hippa and criminal trials

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I understand pretty well how hippa works in a clinical situation. However, I admit I hadn't read all the rules. I am listening to details of a local murder trial in which the accused was injured by the police and spent a good deal of time in the hospital as result of the inury. All his caretakers, including student nurses have been called in to testify about his statements to them, some of them incriminating. I guess it makes sense that hippa is suspended under these circumstances.

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Specializes in ED, CTSurg, IVTeam, Oncology.

while his health care may be private, his statements to health care providers regarding issues not related to his health care is not under any constraint like attorney client privilege.

according to hipaa:

what information is protected

protected health information. the privacy rule protects all "individually identifiable health information" held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral. the privacy rule calls this information "protected health information (phi)."12

“individually identifiable health information” is information, including demographic data, that relates to:

  • the individual’s past, present or future physical or mental health or condition,
  • the provision of health care to the individual, or
  • the past, present, or future payment for the provision of health care to the individual,

and that identifies the individual or for which there is a reasonable basis to believe it can be used to identify the individual.13 individually identifiable health information includes many common identifiers (e.g., name, address, birth date, social security number). the privacy rule excludes from protected health information employment records that a covered entity maintains in its capacity as an employer and education and certain other records subject to, or defined in, the family educational rights and privacy act, 20 u.s.c. 1232g.

source: http://www.hhs.gov/ocr/privacy/hipaa/understanding/summary/index.html

so in essence, only individually identifiable health information is subject to protection. if he starts talking about how he robbed a bank while being cared for in the hospital, his statements to others can be requested by authorities and his caregivers can clearly be used as witnesses against him. in the case of the above, hipaa was not suspended; rather hipaa does not apply because it has nothing to do with his health information.

note: additionally there are, if you will, "loopholes" to hipaa, where disclosures even against the wishes of the patient is possible under certain public and or national interest conditions; read more at the above link.

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Ah yes, but what if the person says, "If I had gotten proper mental health treatment I would have never shot my wife". How do you seperate the two types of statements when they are one and the same? The person just made a confession of guilt and a cry for mental health treatment at the same time.

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Specializes in ED, CTSurg, IVTeam, Oncology.
Ah yes, but what if the person says, "If I had gotten proper mental health treatment I would have never shot my wife". How do you seperate the two types of statements when they are one and the same? The person just made a confession of guilt and a cry for mental health treatment at the same time.

I guess it would depend on how a lawyer asks the question. If the question is "what did he say?" it may be HIPAA covered, but if the question is "did he admit to killing his wife?" then it has nothing to do with HIPAA. :uhoh3:

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Ah yes, but what if the person says, "If I had gotten proper mental health treatment I would have never shot my wife". How do you seperate the two types of statements when they are one and the same? The person just made a confession of guilt and a cry for mental health treatment at the same time.

Then the defendant can plead not guilty by reason of insanity. That's an affirmative defense, which means it's up to the defendant to prove his state of mind, not the prosecution. Or he can make the "I didn't get proper treatment" argument at sentencing and hope for the best.

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Specializes in Nephrology, Cardiology, ER, ICU.

Also, if there is a criminal act involved, HIPAA is not in effect.

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Specializes in Cardiac, ER.

The judge can just order you to disclose protected medical information. I am a sexual assault nurse examiner which means I'm called as an expert witness for the cases. When I take the stand the first thing out of th judges mouth is an order for me to disclose protected information from the medical record.

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Specializes in OB, HH, ADMIN, IC, ED, QI.
Also, if there is a criminal act involved, HIPAA is not in effect.

On the form(s) the patients sign regarding HIPPA, there is a clause by which he/she allows any/all information in his/her medical records, to be given to the courts, law enforcement, Public Health Dept., insurance companies, etc. So no patient's record is private when requested by those official departments, and especially the insurance company. It doesn't even leave a blank to write down the patient's current insurance company.

HIPPA is a disgrace, as it makes patients (and nurses, it seems) believe that therte is privacy for him/her. It's true that no employer, ex-spouse, or jokester can access the record, but there is no such requirement for anyone in law enforcement, the court or the insurance company from sharing it with anyone. I still can't get over how the wool was pulled over so many seemingly bright folks, who believe that someone can sign a document that requires something of someone else (to wit health care providers), and then allows them to give it to practically whoever asks for it.

Let me tell you though, I have one heck of a time getting my own records after being hospitalized myself, and laws that have been enacted permitting that. Usually all doctors' progress reports aren't included, after the difficulty prying the record away from someone claiming "it's mine, you can't have it!"...... Doesn't anyone else want their own records for future care providers, possibly in a different country or part of this country? It takes forever to receive the form allowing a current doctor to access them, then sending it to that hospital, and waiting until they get around to sending it. You could die waiting.....

It isn't called the Health Insurance Privacy and Portability Act for nothing. It started out as a bona fide privacy protection law, but arm twisting by insurance companies and their lobbyists, changed it totally. So don't worry, you're certainly not bound by HIPPA to avoid discussion of a patient's condition with anyone, - (HIPAA)

except for the oath you take upon graduating from your nursing or medical school, which is binding.

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The judge can just order you to disclose protected medical information. I am a sexual assault nurse examiner which means I'm called as an expert witness for the cases. When I take the stand the first thing out of th judges mouth is an order for me to disclose protected information from the medical record.
That is what I thought was probably happening but i wanted someone to confirm it.
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It isn't called the Health Insurance Privacy and Portability Act for nothing. It started out as a bona fide privacy protection law, but arm twisting by insurance companies and their lobbyists, changed it totally. So don't worry, you're certainly not bound by HIPPA to avoid discussion of a patient's condition with anyone, - (HIPAA)

except for the oath you take upon graduating from your nursing or medical school, which is binding.

