CHAPTER 5 - CONFIDENTIALITY AND
THE MANAGEMENT OF HEALTHCARE
INFORMATION
Confidentiality: A Principle with
Qualification
“The patient has a right to every
consideration of privacy concerning its
own medical care program. Case
discussion, consultation,examination,
and other treatment are confidential
and should be conducted discreetly.
Those not directly involved in his care
must have the permission of the
patient to be present. The patient has
the right to expect that all
communications and records
pertaining to his/her care should be
treated as confidential.”
- Patient Bill of Rights
A patient’s basic right to expect the
information he gives a healthcare
practitioner to be held in confidence
can be arrived at and defended using
any of the four systematic approaches
to ethical decision making. Whether
the reasoning is from a utilitarian,
duty-oriented, virtue ethics, or divine
command standpoint, confidentiality
seems to be a settled issue.
● From a utilitarian view, the
long term consequences of
making public any personal
information gained as a result
of practitioner/patient
relationship upon the truth
telling in that relationship.
● From a duty oriented
perspective, personal privacy is
a basic right with its
foundations firmly based not
only in long-standing codes of
professional practice but also
in common law.
● From virtue ethics, the practice
of patient confidentiality has
been a mainstay of health care
practice and forms one of the
virtues that one would expect
from the “good practitioner”.
“What I may see or hear in the
course of treatment or even outside
of treatment in regard to the life of
men, which on no account must be
noised abroad, I will keep to myself
holding such things shameful to be
spoken about.”
Hippocratic Oath
● Confidentiality is a critical
principle, and regardless of the
specialty the “good
practitioner” cannot be viewed
as cavalier in regard to
protecting patients confidence
and privacy.
● A physician may not reveal the
confidence entrusted to him in
the course of medical
attendance…, unless he is
required to do so by law or
unless it becomes necessary in
order to protect the welfare of
the individual or of the
community.
Guideline for Confidentiality for the
Colorado Society of Clinical
Specialties in Psychiatric Nursing as
adopted in 1987:
1. Keep all client records secure .
2. Consider carefully the content
to be entered into the record.
3. Release information only
written consent and full
discussion of the information
to be shared, except when
release is required by law.
4. Use professional judgment
deliberately regarding
confidentiality when the client
is a danger to self or others.
5. Use professional judgment
deliberately when deciding
how to maintain the
confidentiality of a minor. The
 rights of the parent/guardian
must also be considered.
6. Disguise clinical material when
used professionally for
teaching and writing.
Harm Principle
● Secrets: On the Ethics of
Concealment and Revelation,
Sissela Bok cites several
instances where confidentiality
is overridden by more
compelling obligations.
● Bok feels that the personal
protective privilege of
confidentiality is limited by the
harm principle.
● Requires that healthcare
providers refrain from acts or
omissions.
● The harm principle is modified
by the level of vulnerability.
Confidentiality and Genetic Science
The human genome project will
change the face of medicine. It’s very
possible that in the future a physician
will give an eighteen year-old patient a
physical exam that includes a test of
his or her DNA for hundreds of
diseases with known genetic
components. Family histories are
useful, but genetic exams will give the
doctor a much more precise tool to
assess risks and give advice. The legislation to bar insurers from
physician in the future will be able to access to genetic tests.
tell the patient whether the risk is high, ● Confidentiality issues related to
low or average for a given condition genetic testing include the right
and to make lifestyle to know and the obligation to
recommendations based upon known warn, particularly in the case of
risks. There will be personalized Huntington's disease.
schemes for a new kind of preventive
medicine and I think it will prove very
CASE STUDY: CONFIDENTIALITY VS.
appealing.
A RIGHT TO KNOW
In 1984. James Gusella discovered the
● Genetic science has the
marker for Huntington’s disease. This
potential to change healthcare
discovery made possible a genetic test
significantly, providing
for the disease, which became
physicians with more precise
available in 1994. Although the test is
tools to assess risks and offer
now available to indicate whether an
personalized preventive
individual will contract the disease.
medicine.
