Patient Privacy the Ethical Dilemma

Patient Privacy

The Ethical Dilemma of Patient Privacy Rights

The idea of physician-patient privilege has historically been associated with the mental health profession. It is here that consultation is said to be legally protected by a condition which demands confidentiality. Information passed to the counselor both verbally and medically are to be used only for the purposes of treatment and held in confidence by the physician. This is also a concept which has come to apply with increasing importance to the area general healthcare. Patient privacy is today considered a core right of patients in hospital, clinic or private care settings. But it was really only as recent as the last decade that this was given an overarching legal standard in the form a federal bill. With the passage of the Health Insurance Portability and Accountability Act (HIPAA) in 1996, a new standard was adopted to protect individual users of the health system against violations of privacy, breaches of confidentiality and other infractions of the doctor-patient privilege. (Hugget et al., 1)

The phrasing and terms of the HIPAA denote an interest in deterring physicians from decisions which are either careless or willfully negligent. Accordingly, Hugget et al. (2004) report that the "the Privacy Rule was published in April 2001 and has been enforced since April 2003 by the Office of Civil Rights. There are civil penalties of $100/violation up to $25,000/year. Criminal penalties are also possible including $50,000 and/or 1 year in prison for wrongful disclosure or $250,000 and/or 10 years in prison for the intent to sell information." (Hugget et al., 1) These steep penalties also accompany professional consequences including temporary suspension or withdrawal of a license to practice medicine. The seriousness of these penalties underscores the level of seriousness attending to this issue in the discourse over patient rights.

Ethical Dilemma:

That said, there are a number of ethical dilemmas which enter into this discussion. The idea of patient confidentiality from a legal standpoint and with respect to the professional responsibility of a physician may appear as a straightforward matter. However, the deeply personal ways that many have of responding to their own health concerns -- ways that are not always rational or constructive -- may actually obscure opportunities for health resolution. As Allen (2008) observes, "many Americans regard information about their health as appropriately private, and medical privacy as something to which they have a moral right. In fact, health information is so sensitive and personal that some people, who know that they are ill, do not share the knowledge with anyone, leaving even their closest friends and family members in the dark. Private medical knowledge precedes the creation of a confidential provider-patient professional relationship or medical record." (Allen, 1)

This is a cultural proclivity that precipitates the sense that while engaged in the healthcare system, privacy is still to be expected. For patients who have a tendency to approach medical concerns with secrecy, there will also be a desire to keep the treatment circle as small as possible. The may mean that a patient who should be visiting an emergency room or seeing a clinical specialist may instead visit a private regular physician. In the case of a medical emergency where a private practice is not equipped to address the health condition in question, this desire for privacy constitutes a serious conflict of interests.

As an ethical concern, this reflects that which is described in the text by Garrett et al. (1998), as it remarks upon the distinction between ethics and law. The text indicates that ethics is not "the same as law, although the law is an importance expression of social judgment about the rightness or wrongness of actions that seriously affect the public good. The social judgment is the result of a loosely organized, society-wide ethics discussion." (Garrett, 2) With consideration to healthcare and the concern over privacy, this distinction by Garrett et al. is a useful frame for a weight of pros and cons in the legal and cultural issue of medical confidentiality.

As the discussion will further show, there are also instances in which privacy may be a secondary priority. When the failure to disclose certain information might result in harm to the patient or to others, there are both ethical and legal ramifications for bypassing the implications of physician-patient privilege. We will explore that with greater depth in the subsequent section.

On the other side of the ethical dilemma is the understanding the patient privacy is an important and desirable goal in the healthcare context. Humber remarks that "nearly everyone agrees it is ethically right to ensure the confidentiality of patients' health information. Just how much privacy protection to give that information, however, is a question over which people sharply disagree. Patients often believe that no one except their closest health caregivers should be able to see their medical records without their prior permission." (Humber, 4) That this is a near consensus amongst users of the American healthcare system is sufficient to warrant further investigation of this position. Its ethical and practical implications are not necessarily in doubt, but the dilemma sited here suggests that there may yet be much nuance in how we apply privacy demands to the field of healthcare.

