Medical Confidentiality: Off-Duty Threats
I received an interesting question – for today’s burning question: If an EMS crew is called to the home of an off-duty firefighter and she is drunk, suicidal and threatening to harm her husband, can the crew inform a supervisor? If she goes so far as to threaten the crew, can the crew disclose the threat to the police and a supervisor?
Answer: wow… you guys are killing me. The obvious issue that arises in this situation is that of medical confidentiality. There may also be a duty to report law for domestic abuse that may be triggered – based on state law.
Both HIPAA and state medical confidentiality laws apply to information that is exchanged between a provider and patient during the course of medical care and treatment. But not every piece of information that is exchanged between a provider and a patient is confidential. As I watch the World Series – an example came to me: if a medic asks a patient during the course of treatment for the score in the game, the answer is not confidential. It has nothing to do with medical treatment.
The problem is…. if a medic asks a patient a simple question such as what day is it…. for the purpose of assessing the patient’s orientation – the fact the patient knew (or did not know) the answer would be protected.
The observation of a patient’s overt behavior can be considered to be protected information, particularly when the behavior is embarrassing (loss of bladder control, bowel movement, etc.). When it comes to the observation of a patient making threats toward third parties, an argument can be made that the threats have nothing to do with medical treatment and thus are not protected. The argument can also be made that the medics have a “qualified privilege” to report their observations to law enforcement and their superiors that supersedes any rights to confidentiality the patient may otherwise have.
What makes this a VERY VERY close call… is that the patient’s behavior – including the threats – can be characterized as symptoms of underlying psychotic issues.
On balance, I would think the medics would have a qualified privilege to inform the police and their supervisors. It would be a very narrow privilege – because certainly if one of the medics discussed what happened publically or on Facebook it would violate confidentiality.
I would also reach out to the other fire lawyers out there for their considered opinion.
“When it comes to the observation of a patient making threats toward third parties, an argument can be made that the threats have nothing to do with medical treatment and thus are not protected.”
Wouldn’t that be covered under Tarasoff v Regents of the University of California?
My first question is were any children present?
If kids were there, then I see a report to the child abuse hotline for possible child abuse and/or neglect. Ok. I am taking the easy way out, but my forte is domestic relations.
Clearly, if she threaten or acted in a threatening manner towards to EMS crew then they could file a police report. That report should be excluded by medical confidentiality laws. They then could report to management that there was a police report filed relative to an incident to which they responded.
Otherwise, nothing really is clear. It is a close one. I am not sure of the correct answer. Factors I would consider include what was the exact nature of the threats. Did they observe her inside or outside her house? If she acting this way on her lawn it is different than if she is tucked away in a second floor bedroom.
I am going to approach this from a practical and not entirely legal stand point. First, if a patient is suicidal, the police should be called. In Ohio,law enforcement can order the transport of such patients to hospitals for observation. Information contained in a police report is not protected by HIPAA. The employer can simply be referred to the PD for information. Additionally, I assume that if the patient employee is hospitalized, at some point the employer is going to find out. The length of stay may influence the extent the employee has to voluntarily provide information (the number of shifts missed, etc). The real issue I believe will be what is the intent of the fellow employees-to get the patient employee assistance and to protect other employees or is it to embarass and blab about the patient? A jury will likely protect the former scenario but not the latter.
Oh boy. The report that I give to the ER, and is then forwarded through channels ultimately ending up in the billing department of a third party is confidential, but that report is reviewed by somebody at headquarters, and the name is in big letters at the top of the report, and the particulars of the event written in the narrative. If my supervisor is made aware of this case, he or she now holds the ball.
I do not have the legal responsibility to report suspected domestic abuse (I think) other than to call the police, and let them handle the legalities. Ethically, I just might put that report on top of all the others, and make sure the right people get to it first.
Cowardly? You bet.
Breaking this down into the essential elements:
Response to an intoxicated & possibly suicidal individual threatening her husband with a potential threat to the crew would require a response from the local police to provide a level of protection to all parties including the intoxicated individual. As soon as the situation becomes stable, this individual becomes your patient and all of the protections related to HIPAA and medical information confidentiality comes into play.
Your patient deserves those protections against disclosure as it deals with her medical condition which may include alcoholism and some mental health issues. Disclosure should be made only to the receiving hospital medical staff.
Can the cops be told of her medical issues? My answer is NO, they are not the receiving and treating individuals and their interests should be the threat of violence against the husband and crew and a possible Domestic Violence charge.
Next is the fact that she is an off duty firefighter. What are your obligations of disclosure to the Fire Chief or HR. It becomes an issue of conduct off duty due to a medical condition, her mental health and probable substance abuse. I would be extremely careful in disclosing any medical information to the Chief or HR but would feel comfortable in recommending an advisory to the Fire Chief or HR that this individual had an incident that needs follow-up. Your police responders can provide the potential criminal or DV information to the Fire Chief or HR as quite possibly after her trip to the hospital she may end up in jail under a DV charge.
