Legal / Ethics

When patient privacy endangers staff

A few weeks ago, the conversation in my ethics class turned to patient privacy. In general, the students were all for it. But when they began swapping stories about everything from HIV-positive patients to violent psychiatric patients, their opinions changed: They were all against it.
At my request, the students put their stories in writing, and we analyzed them in class. Here’s one of the stories.

Around midnight, a 29-year-old man with diagnoses of bipolar disorder, substance use disorder, and antisocial personality disorder arrived at our emergency department (ED) for a 72-hour involuntary placement for psychiatric assessment under the Baker Act. Our ED personnel shuttled the patient to the Psychiatric Assessment—Referral office with these comments: “Get rid of this guy fast. He’s trouble.” “This guy abuses the system.” “He has assaulted several healthcare workers.” “He needs constant intervention to maintain the safety of staff and other patients.”

In the Psychiatric Assessment-Referral office of our Baker Act-receiving facility, a registered nurse specializing in mental health assesses patients and discusses them with the on-call psychiatrist, who determines the level of care needed and the patient’s placement. I am that intake nurse. Our office also keeps a “do not admit” list, and this patient was on it. Some of the nurses on our own adult psych unit told me that during a previous admission, he assaulted a nurse. He was jailed and convicted of the assault. The nurse suffered knee damage and still has a restraining order against him.

Nurse’s assessment
When I assessed him, he was generally calm and cooperative, aside from his persistent, aggressive requests to smoke and several attempts to leave the office without an escort to do so. Both the psychiatrist on call and I were new to the facility, so we didn’t have any firsthand knowledge of the patient’s history and treatment. Before calling the psychiatrist, I called some other psych units in the area and found that this patient had been discharged the day before from a facility 70 miles away—and that he was not welcome back because of his aggressive behavior.

I also learned that our local community mental health facility would not accept a referral because this patient had assaulted personnel there. A colleague at the community center told me that the patient “burned all his bridges in a 100-mile radius.”Making a decision
Based on this information, should I call the psychiatrist and say, “This guy is bad news, and the unit will have your head and mine if we admit him”? Or should I say, “This patient is suicidal, and he has a plan to kill himself. We have the closest bed”? And what are the ethical implications of a “do not admit” list, particularly when hospital personnel know a patient’s situation and have not implemented options that might break his cycle of use and abuse of acute services?

Author’s commentary
To help highlight the ethical problems, we decided to start with the most obvious legal problem: It is illegal, and unethical, for a hospital to have a “do not admit” list. At a minimum, the risk manager should be told about the list as soon as possible. Moreover, a Baker Act facility voluntarily assumes a duty to admit patients who meet Baker Act criteria. If state authorities knew that the hospital maintained such a list, the hospital would lose its status as a Baker Act facility. Moreover, the nurse is asking about how she should present information to the physician. Certainly, how things are phrased can have an impact on another’s judgment, but the alternatives the nurse expresses are designed to influence. The nurse should present the physician with her assessment and the patient’s past history at that facility, including the existence of the restraining order. In so far as humanly possible, the relevant information should be provided objectively.


Asking the right questions
The nurse’s first duty is to determine if the patient meets the criteria for a Baker Act admission. If the patient does meet the criteria, the only suitable questions have to do with how, when, and where the patient will be cared for; whether or not he will be admitted has already been determined.

Conclusion first, assessment second?
The ED staff’s comments about the patient before her assessment tainted the nurse’s conclusions. Certainly, a patient who knows the provisions of the Baker Act could “game” the system by pretending to be suicidal. But is it more likely that this nurse based her conclusion on an initial assessment or on the ED staff’s comments? A few taps on the computer provided the nurse with information about his past admissions. But she also called the inpatient adult psych unit. Would she have made that call—and been told of an attack on a nurse and a nurse’s restraining order—if she hadn’t heard the ED staff’s comments? Is the patient scamming the system, or is the system running roughshod over the patient?

If a restraining order actually exists, the patient presents the hospital with logistical problems, yet the nurse doesn’t call the administrator on call to alert him or to verify the information she has uncovered.

Instead, she undertakes a “fact-finding” mission, and uncovers the opinion that the patient is not welcome anywhere and has burned all his bridges. Still, she doesn’t call either the psychiatrist on call or the administrator on call—the two people she should be calling to discuss preparations for holding this man for even a short time.

Violating HIPAA
The nurse’s calls to area psych units, the mental health facility, and the facility that discharged the patient the day before all violate the provisions of the Health Information Portability and Accountability Act (HIPAA). Why? Although the patient’s history of violence is pertinent to his admission, the nurse already knows, or should know if she read the discharge summary, that the patient has a history of violence. She already knows that precautions need to be taken to protect the patient and personnel. Plus, she has a boatload of unsolicited (and unsubstantiated) comments from ED and inpatient psych unit personnel to alert her to the risk of violence.

