Ethics, Documentation and Public Health Nursing
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Ethics, Documentation and Public Health Nursing
- 1. ETHICS, DOCUMENTATION and PUBLIC HEALTH NURSING NURSI Department of Public Health April 13, 2012 By John R. Wible, General Counsel (Retired) Alabama Department of Public Health
- 2. An Ethical Person • Are you an ethical person? • From where or whom did you learn your ethical principles? – Hint: “Yo Mama” • “All I Ever Needed to Know, I learned in Kindergarten” • Role of Supervisor as example John R. Wible, 2012 2
- 3. The Pareto Principle • The “80-20 Rule” revisited • 10% basically ethical • 10% basically unethical or “aethical” • 80% wandering in the middle • The ethical job of the manager • Differentiate the animals • Lead the sheep in the right way John R. Wible, 2012 3
- 4. John’s Five Action Principles • To tell the truth, the whole truth and nothing but the truth • “We’ll Sing in the Sunshine” • Casper the Friendly Ghost • It’s not about me • The “Nike Principle.” John R. Wible, 2012 4
- 5. Sources of Personal Ethical Principles • The Ancient Greeks • Religious teachings • Cultural teachings -American Historical Documents – Declaration of Independence – United States Constitution John R. Wible, 2012 5
- 6. Socrates, Plato, Aristotle; Greeks L:Plato and Aristotle by Raphael R:Raphael’s Socrates • Socrates – “know thyself” • Plato – human well-being, the highest aim of moral thought and conduct • Aristotle – apply what we know in social settings John R. Wible, 2012 6
- 7. Religious Ethical Principles John R. Wible, 2012 7
- 8. American Historical Documents • Declaration of Independence • United States Constitution 1776 John R. Wible, 2012 8
- 9. Declaration of Independence • Set forth the “self evident truths” such as “equality” • Established an ethical basis for independence • What Locke applied to individuals, Jefferson applied to a people – John Adams • Did not address African slavery John R. Wible, 2012 9
- 10. Constitutional Principles • “We, the People” – social contract based in personal autonomy • “Establish justice” – – Equity – Equality – Fair process • “Insure Domestic Tranquility” – peace • “Promote the General Welfare” John R. Wible, 2012 10
- 11. Professional Ethics • Hippocratic Oath and Medical Ethics • Augustine’s “Just War” • Nursing Ethics • The Public Health Code of Ethics • Public Officer/Employee Ethics Laws John R. Wible, 2012 11
- 12. Utilitarianism vs. Egalitarianism • Jeremy Bentham’s theory of utilitarianism what is right or good based on whether the consequences will be good • Immanuel Kant’s egalitarianism theory focuses on non- consequentially based notions of good - deciding what is right or good is based on meeting duties and obligations • These contradistinguished ideas will clash over and over ADPH, 2012 12
- 13. Oath of Hippocrates – Medical Ethics • “Primum non nocere” – first do no harm • Always look to the good of the patient • Place a high value on human life • Perform only within one’s training and skill • Refrain from improper relations with patient • Maintain patient’s secrets inviolate • Do not violate community laws or morals John R. Wible, 2012 13
- 14. Nursing’s Primary Ethical Principles • Respect for autonomy • Non-malfeasance • Beneficence • Justice John R. Wible, 2012 14
- 15. Respect for Persons/Autonomy • People are treated as autonomous agents • Protection for those of diminished capacity • Informed consent defined • Period reviews of status of subjects required John R. Wible, 2012 15
- 16. Beneficence • Look out for the “broader good” “Beneficence” – Ball State University of the subject • Do no harm • Does it actually do some good? • Balance the risks against the benefits John R. Wible, 2012 16
- 17. Justice • Applies the allocation of risk or burden to benefit to the subject and to the proposed benefited population – Are these welfare patients, – from a particular socio-economic or ethnic background, – confined populations such as prisoners • Formulations for distributing benefits and burdens: – to each person an equal share, – to each person according to his or her need, – to each person according to societal contributions past and future – to each person according to (perceived) merit John R. Wible, 2012 17
- 18. Secondary Principles • Veracity – duty to tell the truth, the whole truth and nothing but the truth* • Confidentiality – duty to respect privileged information • Fidelity – duty to keep promises * Ask Former Coach Bobby Patrino John R. Wible, 2012 18
- 19. ANA Provision 2.3 Additions • Identify and Avoid conflicts of interest • Duty to collaborate not just get along • Practice within professional boundaries • Don’t further questionable practice – Report it and get guidance • Don’t practice in impaired condition John R. Wible, 2012 19
