Privacy laws and patient confidentiality

By Caroline Wambui A couple of years back, while I was still a student nurse attached to the gynaecological ward, I came across a case of breach of patient confidentiality that made me realise how easy it is to commit a breach as a result of not being alert or just plain thoughtlessness. Patient confidentiality is a topic in nursing ethics that is taught pretty much at the beginning of nursing training. This is because health professionals are under duty to maintain confidentiality of all information that comes to them in the course of their relationship with patients. The duty protects information created, disclosed or acquired directly or indirectly in the context of the patient and health service provider relationship. A young woman in her mid-twenties was brought into the ward at around 9.30pm, having been transferred from the Emergency Room (ER). She had complained a few times of some abdominal pain and on that late afternoon she had suddenly collapsed and lost consciousness. She had some virginal bleeding and needed immediate intensive care, especially because of the intensity of the bleeding. Her husband had been allowed to see her after a long while, during which time she was being attended to, and later asked to leave because the visiting hours were over. He had not been informed of the diagnosis, but after being assured that his wife was in a stable condition, he calmed down and agreed to go home. I later learnt that the patient had been diagnosed with an ectopic pregnancy, a condition requiring emergency treatment and whereby the fertilized egg stays in the fallopian tube as opposed to the uterus, resulting in excruciating pain and risk of loss of life due to excessive bleeding owing to rupture of the tube as the pregnancy progresses. Most often ectopic pregnancies happen within the first few weeks of pregnancy, and the person affected might not even know they are pregnant yet. So it can be a big shock. Ectopic pregnancies are scary and sad. The baby mostly cannot survive depending on their position in the reproductive system. I have heard of cases where mothers lost their lives due to excessive bleeding. After she had learnt of her condition shortly after gaining her consciousness at the ER, the patient categorically stated her wish not to inform her husband of the real reason for her current state. She said she wanted to be the one to break the news to him. On the next day, her husband arrived with a few personal belongings for his wife and on his way to his wife’s room he casually asked some nurses how his wife was fairing, while requesting to speak to the doctor in charge about his wife’s condition. Without a thought, a third year nursing student told her she was doing much better than the previous night and she was sorry his wife had lost their baby! This statement was followed by a deathly silence. A couple of nurses around who were actually busy with other duties held their breath as they suddenly realised the shock on the man’s face on receiving the news. The bolt from the blue was then followed by a hollow “what baby” from the man and an awkward moment of doom. He walked off to his wife’s room. The student, seemingly embarrassed, realised how she had not only committed a breach of confidentiality, but also dropped a bombshell that was also going to blow her away at best. It is not unusual for nurses to run into information about medical status of patients that have a potential of damaging thepatient’s families. Such cases include discoveries that put the paternity of new-borns to question due to unlikelihood based on the documented blood groups of the child’s parents. This, however, does not justify the disclosure of this kind or any other kind of patient information whether to the persons concerned or to persons not directly involved in their treatment. A breach of the duty of confidence can have a number of consequences. It may, for instance lead to; disciplinary action by the employer on the person who made the disclosure; an action for damages against the person who made the disclosure and/or his/her employer by the aggrieved client; disciplinary proceedings under the health professional’s regulatory statute; imposition of a fine where there is a contravention of a statutory duty of confidence. And, yes, even students are not exempt from these statutes especially if the topic has already been covered at school and the more advanced in studies one is, the more the responsibility one has to carry. The question arises if a breach has been committed, when the person to whom the information has been divulged is a spouse. While a health practitioner may feel naturally inclined to share information, such as responding to an inquiring spouse, the requirements for making an exception to confidentiality may not be met. If there is no explicit permission from the patient to share information with family members, it is generally not ethically justifiable to do so. Exemptions are made in cases where the spouse is at specific risk of harm directly related to the diagnosis, take for instance an incurable STD like HIV/Aids; Certain communicable/infectious diseases must be reported to the public health authorities as a requirement by state law. In these cases, the duty to protect public health outweighs the duty to maintain a patient›s confidence. It remains the patients (and sometimes local public health