There are no successful treatments for
● Predictive prenatal testing can
those carrying the gene. One hundred
prevent the retardation caused
percent of the individuals with the
by phenylketonuria, a recessive
gene will have symptoms before the
genetic disease.
age of sixty-five. Suppose that a parent
● Huntington's disease is a
tests positive for the gene and refuses
severe neurological disease
to tell his children. Should the genetics
with no cure. Each child of a
counselor who performed the test
parent carrying the dominant
break the parent's confidentiality?
gene has a 50 percent risk of
developing the disease, and
symptoms do not appear until
middle age.
Modern Health Care and
● Genetic testing can affect
Confidentiality
insurance premiums and
● In the early 1900s, maintaining
employment opportunities, and
confidentiality was a much
Congress is considering
 easier task, as 85% of the
direct medical care services
were delivered by physicians.
Access to medical records and
the obligation to maintain
confidentiality in regard to
them was limited to the
physician and a very small
direct staff.
● Today, over 80% of direct
patient care is provided by
allied health and nursing
professionals. In the hospital,
only about a third of the patient
record is maintained by
physicians, with the rest being
recorded by other members of
the health care team.
● The problem of access to
patient information has been
exacerbated by the growing
use of computerized
information systems.
● The large scale on which
information can be stored and
the case of access to these data
have made distribution of the
information outside the arena
of the patient/health care
practitioner interface a daily
routine, as patient’s data are
used for administration,
payment, utilization review,
teaching, and research.
● In addition to health care
providers, patient’s files may
be available to the following:
A. Insurance companies
B. Public health agencies
C. Employers
D. Federal, state, and local
govt.
E. Attorneys and laws
enforcement agencies
F. Media
G. Accreditation, licensing,
and certification
agencies
● The concerns of these
third-party payers with access
to medical information may or
may not coincide with the
patient's best interests,
inasmuch as confidentiality and
privacy are not necessarily a
high priority for groups such as
governmental regulators,
third-party payers, insurers, or
utilization reviewers.
● Mark Siegler, Director of the
Center for Clinical Medical
Ethics at the University of
Chicago, argues that in hospital
medicine, the existence of
third-party interests and the
development of team medicine
has made confidentiality a
"decrepit concept."
Legal Perspective to Medical Record
Access
Many state statutes and a few federal
regulations require the reporting of
certain types of information, from the
medical record, to appropriate
agencies with or without the patient's
authorization. Common legal reporting
requirements found in most American
jurisdictions include:
● child abuse
● drug abuse
● communicable disease
● injuries with guns or knives
● blood transfusion reactions
● poison and industrial accidents
● misadministration of
radioactive materials
Often these reporting requirements
deal with issues vital to community
health and welfare such as child abuse,
poison and industrial accidents,
communicable discases,
misadministration of radioactive
materials, blood transfusion reactions,
injuries with guns or knives, and
narcotic use. The child abuse statutes
in most states require that hospitals
and practitioners report incidents of
suspected abuse. In these cases, the
practitioners are protected from
lia-blity if they are making the report in
good faith even if the reported abuse
proves to be false. Failure to make a
report in regard to child abuse by
those required to do so can leave them
legally liable for any additional injuries
the child may suffer upon return to the
hostile home environment. An Illinois
statute is illustrative:
Any physician, hospital administrator
and personnel engaged in
examination, care and treatments of
persons, having reasonable cause to
believe a child known to them in their
professional or official capacity may
be an abused child or a neglected
child shall immediately report or cause
a report to be made. The privileged
quality of communication between any
professional person required to report
and his patient or client shall not apply
to situations involving abused or
neglected children and shall not
constitute grounds for failure to report
as required by this Act.
Some states maintain a registry of the
names and addresses of all patients
who obtain drugs that are subject to
abuse. These reporting regulations f. Criminal law
have been upheld as a reasonable requirements
exercise of an individual state's broad
police powers. In the absence of a
legal regulation to provide patient
information, a police agency has no
authority to examine a medical record
without the patient's authorization.
Legitimate Interest
● It is generally considered that
the record is confidential and
that access to it should be
limited to the patient,
authorized representatives of
the patient, the attending
physician, and hospital staff
members who have a
legitimate interest.
● The exact specification of who
has a legitimate interest is a
great concern to health care
practitioners, but there are
some guidelines that are
accepted wherein the need is
for the following:
a. Patient care
b. Professional education
c. Administrative and
Auditing functions
d. Research
e. Public health reporting