Question:
Critically consider whether the law and guidance regarding Medical Confidentiality provide clear advice regarding the circumstances which will justify a clinician to disclose Confidential Information without consent from an adult patient with capacity.
The aspect of medical confidentiality is the act of trustworthiness among the medical practitioners with persons seeking medical attention. The moral reasoning behind this is consequentialist motive; which seeks to uplift the state of the patient. Over the recent past there has been a huge campaign move aimed at improving protection of confidential information which is necessary in public health arena. The medical practitioners have been practising what is referred to as the principle of Hippocratic Oath which is regularly updated by the international community and assented in the Geneva Declaration, (Steven, 2005).
Currently the precept of building of trust is a critical aspect in the current arenaof medicine. There are instances where there is need for breach of this idealism. Critical scenarios have shown the need when there is breach for disclosure with regard to consent, disclosures required by law and for public interest consumption, (Sankar et al 2003).
Health care confidentiality entails practice and refer to the access of records of the patient and the link created that holds confidential details of the patient and the medical practitioner. With its roots in patient provider confidentiality, as traced back in fourth century of BC under the oath of Hippocrates, it has been laid as a foundational aspect in medical practice, (McWay, 2010).
Confidentiality recognition by law states that it is kept among two parties of interest manner with the physician and patient, Brodnik, Rinehart-Thompson, Reynolds, 2012). Hospital patients , expect confidential relay of information in the relationships engagement in the facility .
Creation of trust worthy environment through respect to patient’s privacy is essential in encouraging the patients to seek medical attention and to be honest with each other. It increases the patient willingness to access care. The obligation that underlies the health care provider from disclosure of medical information is concerned with the case of the patient. Appreciate care ensures that such medical information may be discussed among medical professional team members, and that all team members in the health set up are entitled to access to patient medical attention and have the right and obligation to protect them.
Electronic medical record have seen a challenge in the past in aspect of confidentiality, however in accordance with Health Information Portability and Accountability Act of 1997, it requires health institutions to make polices which are in line to protect them and the privacy of the patients electronic information, (Luo, 2006).
At times, family members demand to know the confidential information of the kin’s. Physicians at these scenarios often feel naturally inclined to provide this information. These instances include when spouses may need to be revealed privileged information, and it may not be explicit that such information may not be shared when the patient has not consented to such agreements. However this can be done in instances when the patient is at risks of harm which relates directly to diagnosis, (Washington, 2010).
Other unintended disclosures can be made, and it occurs in variety of ways. A case example is when medical practitioners can disclose the medical patient confidentiality in elevator ways with their colleagues or any other public places, thus maintenance may not be guaranteed in these places. Identifiable patient information should thus be encrypted which ensures that patient information is protected.
Confidential information between the physician and patient has been an essential component in flow of information which is essential in medical information. Patients divulge this information in a setting they can trust and share the private feelings. The American Academy of Family Physicians provides the essential support to all electronic information within the context of medical arena.
The AAFP understands the need of protecting patient information, and the protection of patient information has been protected in patient privacy. Data sharing in medical practice for patients prioritizes the confidentiality of patients. Thus AAFP allows for greater recognition of standards principles regarding privacy information, (Langheinrich, 2001).
Outlined principles of medical information entail;
Underpinning values of confidentiality need to be enshrined in common law. Often confidence perspectives is relevant when the persons share the information obtained with other unauthorised person’s either in medical field such as doctors or other authorised persons. Engaging in breaching of medical confidentiality ensures that enforcement of legal duty to protect such information.
Medical institutions over the past have excising little mitigation with regard to breaching patient confidentiality aspect. A case example in UK, has seen that up to date, no criminal conviction has been undertaken among the health care practitioners breaching or breaking patient confidentiality protocol. However civil claims have been instated and damages granted, like in the case of Cornellius v Taranto, [2001] 68 BMR 62).
Essentially medical information have the adequate confidence attributes, have the application in imparting surrounding events on aspects of confidence , disclosure lacking access and damage of the person relaying it, information not available in public arena and in the wider population interest . Confidentiality has often been through to be an ethical issue but it couples up to be legal obligation. Employed health care workers have the right to protect the confidentiality of patient information. The practice of common law is the core duty to preserve the professional confidence, (WMA, 2001).
Most government’s constitutions worldwide provide for right to privacy among the clients, further it is supported by ethical guides which state that practitioners have the right to protect the information of any patient.
