions for them should they become incapacitated or incompetent to make their own decisions relating to their care.

Living Will

A written document, drafted while patient is competent, that allows a patient to define what they want done / or not done medically in the event they become incapacitated.... includes DNR.

Describe the process of how patient health records are protected when a healthcare facility or entity files for Bankruptcy protection?

An ombudsman will be assigned to the case that is subject to specific provisions under the Bankruptcy Abuse Prevention and Consumer protection Act (BAPCPA) and the Federal Rules of Bankruptcy Procedure to maintain confidential patient information relating to the patient records and the healthcare entity who is the subject of the bankruptcy.

Difference between Confidentiality and Privacy in healthcare

Confidentiality - refers to the DUTY of the Provider to keep patient's information private from dissemination. Privacy - refers to patient's RIGHTS the right to be left alon the right to control personal information & decisions regarding it.

Who's duty is it to obtain written consent to treat?

Doctrine of Informed Consent places duty soley on the physician to obtain written consent.

Who sets substantive legal rights concerning advance directives and how many different versions / variations of these legal rights are there?

Each state sets their own substantive legal rights concerning advance directives (AD's).... There are 51 versions.... 50 states + District of Columbia.

how would a healthcare worker be protected from risks of liability in treating patients in an emergency situation without their consent?

GOOD SAMARITAN LAW; Provider is only protected if treatment is rendered outside of the healthcare facility.

What does HIV and AIDS stand for spelled out?

HIV = Human immunodeficiency Virus AIDS = Acquired Immune Deficiency Syndrome (disease)

What is Substituted Consent?

In the case of an unconscious or impaired adult, minor or where an adult is not competent to make their own decision, and/or in an emergency situation when their guardian is unavailable, the law allows for an authorized person to give consent for treatment or non-treatment on the behalf of the patient.

What is the purpose of confidentiality in healthcare?

It keeps patient-specific health information safe from dissemination / disclosure

were the freedom of information Act (FOIA) and the Privacy Act of 1974 written for medical records and patient confidentiality?

NO Both laws apply to governmental record keeping activities and do not focus on the activities of the private sector.

What is the NOPP (Notice of Privacy Practices) and what is required of healthcare entities under HIPAA inrelation to the NOPP?

Notice of Privacy Practices... Informs patiens how their health information may be used by the entity. HIPAA privacy rule requires the covered entity (CE) to: - post a complete copy of the notice in a clear and prominent location within its facility. - Be written in plain language (8th grade) - list whom patient can contact if they feel their PHI has been compromised.. (HIM mgr and then Secretary of HHS) - explain patient's right to AOD (acctg of disclosures)

When can a MINOR consent to treatment?

Only if: - they are legally EMANCIPATED - they are married - in childbirth - in the armed forces - Some states allow minor patient consent for special medical circumstances like pregnancy (abortion or family planning), STD's, or substance abuse treatment.

Differentiate between Privacy and Confidentiality

PRIVACY is a "right" belonging to the patient. It is the patient's "right" to be left alone or the "right" to control personal information. CONFIDENTIALITY is a "duty" belonging to the healthcare provider... to protect the patient's information from inappropriate release or disclosure.

What happened in the ESTATE of BEHRINGER v. MEDICAL CENTER at PRINCETON case?

Physician Behringer, went into hospital for pneumonia & tested positive for HIV and was diagnosed with AIDS. By the time he was discharged fr. hospital his HIV/AIDS status had spread thru hospital grapevine and most of his patients left his practice b/c of it. Behringer sued the medical ctr. for breach of the duty to maintain confidentiality of his diagnosis. Courts found in Behringer's favor.

What is PHI?

Protected Health Information Anything Spoken, Written or Electronic form that was created by the CE; relates to an individual's past, present, future physical/mental condition; identifies individual or can be USED to identify an individual. Many HIPAA identifiers (18)

What is the Common Law Basis of health information?

Recognition of an individual's right to bring a lawsuit for damages or injunctive relief against someone who inappropriately obtains, discloses, or uses PHI.... Able to bring lawsuit(s) under 3 claims: 1. Invasion of privacy 2. Defamation 3. Breach of Contract

Open Record Statutes

Records held by state agencies & correspond with FOIA (Freedom of Information Act)

Define Ethical Guidelines

Standards of conduct issued by profgessional organizations to guide their members' future course of actions.

What document described the very first obligation for a healthcare provider to protect health information?

The Hippocratic Oath - Do no harm

What agency directs healthcare facilities to inquire about patient advance directives and to provide education to patiens regarding their choices?

The Joint Commission. (and the U.S. Dept. of HHS and DNV)

Who is responsible for protecting the confidentiality of patient health information?