- 20. Provision 4 Delegation • Make proper delegations, taking responsibility for such delegations • Only delegate to a person capable of carrying out the task whether the pt, family member or subordinate • Educate subordinates who are incapable • Improper delegation = abandonment John R. Wible, 2012 20
- 21. ANA Provision 5 Integrity • Practice with integrity • If you are a conscientious objector, advise supervisor of such • Conscientious objection does not insulate from legal or administrative penalties • If you can’t stand the heat, get out of the kitchen John R. Wible, 2012 21
- 22. Nondiscrimination & Risk • Provide care in a “non-discriminatory manner • There are limits to the amount of personal harm required to risk • Cannot abandon a patient • Personal risk may depend on the individual condition of the nurse • A “sacred duty” – American Nursing Association – December 1994 John R. Wible, 2012 22
- 23. Hierarchy of Obligation Follow your principles Reconcile these or . . . John R. Wible, 2012 23
- 24. Professional Implications - Case • J.L. (17 WF) presents abdominal pain • Mom signs admit forms & Pt. BOR, RN x2 • Temp – 100.8°; U/S ≠ app’s • RN assumes Mom to remain in exam R • JL denies ♂ , day 2 menses • 2 hr delay – lost urine sample; Pelvic - difficult • PG test (-), both informed John R. Wible, 2012 24
- 25. A Public Health Study • Problems most often required relational response not option choice • Goal – optimize the pt. good/ maint. supportive relationship w/other staff • Five consistent “themes” – Rel. w/staff – systems issues – Character of relationships; respect/pt – Putting self at risk John R. Wible, 2012 25
- 26. Public Health Code of Ethics Twelve Principles 1. Addresses causes of disease to prevent. 2. Respects the rights of individuals in the community. 3. Utilizes community input in program development. 4. Advocates “empowerment” of the disenfranchised. 5. Seeks the information needed before acting. 6. Provides the community with information to decide. 7. Acts in a timely manner on the information. 8. A variety of approaches anticipate and respect diversity. 9. Enhance the physical & social environment. 10. Confidentiality - Exceptions must be justified. 11. Professional competence. 12. Work collaboratively to build the public's trust. John R. Wible, 2012 26
- 27. Public Health Values • Reaffirms the Declaration of Human Rights • Humans are inherently social and interdependent, thus the principle of “community” • Community is perpetually balanced as against the rights of the individual • Public trust and transparency John R. Wible, 2012 27
- 28. Public Health Values - 2 • People and their environment are interdependent • Upheld by the science of prevention • Appropriate gathering, use and dispersion of knowledge • The Code requires action John R. Wible, 2012 28
- 29. Public Officer and Employee Ethics laws No public official or public employee shall use or cause to be used his or her official position or office to obtain personal gain for himself or herself, or family member of the public employee or family member of the public official, or any business with which the person is associated unless the use and gain are otherwise specifically authorized by law. Personal gain is achieved when the public official, public employee, or a family member thereof receives, obtains, exerts control over, or otherwise converts to personal use the object constituting such personal gain John R. Wible, 2012 29
- 30. Nature and Scope of Public Ethics Laws • Very narrowly constructed and construed • Contrasted with the broad sweep of professional codes John R. Wible, 2012 30
- 31. Documentation • Baseline patient information • Accessible details in the event litigation occurs • Record of professional accountability • Evaluation of performance and quality of care • Show that standards of care have been met • Provides continuity of care • Substantiates proof of services (so you can bill) John R. Wible, 2012 31
- 32. Good Documentation • Use factual, consistent, accurate, objective and unambiguous patient information • Use your senses to record what you did • Use quotation marks where necessary • Ensure there is a reasoned rationale (evidence) for any decision recorded • Ensure notes are accurately dated, timed, and signed John R. Wible, 2012 32
- 33. More Good Documentation • Write up notes as soon as possible after an event certainly w/in 24 hours • Document any objections to care • Do not include jargon & meaningless phrases John R. Wible, 2012 33
- 34. The “Golden Rule of Documentation” If it ain’t wrote down it didn’t happen! The way it is wrote down is the way it happened regardless of the way it happened! John R. Wible, 2012 34
- 35. Confidentiality and Access to Records John R. Wible, 2012 35
- 36. Imperatives for Protecting PHI • Responsible sharing of some PHI is necessary • All we have to sell is the patient’s trust in us • Individual privacy protections must balance with legitimate community uses of PHI John R. Wible, 2012 36