The obligation of confidentiality goes beyond the undertaking of divulging confidential information. It provides the responsibility to ensure that records contain patient information be kept secured at all times.
Confidential records should be kept in places where there is limited access to other un authorized persons. Thus patient information should be kept confidential and be used for the un intended purposes only.
Hence patients have the right that information regarding their status is kept secretive as much as possible. Centrality is central in trust among patients, and that assurances may give the patients the right opportunity or reluctance to provide information to the practitioners. When disclosure is needed beyond the medical arena, medical professionals ought to seek permission from the patients.
Un- intended breaches of patient confidentiality are always practiced in wards and often when medical records are left visible to other persons and when preoperative assessments are left in open environment where it can be accessed. With the increased use of computerized documentation process, it has yielded faster documentation of results and wider distribution of information which further can lead to increased risk of unauthorized access, (Nissenbaum, 2004).
These unintended breaches have been observed in cases when there is emailing practices among colleagues. Data encryption protocols for emails must be used by both those concerned with the senders and recipients. Confidential information on personal computers needs to be encrypted so as to assure for patient confidentiality protocols, (Plantinga et al., 2003).
Confidential documents for patients such as theater lists, need to be discarded through paper shredding and computer disposal of computer formats. Aspects for photo shooting and video embeded records which form the data of the patients need to be passed on various tests and storage equipments, thus its access should follow strict compliances of data and confidential information protection, (Harper et al 2001).
Health professionals thus should be keen and being keen ti posses risks in advent which breaks the social sites which include face book, internet avenues and through passing and communicating professionally. The duty to provide security to the patient and gurantee confidentiality extends also Libela laws that are applicable. The usage of internet based sites have shown that there is need to be mindful not to disclose medical information.
Data protection laws have been passed in various countries including US and UK, financial implications have been set in instances where such institutions negate the duty of protecting patient information.
The principles which lays the foundation for non disclosure of medical information underlies patient consent, statutory obligation and those that weighs the public interests visavis privates concerns.
Instances where patient confidentiality can be breached
There are exceptional instances when the overriding concerns exceed the breach of confidentiality among health care professionals. The following two scenarios are exceptional cases where concerns of confidentiality are breached;
Case Exception 1: concern for safety of other people
Granted access to medical records and information by other persons let’s say third parties are legally no allowed. Health care professionals have the right of duty to protect individuals and to protect them from serious and credible threat and they had the information that could have minimized the harm. In this case scenario the determining aspect is good judgment to assess whether specific persons are really in great danger according to the medical information provided. A clear example is homicidal ideation, whereby a patient shares specific plan to cause harm to a particular individual.
The above context can be explained by a US based case example in the state of California with regard to Tarasoff case. This example shows the challenges health care and medical practitioners often face in protecting confidentiality. A graduated student disclosed to the counselor of the University of Berkley that he intended to obtain a gun and shoot Tatiana Tarsoof. The psychologist found the threat of importance and credible and was faced with the obligation of maintaining confidentiality and warning the individual from the imminent harm. He took the step of informing the campus police. The police warned the student but failed to warn the victim. The student later turned on his prey and stabbed him to death. The parents of the victim moved to court to sue the police and the psychologist for the imminent failure to warn the victim. The court in this case ruled that the discharged of duty required the psychologist to take more steps, through warning the victim and to notify the police and take the reasonable steps under the situational circumstances, ((Ref. Tarasoff case, Beyer, 2000, Merton, 1982)
The ruling implied that the duty of warning third parties overrides the duty of confidentiality to protect the patient confidentiality; however the determination of such severity of the case is usually complicated. This case has been used in medical law practice in the essence of the duty of the health care practitioner to warn innocent victim of harm which overrides the duty of confidentiality, (APA,2014).
Case exception 2 ; Legal framework for reporting certain confidential reports an d circumstances
Most state laws of various countries dictates that reporting of certain infectious and communicable disease be reported to public health authorities. In this instance duty to protect public interest outweighs individual confidential. Diseases such as measles, rabies, botunilism sexually transmitted diseases and tuberculosis cases have to be disclosed so as mitigate measures can be adopted to prevent more harm and injury, (NHS, 2010).
Often at times medical practitioners face instances where ethical or legal excerptions scenarios exists which can put another person or group of individuals at risks, then breach of confidentiality can be breached . in high risks cases, breach f confidentiality is warranted.