Sometimes the Police Chief and the Fire Chief will have a conversation about this firefighter and start the ball rolling.
This brings into the discussion an Employee Assistance Program referral for counseling under the departments program and all of that information is quite confidential. EAP could be a solution to the long term issues and again those discussions are all covered under HIPAA or medical confidentiality.
Finally, the level of confidentially also involves the crew in “coffee table talk” about another crew member. There should be NO discussion among the crews at any time – ever.
As you can tell, there is no easy answer to this conundrum.
Thanks Joe
I had never heard of the Tarasoff case – but it has an interesting (and common sense) holding that a provider can alert authorities and individuals who are the target of a threat. It is a California case and I assume is the law in California but may not carry much weight outside of California.
In addition – from our scenerio, the victim of the threats is already aware of the threats (ie. the threats were made to the target, not to a provider). Our concern is can we inform the police and our supervisors (the patient’s employer). The reasoning used in Tarasoff would suggest we should be able to – but the holding does no go that far.
2 quick questions.
Would it be possible to separate the person as a provider (who would have to follow privacy laws and rules) and the person as an individual? The person, as an individual, should come across the information when warned, which would absolve the provide from any duty to protect the fact that a threat occurred.
Second, what good is being warned if an individual can’t take action on the warning, including seeking protection through the legal system?
Joe
For part 1, I am not sure I would characterize it the way you have – but yes – if a provider is threatened they may report the threat to the police without violating confidentiality.
For part 2 – the person who is warned (the target of the threats) would certainly be able to take precautions. If a breach of confidentiality occurs, it occurs when the provider tells the target of the threat. The target would be under no obligation to maintain the confidence.
I suppose one of the challenges of the scenario that was posed is that the target of the threats was a provider. Tarasoff involved a threat made to a provider about a third party target.
Going only off of HIPAA rules, the first thing that needs to be determined is if the EMS service is a covered entity. If a service does not bill electronically (if you bill Medicare, the answer is “yes, you bill electronically.” Also, electronic billing and using ePCRs are not the same thing.), then they are not a covered entity, and do not have to follow the HIPAA privacy rule.
Second,
“Can the cops be told of her medical issues? My answer is NO, they are not the receiving and treating individuals and their interests should be the threat of violence against the husband and crew and a possible Domestic Violence charge.”
One of the many exceptions to the HIPAA privacy rule can be found under permitted uses (does not require permission), and this would fall under many of the uses for “public interest and benefit activities.” Namely, it could be “required by law” and “law enforcement purposes,” specifically “when a covered entity believes that protected health information is evidence of a crime that occurred on its premises; and (6) by a covered health care provider in a medical emergency not occurring on its premises, when necessary to inform law enforcement about the commission and nature of a crime, the location of the crime or crime victims, and the perpetrator of the crime.”
If you threaten someone to the point where they have a legitimate belief that the patient is capable of causing the crew or another person bodily harm, then there is a legitimate belief that a crime has been committed, and thus shouldn’t be considered a HIPAA violation.
Source for HIPAA quotes: http://www.hhs.gov/ocr/privacy/hipaa/understanding/summary/index.html
Joe
My experience has been that state law medical confidentiality is usually broader than HIPAA. The reason everyone knows about HIPAA is because of the manadatory notice requirements, training of medical office staff, etc.
Also many folks who deal with HIPAA believe it actually REDUCED the level of medical confidentiality that we all had so that insurance companies could get access to the info they needed to promptly process claims. I am not taking sides in that dispute but there are plenty of web sites out there that discuss it.
So I go back to state law medical confidentiality issues. That is probably what John is referring to as well (FYI – he is an attorney and a practicing PA).
Curt and Joe:
Amen to Curt’s comments. Many states confidentiality issues may be more stringent than HIPAA. Joe is right when he talks about covered entities but what we are starting to see is problems with the sharing of information among each other or other public safety entities. HIPAA is a complex issue when it comes to covered or not covered entities and the sharing of medical information. I believe that it is good policy operate from a position that ALL medical information is protected and to keep medical information shared on a short leash even to include the cops. In Washington State there is a State Law (RCW 18.73.270) that allows EMS and Cops to share medical information on crime scene ONLY if it relevant to a medical situation that may require police intervention like DUI or DV. After the patient is transported to the hospital, the Police have to request medical information from the fire department and at times the patient also needs to sign a release of medical information to the police. This is a volatile issue especially with the sharing of medical information between providers, other employees, employers and police. My best practice is the less said, the better.