The health-care practitioner and HIM professionals

What is an INFORMED CONSENT?

The legal doctrine that requires the health-care provider to disclose information to the patient about treatment options and risks so that the patient may knowledgeably consent to treatment. Legal Doctrine of Informed Consent.

Define an Advance Directive (refresher)

These are written instructions recognized under STATE LAW which relate to the kind of healthcare treatment a patient wishes to have/ or not to have should they become incapacitated. (Living Will and Durable POA for Healthcare)

What is the primary ethical obligation of an HIM professional?

To protect patient privacy and confidentiality.

What does it mean to "de-identify" a patient health record?

To remove any HIPAA individual identifiers and information that would identify the patient... living or DEAD.

What is the difference in the strict limits of disclosure of HIV/AIDS status or information when the patient is actually a healthcare worker?

When HIV-infected healthcare providers are providing patient care, the confidentiality protections are NOT AS STRICT meaning that the healthcare proider's status can be disclosed in an as-needed basis. (i.e. Milton Hershey Medical Center case... surgeon cut his hand and turned out he had HIV, revealed it to his patients for their safety)

When would an EXPRESSED consent be necessary for medical treatment?

When the treatment is "elective" or there is a risk of harm. The expressed consent can be VERBAL or IN Writing....WRITTIN is preferred. ***When in doubt if an expressed consent is needed, Always try to get one from the patient!

Why is it important for the patient to trust the healthcare provider with their personal health information?

Without trust the: - Patient may not seek treatment - Patient may not share relevant symptoms - Doctor may not be able to diagnose patient - Doctor may incorrectly diagnose the patient - Doctor may prescribe incorrect treatments based on misinformation

What is an incompetent patient?

patient who is unable or unfit to make decisions about their care.

Privacy Statutes

related to privacy act of 1974 - presumption of confidentiality which can be fought with evidence of signed ROI.

Doctrine of Informed Consent places duty on the physician to:

- obtain consent to treat - disclose the nature of the treatment or procedure to patient - explain alternative treatments if available - explain risks - explain benefits

What sources form the FOUNDATION for rights to privacy?

1. Constitutional provisions 2. Statutory Provisions (State and Federal Laws) 3. Common Law Provisions

What is the difference between professional disclosure standards and reasonable patient standard?

BOTH apply to the extent of the information which must be disclosed to the patient. PROFESSIONAL STANDARD measures what a reasonable healthcare professional would disclose under the same or similar circumstances. REASONABLE PATIENT STANDARD measures what specific information is necessary for an average, educated, reasonable patient to reach a decision to consent to (or not consent to) treatment.

What does BAPCPA stand for?

Bankruptcy Abuse Prevention and Consumer Protection Act.

Why was the Supreme Court's decision in the Whalen v. Roe case significant to privacy even though it upheld the state's right to have the patient information for the dangerous drugs?

Because the information in the drug database contained patient's name, age, address and names of the pharmacy. it was argued that the collection of the database invaded patient's rights to privacy. However, in the end, the Court concluded that the public's need for information outweighed the individual's privacy interests.

Explain how patient confidentiality was perceived under the FOIA and the Privacy Act of 1974?

Because there is reference to accessibility and confidentiality in special cases, and because healthcare records are kept by the DHHS and the SSA, privacy is implied to healthcare records as they are for certain federal documents.

What happened in Jon Roe v. Jane Doe?

Breach of Confidentiality case due to negligence. Pt. confided in doctor that he had HIV... Roe's employed requested all records for a workers' comp. case and provided a signed release form and a subpoena. Doctor complied and released the ENTIRE record. Roe sued for negligence, breach of confidentiality and breach of contract. Courts hed that MD was liable for punitive damages because it was an open-ended ROI form and was insufficient to permit disclosure of HIV info. because NY law required specific ROI for HIV info and NY law also required use of their own form from commissioner of health, NY.

Who was Nancy Cruzon and what effect did she have on health care in the U.S.?

Car accident victim, in a vegetative state for years. Her family wanted to take her off life-support, court refused, they had to prove she would have wanted to die.... "right to die" case; spurred the PSDA - Patient Self-Determination Act and recognized a patient's right to die.

Define Confidentiality

The obligation of the healthcare provider to maintain patient information in a way that will not allow disclosure beyond the healthcare provider. - Keep it private - Keep it Quiet - Keep it Safe

What are the Three categories that fall into state confidentiality protections and what do they apply to?

a) OPEN RECORD STATUES b) PRIVACY STATUES c) PHYSICIAN-PATIENT PRIVILEGE STATUTES

Physician-Patient Privilege statutes

applies to introduction of evidence at trial and is used to PREVENT the forced disclosure regarding info. obtained by the practitioner during course of treatment.