HIPAA, the Moral and Ethical Dilemmas Whitney Perry Keuka Ethics PHL 115 Anne Orr March 13, 2013 HIPAA, The Moral and Ethical Dilemmas “Privacy and confidentiality have been foundational principles of medical ethics since the time of Hippocrates” (Rothstein & Talbott, 2007, p. 38). Several years ago the US Congress passed the Health Insurance Portability and Accountability Act (HIPAA) to protect the privacy and confidentiality of medical records and personal information. These efforts mostly focus on preventing unauthorized use or disclosure of a persons health information (Rothstein & Talbott, 2007).
These laws need to be in place to protect this information from entities that will do harm or unjustifiably use this information to harm an individual. However, this leaves us to consider the impact on public health that has been created when a healthcare worker is unable to share knowledge of ones health information that may cause harm or threat to others. In this essay I will discuss the intended and consequential impact of the implementation of HIPAA on both the individual and society as a whole. I will discuss the four classical virtues of justice, courage, prudence, and temperance.
Additionally, I will discuss the three fundamental important values of the healthcare professions in relation to HIPAA and public safety. I will also discuss the ethical system of consequentialism and how it is applied to the public health model of our era. “The HIPAA Privacy Rule establishes national standards to protect individuals’ medical and other personal health information and applies to health plans, healthcare clearinghouses, and those healthcare providers that conduct certain healthcare transactions electronically.
The Role requires appropriate safeguards to protect the privacy of personal health information, and set limits and conditions on the uses and disclosures that may be made of such information without patient authorization”. (Wartenberg & Thompson, 2010, p. 407) This role was in response to valid concerns regarding the privacy of medical records and other personal health information. From its conception HIPAA has become one of the most significant healthcare governing laws of our generation. It is the first thing addressed with each patient interaction throughout the country’s healthcare system.
I do believe in the sanctity of HIPAA, although the true question that we must evaluate is the balance of an individual’s privacy protection and the protection of the public. The penalties for violations of HIPAA are severe. These penalties include not only significant monetary damage, but also the threat of criminal prosecution. “A person who knowingly obtains or discloses individually identifiable health information in violation of HIPAA could face a fine of $50,000 and imprisonment for up to one year” (www. mh. ny. gov). In the event that the violation is a result of malfeasance these penalties increase dramatically. As healthcare workers the threat of these penalties certainly impacts our ability to balance HIPAA clearly due to the threat of our livelihood. First and foremost in nursing, when dealing with patients, we apply the virtues of beneficence and non-malfeasance to our decision making processes. We want to always “do good” for our patients and “do no harm”.
There are times when we are taking care of our patients and they divulge information to us that could possibly result in a threat or harm to others. At times, HIPAA binds our hands on what we can do to protect the others in order to keep our patients health information private. Legally, we are not allowed to divulge our patient’s information, but morally and ethically as a registered nurse I struggle with this. As registered nurses we want to do right by our patients, but then realize we also have to think of the greater good of the public.
Privacy is held to be an individual fundamental right. According to American Nurses Association, “When the nurse learns personal or private information about another individual, such as through the patient-nurse encounter the nurse is expected to keep that information confidential and share only that which is necessary to provide care to the patient” (Erlen, 2004, p. 411). There have been instances when patients are brought into the hospital who work in areas where people’s lives are in there hands every day, such as bus drivers and teachers.
These people may be suffering from alcoholism, drug addiction, or have unstable mental health issues. Despite this they may be employed in professions that require them to provide for the safety and care of others. We, as the nurse, have intimate knowledge of their lifestyle, and know they could harm multiple people each day because of this. Unfortunately, these patients do not fall into the same category as Child Protective Service (CPS) cases or New York Secure Ammunition and Fire Arms Enforcement Act (SAFE Act) cases.
For both CPS and SAFE act cases the nurse is governed by a state or federal law which not only protects her when reporting such information, it mandates her to do so. This is not the case when it pertains to substance abuse or mental health issues in our public professions. As a nurse our patients are our first priority, but as human beings we also think about the other people that touch our lives each day. These people are the bus drivers that pick up our children and the teachers at school who are with our children for a longer period of time than we are on a daily basis.
I struggle in regards to these patients as a nurse and mother. How do we differentiate between what we have been taught as nurses and what we believe as human beings? On one hand, we must look at our patients, who are flawed human beings like the rest of us, and try to help them live a life they can be proud of. At the same time we are taking care of our patients we know that they are putting others at risk everyday for harm or death. We as nurses set up the resources these patients need when discharged from our care in order for them to receive the help necessary for recovery. Is this enough though?
Do we just let them walk out our doors to take care of our family and the public knowing they are drinking and driving or unstable and possibly violent? How is it possible that we are not required to report these instances? I realize that everyone is afforded privacy in their lives, but if it affects others negatively they should be held accountable. This is my belief, but I also will uphold my responsibility as a registered nurse. We hope that they will have patient autonomy and play an active part in their own healthcare but know that statistically this is not usually the case.
This is a moral dilemma I struggle with on a daily basis and have discussions with many of my colleagues who go through the same thing. “As noted above, pledges to protect patient privacy and confidentiality have been standard features of medical oaths and codes of ethics since antiquity” (Moskop, Marco, Larkin, Geiderman, & Derse, 2005, p. 54). The consequentialist framework provides the ideal ethical system approach to evaluating this dilemma. By applying the virtue of temperance we strive to strike that delicate balance between individual right and public wrong.
