Sorry HIPAA confusion again!!!!!

Mr Ian · Feb 5, 2009

Unless the patient has given consent for release of information to those specific family members it's a violation.

Whispera, MSN, RN · Feb 5, 2009

I agree with Mr. Ian. You never know if the family members present are ones the patient would want to know all about it...

3rdcareerRN · Feb 6, 2009

"Unless the patient has given consent for release of information to those specific family members it's a violation."

Be aware that consent can be simply a lack of objection, if the patient is capable:

"The HIPAA Privacy Rule at 45 CFR 164.510(b) specifically permits covered entities to share information that is directly relevant to the involvement of a spouse, family members, friends, or other persons identified by a patient, in the patient's care or payment for health care. If the patient is present, or is otherwise available prior to the disclosure, and has the capacity to make health care decisions, the covered entity may discuss this information with the family and these other persons if the patient agrees or, when given the opportunity, does not object. The covered entity may also share relevant information with the family and these other persons if it can reasonably infer, based on professional judgment, that the patient does not object. "

from http://www.hhs.gov/ocr/privacy/hipaa/faq/notice/488.html

"The legal guardian and POA has full right of every medical disclosure"...

Not strictly true. If the patient is capable of making health care decisions, then the guardian/POA person is just another person involved in the patient's care, and falls under the rule above.

I'm no attorney-at-law, and I am not making legal recommendations, but these answers are straight from the HIPAA website. It bothers me that so many hospitals have such poor HIPAA training that nurses are scared to even advocate for their patients.

Mr Ian · Feb 6, 2009

Be aware that consent can be simply a lack of objection, if the patient is capable:
"The HIPAA Privacy Rule at 45 CFR 164.510(b) specifically permits covered entities to share information that is directly relevant to the involvement of a spouse, family members, friends, or other persons identified by a patient, in the patient's care or payment for health care. If the patient is present, or is otherwise available prior to the disclosure, and has the capacity to make health care decisions, the covered entity may discuss this information with the family and these other persons if the patient agrees or, when given the opportunity, does not object. The covered entity may also share relevant information with the family and these other persons if it can reasonably infer, based on professional judgment, that the patient does not object. "

Note - Highlighted in bold.

Define "capable"

Define "given the opportunity"?

Who's professional judgment?

What is a health care decision? What has that got to do with consenting to release private & personal information?

The clause simply allows for a patient to give verbal consent or to imply consent when given an opportunity to do so.

This does not allow a nurse or any other to assume that since the patient does not object when you start telling the family about their prolapsed lady parts that they are consenting to this information being shared.

If a family member asks a question while in front of their relative the correct approach is not to assume that since the patient does not actively object that it is ok to discuss. There are many reasons a patient would not raise objection in front of family members and this is the issue.

It is not the provisions of HIPAA for the nurse (or other) to simply say: "Well they didn't object when I started talking about their treatment" and use that as a defense.

The appropriate action is to politely state "I cannot discuss any patient details sorry" - and return to the patient later and explain 'consent', release of information and HIPAA with a view to outlining that the choice is entirely theirs. Then document that discussion in the clinical record.

I'm no attorney-at-law, and I am not making legal recommendations, but these answers are straight from the HIPAA website. It bothers me that so many hospitals have such poor HIPAA training that nurses are scared to even advocate for their patients.

This is not special or new because of HIPAA - Principles of "Confidentiality" has been around for decades and HIPAA does not vary from those principles - it merely enshrines the process and circumstance in which information is handled or shared.

Patient Confidentiality is drummed in from day 1 of nurse training in Oz and UK.

Their Freedom of Information laws are far less restrictive than the nursing ethos and principle of Confidentiality.

What appears to be lacking is:

Underpinning knowledge on what is confidentiality?

What is "capacity to consent"?

What is "consent"?

How to formulate a professional opinion about decision-making capacity.