A friend has a 32-year-old daughter confined in a state mental hospital with schizophrenia. He and his wife feel that they should be able to talk with the treating doctors and caseworkers about the condition and treatment of their daughter. The doctors, however, will not discuss her case with them unless the daughter has a signed consent agreement in effect – an agreement that must be revalidated every 90 days and that she can revoke at any time. Depending on her state of mind at any given point in time, the release may or may not be in effect. Everyone involved acknowledges the frustrations of such limitations, but the hospital staff is following the letter of the law: protecting the rights of patients.
Once again, I need to add the disclaimer that I am not an attorney; however, disclosing patient information can be a legal minefield if the proper precautions are not taken.
Every physician and health care provider is constantly faced with similar situations concerning their patients:
- A child inquires about the medical condition of an elderly parent.
- A boss questions the recovery status of an employee.
- A wife wants details about her husband’s condition because he is reticent to talk about it with her.
- A brother calls about the care of his sister.
Those making such inquiries usually maintain a sense of entitlement to the information; after all it is their child, their parent, their relation, their employee. Sometimes they can be quite forceful and convincing in their arguments to gain access to such information; yet, by law, the medical practitioner is prohibited from sharing without the patient’s permission.
Family or not, HIPAA places very strict limits on sharing confidential medical information with anyone. Remember that appearances can be deceiving and there could be ongoing legal activity relating to separations, divorces and other family or work issues.
Third party releases are also prohibited in most cases. For instance:
- A parent cannot verbally request a child’s records to be sent to a daycare center or school. The parent must either sign an authorization form or pick up the records to personally deliver them to the school.
- An attorney’s written request for a client’s records does not authorize release without a signed authorization from the patient or a court order.
- A university professor’s request to review medical records for a study is also prohibited without a signed authorizations or a waiver approved by the IRB (Institutional Review Board).
As with any rule, there are some exceptions that do not require releases or authorizations.
- Information can be shared between clinicians who are involved in the patient’s care.
- Activities related to such health care operations as audits, credentialing and accreditation are allowed. However note that outside auditors must have a signed business associate agreement in place before accessing records.
- Governmental entities may require disclosure of information related to public safety. (For instance, losses of consciousness may have to be reported to motor vehicle departments or direct threats to harm someone may have to be reported to law enforcement officials.)
To avoid potential lawsuits or claims, take a conservative approach to the disclosure of information. Do not make assumptions. Ask patients, in advance, to identify those individuals with whom information can be shared. Place such signed consents in a prominent and accessible section of the chart. In cases of surgery, have the patient identify one person with whom the surgeon should talk after the operation.
Ensure that your staff is fully briefed on current laws as to disclosure of information, particularly over the telephone – including information to other physicians.
In today’s world of minors from mixed families, divorces and child custody agreements, many questions can arise about the release of information to non-custodial parents and extended family members. If there is any doubt about releasing information, first contact your professional liability insurer or a health law attorney for clarification.