At times the information being held by medical practitioners can be essential in law proceedings, this act of disclosure will not however amount to disclosure. A court of law can thus order for this purpose. It is paramount further to note that a court of law can penalize a doctor for court contempt if he/she fails to provide necessary assistance to give the police wrong information, (Jackson, 2011).
An example is when a patient can be admitted in the intensive care unit placed under intubation and ventilation and a police officer request blood samples for forensic examination, the ethical dilemma in the case is whether you would provide the samples since the patient can give the consent at the state he/she is in. thus if the samples is directed to clinical management then it would not be delayed. The samples results however cannot be used in courts of law unless an order of the court is provided requesting or the medical professional concern is satisfied that it is essential for public safety concerns.
Further if a request is made by forensic officer, a medical officer can warrant the submission of patient sample so long us it doesn’t interrupt the medical regime being undertaken. The police request in the case of forensic practitioner should have request note which will be filled in medical records confirming the rationale for request. However the medical practitioner refusal of samples taken on the grounds of consent is a hindrance in police investigation and you can be judged for guilty of an offence.
Police are provided with an opportunity to prevent crime. For them to move with speed state laws have provided them access to materials which are considered classified information. This information can include medical records, provided that such request has been made through a court of law, (Cappeli, 2012).
Such disclosure of confidential information is warranted when national security is at risks or any terrorism suspicion. Further in US terrorism Act of 2006, gives the health care practitioners rights to inform or provide any information to the police who may help in preventing crime or apprehending criminals, (Knepper et al., 2016).
At times disclosures can be made to public interest in a bid to prevent or detect crime, however in this case, the courts play crucial role in determining the subjective and objective context of such scenarios. Wide variation of interpretation between the interest of the public and the general interest of the public, thus a court of law will play a crucial role in establishing which course justifies public interest with regard to confidentiality, (Zacharius, 1988).
In countries such as UK, statutory obligations have been established on the framework of how doctors could disclose crcuail information based on the . In US there is prima facie duty to break privacy protocal and warn a victim identified if there is harm to be inflicted, (Tarassoff v The Regents of the University of California [1976] 17 Cal 3d 358). Further in Briatin, there is evidence of greater magnitude required by doctors, which they may be not observant to open up confidential information which can lead to increased risk of potential harm, (W v Edgell [1990] 1 All ER 835).
As far as the medical practitioner acts responsibly, don’t assume the risks and the action geared to the patient and of the public at large then they will be less likely to be found negligent. Motivation to offer protection to others relies on sufficient legal proximity of the involved individuals. Hence unless there is a clearly identifiable individual at risks, then there is minimal chance to warn and thus disclosure of confidential information.
Public health concern is the overall goal and aim of health care, and there are instances which permit disclosure of confidential information outweighs the benefits of confidentiality of an individual. Historically it has been the norm of medical practitioners to provide statistical data through regular reporting of communicable disease data.
HIV being notable and indisputable infections can be linked to criminal prosecutions in reckless transmissions and it remains a sticky issue in disclosure partly due to the perceived sigma associated, (Oberle & Hughes, 2001).
The practice of ethics and confidence when a patient death. Personal data of patients are often available in the form of certificate of death; however the inclusion of HIV/AIDS on the certification may be provocative. Medical practitioners need to ensure that there is always honest and full disclosure of information. Information pertaining threatening communicable disease need to be relayed to the concern offices for action, (Zhu et al., 2004).
The critical duty of confidentiality is extended beyond the medical practitioners to the organizational levels pertaining health records. Limited information should be provided to persons of interest such as the solicitors. Health information in public and private bodies should not be made accessed to everybody to gain access on personal information of the patients. Public interest cannot be a justifiable reason for breaking confidentiality protocol. Disclosures are permitted when there is reason criminal activity is being undertaken. Highest level of diligence should be observed when media is used to highlight concerns of the patient, when such actions lead to harmful effects on the patient or their close associates, (Langheinich, 2001).
Conclusion
Laws and guidelines are samples of how considerations in health care practice should be geared towards confidentiality, privacy and security. Medical health practitioners are thus uniquely identified as health information care takers with respect to confidentiality, privacy and security of patient information. Thus medical practitioners have the responsibility of respecting information. The patients expect privacy of the rights with regard to their own information; however there is need to understand where there is a need for such information to be disclosed. Thus in medical arena, there is need for medical practitioners to understand the instances which negates such confidential information to be disclosed and the procedures pertaining such disclosures without patient consent notification.
References
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