officers’), rather than the physician›s obligation to inform the spouse. This calls for an appeal to the general public to take no offence upon receiving superficial responses from medical practitioners, or a hint to instead come over personally to the hospital and pay your loved one a visit upon making a call to the hospital inquiring about the state of a loved one or a friend. This is because they are neither under any obligation nor do they have permission to issue this kind of information. The general principle is that the duty of confidence prevents the disclosure of information to individuals and organisations not involved in providing the health service. Health practitioners are not allowed to discuss patients, be it at home with their spouses or say for instance in the elevator or other public place, since maintaining privacy may not be possible in these circumstances. Similarly, access to medical information and records by third parties is legally restricted. There are however a number of exceptions where confidential information may be disclosed to third parties: Concern for the safety of other specific persons;- Clinicians have a duty to protect identifiable individuals from any serious, credible threat of harm if they have information that could prevent the harm. The determining factor is whether there is good reason to believe specific individuals (or groups) are placed in serious danger depending on the medical information at hand. This is the case for instance when the patient shares a specific plan with a physician or psychotherapist to harm a particular individual or a group of persons, or whose condition poses a threat to the public at large. An example is the recent occurrence that shook the world when a co-pilot of a German airline committed a murder-suicide when he deliberately flew the plane into a cliff in France killing not only himself, but also all the passengers and crew on board the flight. It later emerged that he had been suffering from bouts of depression and had in the past been treated for suicidal tendencies. This triggered debate on confidentiality taboo, and calls to relax Germany’s strict doctor-patient confidentiality law allowing or requiring doctors to divulge a patient’s psychological status to say, his potential or current employer where the public is particularly endangered due to the sensitive nature and the potential magnitude and mass of losses of resources and human life posed, owing to the nature and responsibility bestowed on certain professions. These calls were however rejected by medical and aviation associations arguing that the laws were a “precious commodity” that should not be tampered with, and that such measures would not prevent accidents from happening and instead would only lead to affected patients not seeking out treatment, so as to prevent information being passed on to their employer. The head of the Federal Chamber of Physicians also asserted that doctors already had the authority to break the confidentiality vows if they feel their patient puts others at risk. The implication of this is that the duty to warn third parties of imminent threats trumps a duty to protect patient confidentiality. Legal requirements to report certain conditions or circumstances; State law requires the report of certain communicable/infectious diseases to the public health authorities. From a legal perspective, the State has an interest in protecting public health that outweighs individual liberties in certain cases. An example of reportable diseases includes measles, rabies, anthrax, botulism, sexually transmitted diseases, and tuberculosis, amongst others. Suspected cases of child, dependent adult, and elder abuse are reportable, as are gunshot wounds. Local regulations and institutional policies can vary regarding what is reportable and standards of evidence required. Clinicians are required to stay informed about state and local policies, as well as institutional policies, governing exceptions of patient confidentiality. All persons, including administrative staff, who come into contact with the information as part of the health care process also have a duty to maintain the confidentiality of that information. The incident at our ward escalated when our patient’s husband in his aggravation lost his cool after the initial shock and could not contain his voice apparently because not only was he unaware that his wife had been pregnant, but also because they had not been intimate for two years since their marriage had been going through a rough patch and they were barely just holding it together. This information became public knowledge as a result of his outburst of emotions in a fit of rage before some male nurses escorted him out of the room. Long story short, the nursing student found herself in a precarious position, with her career hanging by a thread as she awaited her fate, especially after the flames got fanned when our female patient whose marriage was most likely headed for the rocks threatened to file a lawsuit against the hospital for breach of confidence. The rest of us were served with a wake-up call to be sober and vigilant at all times not running around like a headless chicken where patient information and third parties are concerned as breaches lurk everywhere; in a simple phone call here, or a careless conversation there, just waiting to be committed.

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