
- Vol 39, Issue 11
HIPAA vs Ethical Care: Accounting for Privacy With Neuropsychiatric Impairments
The law presumes that individuals are rational. But what about when the patient has neuropsychiatric impairments that hinder judgement?
The law presumes that individuals are rational. The reasonable individual, a hypothetical figure whose actions judges and juries weigh against others, will lucidly consider risks versus benefits before acting. Yet, we know that neuropsychiatric impairment can impede the capacity for making these calculated judgments, and in some cases this impairment is associated with a lack of illness awareness (or “insight”) that affects
Nevertheless, patients, families, and clinicians must still make critical health care decisions, such as a patient’s determination to engage in or refuse treatment, often with urgency and limited information. The
So, what happens when the law inappropriately holds individuals with
Case Example
“Mrs Martinez” is a woman aged about 55 years presenting with severe depression and symptoms of
Discussion
Given other circumstances, the patient presumably would have made a deliberate decision by weighing the benefit of timely disclosure against the loss of privacy or control of her personal health information. This measured decision-making process is vital in making decisions that affect one’s health, safety, and well-being. However, neuropsychiatric impairment can diminish this faculty. For example,
Fortunately, there is a practical workaround under HIPAA that provides for limited disclosure. Per 45 C.F.R. § 164.510(b)(3), if:
disclosure cannot practicably be provided because of the individual’s incapacity or an emergency circumstance, the covered entity may, in the exercise of professional judgment, determine whether the disclosure is in the best interests of the individual and, if so, disclose only the protected health information that is directly relevant to the person’s involvement with the individual’s care.
In this case example, the treating physician correctly informed Mrs Martinez’s parents that they could provide information regarding her condition. However, the physician also told the parents that she could not, in return, provide information or share observations of the patient. With the information provided by the parents, the physician drafted a letter that provided Mrs Martinez’s employer with the information required to preserve her job and support eligibility for disability-related accommodations. Since the physician’s letter was necessary to maintain the patient’s insurance coverage for treatment, it fits under the exception to the consent requirement.
Mrs Martinez eventually met with an independent medical examiner, who confirmed her disability and suggested various treatment options with family support. The examiner herself could not provide treatment, just as the treating physician could only give a factual account of her clinical impressions, not an objective disability evaluation. Moreover, although the examiner’s evaluation in this context was not therapy, it ultimately served a therapeutic purpose: After this positive experience with the independent medical examiner, who met with Mrs Martinez in her home office, Mrs Martinez consented to treatment with a psychiatrist.
This resolution highlights how a patient can more readily accept psychiatric treatment in a supportive context and obviates the need for a health care proxy or guardianship, which both pose risks to a vulnerable patient’s agency. Despite neuropsychiatric impairment, clinicians can find ways to respect their patients’ autonomy, dignity, and privacy to provide them with both disability accommodations and treatment. With the pandemic intensifying patients’ usual reasons for resisting psychiatric referral—such as fear of
Concluding Thoughts
The case study poses a difficult trade-off, balancing the patient’s right to self-determination versus the duty to provide care. However, when neuropsychiatric impairment diminishes the capacity for rational decision-making, the presumption of reasonability must give way. Clinicians can nonetheless respect a patient’s dignity and agency in these instances while concurrently preserving the patient’s well-being. Overbroad interpretations and applications of HIPAA need not outweigh ethical duties to patients. Through sound professional judgment and an understanding of HIPAA exceptions to the consent requirement, we can help patients heal and return to a state of mind where they can truly exercise their autonomy, maintain their dignity, and ensure their right to privacy.
Mr Larrauri is a member of the National Alliance on Mental Illness Board of Directors in Arlington, Virginia. Dr Bursztajn is a faculty member at Harvard Medical School, and a practicing psychiatrist in Cambridge, Massachusetts, with a longstanding interest in decision-making under conditions of trauma and uncertainty. Dr Stein is executive director of the Harvard Law School Project on Disability in Cambridge, Massachusetts.
References
1. Corrigan PW, Druss BG, Perlick DA.
2. Bursztajn HJ.
3. Public health professionals gateway: public health law: Health Insurance Portability and Accountability act of 1996 (HIPAA). CDC. September 14, 2018. Accessed September 8, 2022.
4. Berwick DM, Gaines ME.
5. Bursztajn HJ, Barsky AJ.
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