Patient Privacy Rights and HIPAA: An Ethical Analysis

Introduction: Physician-Patient Privilege and HIPAA

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 — is to be used only for the purposes of treatment and held in confidence by the physician. This concept has also come to apply with increasing importance to general healthcare. Patient privacy is today considered a core right of patients in hospital, clinic, or private care settings. Yet it was only as recently as the last decade that this right was given an overarching legal standard in the form of 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 HIPAA denote an interest in deterring physicians from decisions that are either careless or willfully negligent. Accordingly, Hugget et al. (2004) report that "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 per violation up to $25,000 per year. Criminal penalties are also possible, including $50,000 and/or one year in prison for wrongful disclosure, or $250,000 and/or ten years in prison for the intent to sell information" (Hugget et al., 1). These steep penalties also accompany professional consequences, including temporary suspension or permanent withdrawal of a license to practice medicine. The seriousness of these penalties underscores the weight given to this issue in the broader discourse over patient rights.

The Ethical Dilemma of Patient Confidentiality

That said, a number of ethical dilemmas 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 people respond 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 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 tendency that reinforces the expectation that privacy will be maintained even while engaged in the healthcare system. For patients who approach medical concerns with secrecy, there will also be a desire to keep the treatment circle as small as possible. This may mean that a patient who should be visiting an emergency room or seeing a clinical specialist instead visits 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 what Garrett et al. (1998) describe as the distinction between ethics and law. The text indicates that ethics is not "the same as law, although the law is an important 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 offered by Garrett et al. serves as a useful frame for weighing the pros and cons of the legal and cultural issue of medical confidentiality.

As this 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.

On the other side of the ethical dilemma is the understanding that 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). The fact that this represents a near consensus among users of the American healthcare system is sufficient to warrant further investigation. Its ethical and practical implications are not necessarily in doubt, but the dilemma identified here suggests that there may be considerable nuance in how privacy demands are applied to the field of healthcare.

Arguments in Favor of Patient Privacy

One of the greatest concerns is that a physician's professional integrity may be lacking, in which case patient information becomes vulnerable in numerous ways. For the patient, the emotional risk of personal disclosure to a physician is generally undertaken with some assurance that any condition — regardless of how embarrassing, unpleasant, or revealing — will be kept within the boundaries of the treatment process. This means that information is made available only to those who will play a part in treating the patient. It is clearly an ethical responsibility for those within this treatment circle to handle such information with the utmost 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. Hugget et al. (2004) warn 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 who is not entitled to this privileged information" (Hugget et al., 1).

This speaks to the clear benefits of protecting patient confidentiality. The protection of this information from those who have no professional right to it serves to prevent undue embarrassment, judgment, or negative attention toward the patient. Depending on the nature of the medical condition, these concerns may be socially, personally, or even economically sensitive. The assumption by patients that privacy is ensured allows for a level of comfort in disclosure that is important for both 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 framing suggests that patients might be reluctant to make honest disclosures if they believe their information could be shared for legal, commercial, or other inappropriate purposes.

Conclusion

The above sentiment is an appropriate point upon which to close this discussion, remarking as it does on the idea of a "public peril" that may be invoked by an overly protective emphasis on patient privacy. In reality, though patient privacy is desirable and demands discretion by medical health professionals, there may also be a social good in promoting a culture in which health-consciousness and awareness supersede the current emphasis on a medical secrecy that can be unhealthy for the individual, for those around them, and for the broader healthcare system.

Allen, A.L. (2008). Confidentiality: An Expectation in Health Care. NELLCO Legal Scholarship Repository.

American Health Information Management Association (AHIMA). (2008). Privacy and Confidentiality in Healthcare. AHIMA.org.

Garrett, T.M., Ballie, H.W., & Garrett, R.M. (1998). Health Care Ethics: Principles and Problems. Prentice Hall College Div.

Huggett, J.M., Lai, W., Hodsdon, B.C., & Gay, S.B. (2004). Patient Confidentiality for Health Care Providers. Health Sciences Center, Department of Radiology.

Humber, J. (2001). Privacy and Health Care. Humana Press.

Quan, K. (2007). Health care professionals must learn the rules of confidentiality. Suite 101.

Supreme Court of California. (1976). Tarasoff v. The Regents of the University of California.