If discovered, these violations of patient confidentiality could result in a series of HIPAA-generated fines for the facility. The nurse could lose her nursing license. The nurse’s disregard for patient confidentiality is also a violation of the American Nurses Association’s (ANA) “Code for Nurses,” and, depending on the state, it could be a violation of the Nurse Practice Act.
One ethical precept that serves professionals well is: Never do privately what you would not want known publicly.

Ethical perspective
Whether or not this patient gamed his way into the ED by lying to police officers, the Baker Act requires an assessment within 72 hours. The law also demands that treatment be contingent upon the patient’s consent, unless the patient is a clear and present danger to self or others. While staff question the validity of his danger to himself, there are documented instancesstances of his danger to others, notably hospital staff. Thus, a well-trained psychiatric aide should be readily available in case the “persistent, aggressive requests to smoke and several attempts to leave the office” turn into more physically aggressive behavior.

Because we can’t know for sure that the patient is gaming the system, we must assume that he is suicidal. Ethically, this is a key point. Treating such a person involuntarily is a de facto violation of the right to bodily integrity, a right generally upheld by the law. Only when the danger is clear and present is it permissible to ignore this right. From an ethical perspective, the law permitting involuntary treatment of suicidal patients is murky: The legal assumption is that anyone who wants to commit suicide is at least temporarily incompetent. The ethical standard is higher: An assumption of incompetence would have to be supported by much more data. And, an assumption that a patient is gaming the system is, simply put, unethical.

Understanding human rights
A legal right is a permission granted and secured by law. It may or may not protect a human right. A human right is derived from fundamental, universal human needs, and its exercise is an option that may not be obstructed by others.

A human right is generally considered to be above the law because it’s based on what humans need to be human. As with all rights, human rights are limited by the rights of others (which is why the patient could be forcefully medicated or restrained if he presented a danger to others). Patients do have rights, but so do nurses and other clinical personnel. They have a right to bodily integrity and to a safe working environment.

Clinically, if not legally, a patient’s history of violence is the best predictor of future violence. With this patient, certain steps must be taken before providing care:

• Precautions must be taken to protect personnel from harm.
• Hospital administration must be notified, so the administrator on call can notify the nurse who has the restraining order.
• The psychiatrist on call must be notified immediately and consulted on the proper assessment and treatment of this patient.

Knowing your role
On the surface, this case seems to present a conflict of rights. Workers have a right to a safe work environment. Patients have a right to treatment, to privacy, and to humane and respectful care. But another ethical and legal issue simmering under the surface involves common, prejudicial, and perhaps illegal communications among healthcare personnel. The decision on whether this patient abuses the system should not be made by the clinicians caring for the patient. Their role is to care for the patient and be an advocate for him. There are plenty of people—case managers, insurance executives, legislators, financial experts, and even voters—who are charged with protecting the system. Healthcare professionals are responsible for the efficient, appropriate use of resources, not for rationing resources based on their own opinions.

Need for education
The scope of the problem suggests a widespread need for education. Neither nurses nor physicians can make decisions in a vacuum. Communication and collaboration are essential. In this case, there was communication, but it wasn’t informed. The intake nurse, the ED personnel, the nurses in the inpatient adult psych unit, and those in the institutions contacted by the intake nurse all communicated with a total disregard for HIPAA requirements and ethical standards.

Selected references
American Nurses Association. Code for Nurses with Interpretive Statements (Code for Nurses). Available at: http://nursingworld.org/MainMenuCategories/EthicsStandards/CodeofEthicsforNurses/Code-of-Ethics-For-Nurses.html. Accessed November 14, 2006.

Baker Act reform. Available at: www.bakeractreform.com. Accessed November 14, 2006.
Curtin LL, Flaherty MJ. Nursing Ethics: Theories and Pragmatics. Upper Saddle River, N.J: Prentice Hall; 1982:104.

Frequently asked questions about reform of Florida’s Baker Act. Available at: www.psychlaws.org/PressRoom/faqonbakeract.htm. Accessed November 14, 2006.

The Health Information Portability and Accountability Act. Available at: http://www.hhs.gov/ocr/hipaa/privacy.html. Accessed November 14, 2006.

Molbert B, Beck JC. Assessing violence in patients: legal implications. Available at: http://www.psychiatrictimes.com/article/showArticle.jhtml?articleId=175802294. Accessed November 14, 2006.

U.S.: Number of mentally ill in prisons quadrupled. Human Rights News. September 6, 2006. Available at: http://hrw.org/english/docs/2006/09/06/usdom14137.htm. Accessed November 14, 2006.

Leah Curtin, DSc(h), RN, FAAN, a Clinical Professor of Nursing at the University of Cincinnati College of Nursing in Ohio, was the Editor-in-Chief of Nursing Management for 20 years. She also is Managing Partner of Metier Consultants, and the Director of Cross Country Education’s Nurse Manager Boot Camp.

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