Relevant Ethical Issues:

Of course, one of the greatest concerns is that a physician's professional integrity may be lacking, in which case, patient information takes on myriad levels of vulnerability. For the patient, the emotional risk of personal disclosure to a physician is generally done with some assurance that any condition -- regardless of how embarrassing, unpleasant or revealing -- is kept within the boundaries of the treatment process. This means that the information is availed only to those who will play a part in the process of treating the patient. Here, it is clearly an ethical responsibility for those who are within this treatment circle to treat this information with the utmost of respect and sensitivity.

In some instances, violations of patient confidentiality are a matter of carelessness rather than malice or intentional misconduct. The casual disclosure of patient case information constitutes a violation that may go unnoticed but can have real consequences. The research by Hugget et al. (2004) warns that "increasing workloads lead to elevator or cafeteria discussions of Mrs. Smith's metastases or Mr. Jones' pancreatitis. This is not acceptable. The person next to you in line could be a patient's friend, relative, or media member that is not entitled to this privileged information." (Hugget et al., 1)

This speaks to a number of the clear pros in terms of protecting patient confidentiality. Namely, the protection of this information from those who have no professional right to said knowledge will serve to prevent undue embarrassment, judgment or negative attention from others. Depending upon the nature of the medical condition, these concerns may be socially, personally or even economically sensitive for the patient. The assumption by patients that this privacy is ensured allows for a level of comfort in disclosure that is important both for individual and public health. As Quan (2007) indicates, "doctor-patient privilege has long been an ethical provision to ensure that patients provide doctors with truthful accounts of their signs and symptoms so that the physician can accurately diagnose and treat the patient. HIPAA added on many more restrictions." (Quan, 1) This way of phrasing the discussion suggests that patients might be reluctant to make honest disclosure if they believe that their information might be shared for legal, commercial or other inappropriate uses.

Another argument in favor of greater patient confidentiality relates to the increasing vulnerability of private information in general. With the expanse of information technologies in the healthcare industry, information about patients has become more frequently replicated, more readily available from multiple sources and therefore generally more vulnerable to inappropriate use. This is why privacy laws are important. They intervene in the proliferation of these instruments in order to provide the necessary regulatory oversight in their use.

According to the American Health Information Management Association (AHIMA)(2008), the provisions of HIPAA are specifically attentive to the need to regulate information and data usage and proliferation in this context. According to AHIMA, "for health information management (HIM) professionals who deal with medical records on a daily basis, the way those medical records are managed to maintain the highest degree of privacy and confidentiality in healthcare is up against some dynamic changes in policy and technology. With special focus on privacy and security, the Health Insurance Portability and Accountability Act (HIPAA) created a universal standard set of HIPAA guidelines governing the way medical records are handled" (AHIMA, 1) This has clearly become an area of gaining importance in the fields of healthcare and the emergent arena of telehealth, with the threat of confidentiality violation growing proportionally to the opportunity for technological evolution.

That said, there are some cons to patient privacy expectations that speak to the social prerogatives which are also incumbent upon healthcare providers. There are both legal and public health cons to maintaining patient confidentiality and these constitute significant cause to keep an ethical debate open. One issue which has gained in public attention in recent years, first with the outbreak of SARS and avian flu, and more recently with the spread of swine flu, is that of public health epidemic. A failure to disclose health concerns properly or to allow others to know when one is seriously ill is a way to instigate the spread of a condition. Thus, "public health has laws governing reportable illnesses such as TB, small pox, and sexually transmitted diseases. In these cases, the patient's identity is exposed in order to protect the general public." (Quan, 1) Thus, the protection of patient privacy without proper consideration of these concerns may manifest as a more serious and widespread public health crisis.

And from a legal standpoint, one of the most treacherous legal paths concerns the question of the patient's potential danger to himself or others. This is a condition which was prompted by a case in the 1970s where a young man infatuated with a woman named Tatiana Tarasoff and resentful over her rejection, entered into a serious depression. Stalking Tarasoff and seeking counseling, the young man told the therapist of his intent to kill the woman. When the authorities were notified, they determined that he was not a threat and released him, at which point he followed through on his plan. When the parents of the slain girl sued the University of California for its failure to intervene, the outcome raised a discussion over the right of physicians to disclose otherwise confidential information given by a client.