Actually, that isn't what it's called -- It's the Health Insurance Portability and Accountability Act (of 1996) -- HIPAA -- and the original point was to make communication among healthcare providers (and insurance companies) smoother and more efficient, and the privacy provisions were included to reassure the general public and "sell" the bill. It does provide penalties (stiff fines and prison time) for violations (inappropriate/unauthorized disclosure of protected information).

http://www.hhs.gov/ocr/privacy/

BTW, I believe this is the first time I've ever heard anyone suggest that the "Nightingale Pledge" is "binding" on anything other than one's conscience, if one chooses to see it that way. :rolleyes: Many nursing programs no longer use any sort of "pledge" at graduation, seeing it as a meaningless (or even degrading, in the case of the original "Nightingale Pledge") anachronism.

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Specializes in OB, HH, ADMIN, IC, ED, QI.
actually, that isn't what it's called -- it's the health insurance portability and accountability act (of 1996) -- hipaa -- and the original point was to make communication among healthcare providers (and insurance companies) smoother and more efficient, and the privacy provisions were included to reassure the general public and "sell" the bill. it does provide penalties (stiff fines and prison time) for violations (inappropriate/unauthorized disclosure of protected information).

http://www.hhs.gov/ocr/privacy/

btw, i believe this is the first time i've ever heard anyone suggest that the "nightingale pledge" is "binding" on anything other than one's conscience, if one chooses to see it that way. :rolleyes: many nursing programs no longer use any sort of "pledge" at graduation, seeing it as a meaningless (or even degrading, in the case of the original "nightingale pledge") anachronism.

well, consider the source of that, a nurse who has practised for 50 years and still remembers and has kept what she promised, upon graduation, in 1960. however it is hard to keep track of hippa, since the name keeps changing.....

meanwhile, there is nothing degrading or anachronistic about the following:

nightingale pledge

"i solemnly pledge myself before god and in the presence of this assembly to faithfully practice my profession of nursing. i will do all in my power to make and maintain the highest standards and practices of my profession.

i will hold in confidence all personal matters committed to my keeping in the practice of my calling. i will assist the physician in his work and will devote myself to the welfare of my patients, my family, and my community. i will endeavor to fulfill my rights and privileges as a good citizen and take my share of responsibility in promoting the health and welfare of the community.i will constantly endeavor to increase my knowledge and skills in nursing and to use them wisely. i will zealously seek to nurse those who are ill wherever they may be and whenever they are in need.i will be active in assisting others in safeguarding and promoting the health and happiness of mankind."

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i believe that those politicians owe their constituents an apology for the underhanded way they function, to get things passed, upon pressure from big money. it surprised me at first, to see that people thought it was necessary to pass a law, to keep nurses' mouths shut about their patients.

that's a sad comment regarding the pledge nurses have made since the inception of credible nursing. i'm afraid that the omission of that pledge as it originated, loses some authenticity of the profession's ethical code. i have seen a nurse fired for revealing information about her patients to a patient's family (long ago). (the patient raised a ruckus).

also in the past, i was a "private duty" nurse while at postgraduate school, working for a friend of my sister's, and she heard about that from him. he'd had a mole removed from under his axilla, and couldn't manage some adls easily, and was also handicapped throughout his life by having too much money. (tongue stuck in cheek) my sister told me that my chief function in caring from him, was to keep his wife and his mistress apart ".......but don't worry too much about that", she said, "they know about each other".

now there is a real ethical dilemma! :o

incidently, i suspect that as hospitals get further and further understaffed, wealthy patients may again clammer for employing their own "private duty nurses". that wouldn't be a bad job for new grads, although most facilities don't allow anyone not on their staff, to administer meds or treatments, today. the conundrum is, to whom do you owe allegiance, in that situation? for example if your patient wants to go outside the hospital to smoke, what do you do? it certainly could have implications for the debate about nursing being a service profession......:nurse:

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Actually, that isn't what it's called -- It's the Health Insurance Portability and Accountability Act (of 1996) -- HIPAA -- and the original point was to make communication among healthcare providers (and insurance companies) smoother and more efficient, and the privacy provisions were included to reassure the general public and "sell" the bill. It does provide penalties (stiff fines and prison time) for violations (inappropriate/unauthorized disclosure of protected information).

http://www.hhs.gov/ocr/privacy/

BTW, I believe this is the first time I've ever heard anyone suggest that the "Nightingale Pledge" is "binding" on anything other than one's conscience, if one chooses to see it that way. :rolleyes: Many nursing programs no longer use any sort of "pledge" at graduation, seeing it as a meaningless (or even degrading, in the case of the original "Nightingale Pledge") anachronism.

Thanks, Elkpark. There's plenty of documentation out there that notes that neither the Nightingale pledge -- nor the Hippocratic oath, or any other oath taken by medical or nursing students -- is legally binding. Many medical schools have abandoned the oath all together.

There was an interesting article in one of the nursing journals a couple of years ago about HIPAA. At the time it was written, not a single hospital had ever been prosecuted or otherwise sanctioned for violations. The only cases in which it had been enforced by the government was in the case of two people who stole credit card information from patient records. Any effect that HIPAA has had is through self-policing.

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