Community care requires confidentiality, too
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EDITOR'S NOTE: Nancy J. Brent, MS, JD, RN, Nurse.com's legal information columnist, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist.
As a nurse working in the community, whether in a school setting, working with the elderly or doing well-baby visits, one of your essential obligations, both ethically and legally, is to maintain the confidentiality and privacy of your patients’ information.
The legal foundation for this obligation rests with state and federal confidentiality and privacy statutes and regulations, your state’s nurse practice act and rules and nursing codes of ethics.
You may wonder what the difference is between confidentiality and privacy. Confidentiality protects the patient’s sharing of information with a nurse without fear that it will be shared with others who are not involved in the patient’s care. For the patient, key principles of confidentiality include trust and a willingness to confide in the nurse. When information is shared without the patient’s consent, a breach of patient confidentiality occurs.
Privacy, in contrast, protects a patient’s right to be free from unreasonable intrusions into his private affairs. It has often been characterized as the “right to be left alone,” according to The Law of Torts (2nd Edition. Volume 3). Although there are several types of invasions of privacy, nurses are most often involved in invading a patient’s privacy by either specifically intruding on the patient’s private affairs (for example, when others observe the care of the patient without the patient’s consent) and the disclosure of private facts about the patient to the public (for example, using a patient’s name, diagnosis and treatment at a seminar).
The basic principle of confidentiality and privacy is that no information can be shared by a nurse about a patient unless his consent is given to do so. The rights of patient confidentiality and privacy are not absolute however.
Your liability for reporting in good faith that any of the above situations are taking place with one of your patients or someone in the patient’s family is nonexistent, as the laws provide you with immunity from suit. In short, there is no breach of patient confidentiality or an invasion of privacy when making a report under these situations.
Knowing your obligations to your patients in relation to maintaining confidentiality and privacy of the information surrounding their care is essential. When you encounter a situation where you are unsure of what and whether you should disclose patient information, seek advice from those you know can help you. Those people include your nurse manager, your agency administrator, your school nurse consultant and/or a nurse attorney or attorney of your choice.
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The basic principle of confidentiality and privacy is that no information can be shared by a nurse about a patient unless his consent is given to do so.”
— Nancy Brent, RN
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Exceptions
Certain situations override those rights and consent is not necessary. One such situation is when the nurse reasonably suspects child abuse and/or neglect is occurring with a child, whether the child is the nurse’s patient or perhaps a child in the patient’s family. As a mandated reporter under most state laws, you must report a reasonable suspicion that a minor — usually defined as under age 18 — is a victim of abuse or neglect. The definition of those terms may vary from state to state but include physical abuse, mental abuse, sexual abuse and not being provided necessary medical treatments and medications. A second exception applies to the elderly in the community. Mistreatment of the elderly includes many of the same situations seen with abuse and neglect of children. It also includes financial exploitation.
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Protective services for the elderly exist in some form in all states throughout the U.S. under Title XX of the Social Security Act. Termed “Adult Protective Services” or a similar title, these programs coordinate services for at-risk elders and define powers of state and local agencies to intervene to protect the elderly in the community.
Some states have passed mandatory reporting by nurses when there is a reasonable belief that the mistreatment of an elderly person is occurring.
Others have passed voluntary reporting statutes. If the situation reported warrants it, the application of the state’s criminal laws prohibiting neglect and abuse of the elderly allows for specific punishment for the perpetrator also occurs.
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Liability
If you provide care for clients who are being treated for a mental or psychological problem, exceptions to their rights of confidentiality and privacy include when the client is believed, after a careful evaluation, to be an immediate danger to himself or others or when a nurse therapist believes it is necessary to initiate commitment proceedings.
These exceptions, and others, exist to ensure that those who are vulnerable or are not able to control their behavior due to an emotional condition get the help they need as soon as possible. Interventions include placing an abused or neglected child in a foster home or with relatives, providing in-home support for the abused elderly person, if possible, and admitting the patient with an emotional problem to an in-patient facility for treatment.
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Nancy-Brent
By Nancy J. Brent
MS, JD, RN Legal information columnist and attorney
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