The classic consequentialist view is that it is permissible to torture someone to obtain information about a bomb they have placed that will harm or kill others to make sure this event does not occur, the ticking bomb theory. (Hinman, 2013, p. 185) Taking the consequentialist argument in regards to the healthcare system it would be permissible to release a patient’s health information if it will save the public from threat or harm. Under certain circumstances it should be permissible to negate HIPAA for the greater good. This angle of consequentialism would be resoundingly supported by the utilitarian argument.
In the strict utilitarian principle the rights of no one individual are significant. It is with this belief that all decisions should be made in favor of that which produces the greatest good for the greatest number. On the other hand, the opposing consequentialist view would argue that indeed the consequences of such acts would not be able to be controlled and do not justify this end. If this view is used with regards to HIPAA then we would choose as healthcare providers to not release the information because the global consequences would not justify the means.
It is almost certain that the breach in individual privacy would be misappropriated and overused in the name of public good. Would the virtue of justice be upheld under these circumstances? In striving to assure that each individual receives his or her just due in regards to privacy and protection we must by law maintain our patients privacy. Patients who voluntarily come to the hospital for treatment of their addictions or mental health upholds the virtue of courage, although may lack the virtue of prudence. The courageous patients seeking our help may not choose to do so if there is no promise of confidentiality.
This consequence would impact our ability as healthcare providers to provide appropriate care, informed consequences of their action, mental health counseling and addiction treatments. These are the patients that would likely use patient autonomy to take responsibility for their part in their care. If we do not provide that complete confidentiality we would be doing a greater disservice to public safety as that these individuals would no longer seek appropriate therapy and treatment for fear of public prosecution. On the other hand, the patients that are forced to come to the hospital, such as 941 ental health patients and 2209 intoxicated patients have very little patient autonomy. These patients cannot apply prudence or courage in their current situation. These are the patients that morally and ethically leave us torn and scared as registered nurses. In my career there was a patient that entered the emergency department because of a motor vehicle accident. It was found through our history and assessment that this patient was intoxicated and in fact was an alcoholic. This patient’s career was as a bus driver for children, and admitted that he drinks heavily on a daily basis.
Immediately upon acquiring this information I became uneasy and consulted the licensed social worker for the emergency department. We wanted to alert the authorities to this person’s action because of the detrimental consequences they could have for the public. Although, through our research we realized that we did not have a legal leg to stand on to divulge this information to anyone that could bring a stop to it. We then tried speaking with the individual, politically correct of course, to get him to see his addiction and that there are resources we could supply to help better his life.
No matter what we said or tried to get him to see the errors of his ways, he just wanted to be medically taken care of and discharged. In this situation it left me feeling as though I had indeed just put the rights of one individual over the lives of children within my own community. That as both a nurse and mother was a very difficult pill to swallow. Was I truly following my duty of non-malfeasance and beneficence? Unfortunately, this is an example of the majority of the patients afflicted with the disease processes we have talked about previously and not the latter.
The patients that voluntarily seek help are few and far between. The resources allotted these patients, regardless of how they get to the hospital, voluntarily or forced are not enough to take care of the masses. Additionally, another consequence that needs to be considered is that by breaching our patients privacy on these matters it could likely result in loss of job and income for these people. These actions alone could possibly exacerbate substance abuse and mental health issues. One must consider the harm that this does to our patient.
Once the bus driver’s addictions and lifestyle have been made public will he or she be able to live with this? Would our attempt for greater good result in the suicide of one of the patients that came to us for care? We also need to think about the fact that if these people lose their jobs and income would they even have the funds or the means to receive help or treatment. Through my research for this paper I have learned that there are many aspects in regards to this type of matter to consider.
It is essential that a diverse group of healthcare professionals collectively take a deeper look at the full impact and consequences of the Health Insurance Portability and Accountability Act of 2003. “We need to enlarge the scope of the discussion on privacy protection to include greater attention to the public health impact of increasingly restrictive rules on access to health data (Wartenberg & Thompson, 2010, p. 410). I realize that I must take into account all consequences of my actions with my patient, good and bad, and not jump to conclusions.
However, after further analysis I do believe that we must challenge ourselves, the medical and nursing societies governing bodies, and our own government structure to reevaluate the value and limitations of HIPAA. References Erlen, J. A. (2004, November/December). HIPAA-Clinical and ethical considerations for nurses. Orthopedic Nursing, 23, 410-413. Hinman, L. M. (2013). Contemporary moral issues diversity and consensus (4th ed. ). : PEARSON. Moskop, PhD, J. C. , Marco, MD, C. A. , Larkin, MD, MSPH, G. L. , Geiderman, MD, J. M. , & Derse, MD, JD, A.
R. (2005, January). From hippocrates to HIPAA: Privacy and confidentiality in emergency medicine-Part1: Conceptual, moral and legal foundations. Annals of Emergency Medicine, 45, 53-59. Rothstein, M. A. , & Talbott, M. K. (2007, March 7). Compelled authorizations for disclosure of health records: magnitude and implications. The American Journal of Bioethics, 7, 38-45. Wartenberg, D. , & Thompson, D. W. (2010, March). Privacy versus public health the impact of current confidentiality rules. American Journal of Public Health, 100, 407-412.