- 37. Confidentiality- Access to Records • All patient information is strictly confidential • Bad scenarios usually equal bad liability – Mom’s friend at the window – Nurse’s BFF’s boy friend John R. Wible, 2012 37
- 38. Conditions for Release of Information • Prior written consent –Patient –Parent/guardian • Subpoena in accordance with departmental/institutional policy • Otherwise provided by law John R. Wible, 2012 38
- 39. Written Authorization Not Required • Transfer information to physicians, health professionals with contract or other provider arrangements to provide care • Some practitioners require consents to transfer out of abundance of caution John R. Wible, 2012 39
- 40. A Valid Authorization? escription of the info released ame or description of info receiver ame of patient escription if the use of the info John R. Wible, 2012 40 xpiration date or continuous
- 41. Confidentiality - Access to Minor’s Medical Records • If a minor is qualified to consent and signs the “consent for treatment”, only the minor can sign to release the information regarding those services • If the parent/guardian signs the consent for treatment, the parent/guardian or the minor may consent for the release John R. Wible, 2012 41
- 42. Access to Minor’s Medical Records - Parents’ Rights • All information pertaining to a child must be equally available to both parents –However, if the child gave consent for services, neither parent may have access to the records without that child’s consent –Code of Ala, § 30-3-154 John R. Wible, 2012 42
- 43. State Law Penalties Unlawful Release Of Info • Criminal § 13A-11-35 – “Divulging illegally obtained information” • Civil actions (lawsuits v. the RN & Dept.) – Suits for invasion of privacy – Outrage - willful and wanton misconduct – Breach of implied contract • Administrative – Loss of license or of job John R. Wible, 2012 43
- 44. The Privacy Rule: What is Covered? • Protected Health Information (PHI) – Individually-identifiable health information used or disclosed by a covered entity in any form, whether electronically, on paper, or orally – 45 C.F.R. §160.103 John R. Wible, 2012 44
- 45. Uses Without Written Consent • Treatment T • Payment P • Operations O • Where required by law John R. Wible, 2012 45
- 46. Minimum Necessary Rule: “When using or disclosing PHI, a covered entity must make reasonable efforts to limit such information to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request” John R. Wible, 2012 46
- 47. Who Needs to know? • Outside the “need to know” never reveal a patient’s name, what he said, unusual behaviors or conditions or lifestyle • Don’t even discuss patients with co- workers outside the need to know • Never discuss patients outside the workplace unless authorized John R. Wible, 2012 47
- 48. HIPPA - Disclosures Permitted “Minimum” info may be disclosed to: – Public officials – Public health – Law enforcement (LE) – National security & intelligence agencies – Judicial authorities – Researchers – DHR or LE for abuse reporting John R. Wible, 2012 48
- 49. HIPPA Breaches • When there is a breach of protected info, the CE has a duty – To report to or notify clients – To report to HHS and the media if >500 – To mitigate the damage – To examine employees, policies, equipment and facilities to prevent it John R. Wible, 2012 49
- 50. HIPAA Breaches - Penalties • Breach may subject employees and the Department: – To criminal penalties up to $250,000 – To HHS civil penalties or HHE or private lawsuits – To adverse employment action – I.e., . . . . . . . . . . . . . . . . . . . . John R. Wible, 2012 50
- 51. Individual Methods to Avoid Liability • Avoid inappropriate behaviors • Participate in Con-Ed programs • Know and follow policies , protocols, procedures, laws and regulations • Strictly adhere to training protocols • Strictly follow instructions of medical direction and superiors • Document, document, document John R. Wible, 2012 51
- 52. For A Copy of Presentation and a Paper ►See “ETHICS, DOCUMENTATION and PUBLIC HEALTH NURSING” NURSI ►See several presentations & documents also: http://www.slideshare.net/jwible ►Blog: http://www.johnwible.blogspot.com ►Also on Facebook 52 John R. Wible, 2012
Notes de l'éditeur
- An Ethical Person - How many of you think of yourself as an “ethical person.” What’s that based on? Who exceeded the speed limit on the way to this week’s activities? Why, don’t you think speed limits are important? Are you above the law? Why do you think they have speed limits? From where do ethics come? From where do our personal ethics come? ( From “your Mama.”) The poet, Robert Fulghum in All I Ever Needed to Know, I learned in Kindergarten . tells us that our ethical principles are formulated as children at our mother’s knee and in early school. See the poem in the paper. Behaviorists tell us that such is basically true. We learn or inherit our ethical principles, (depending on your viewpoint) when we are young children. By the time we are grown up, they are basically set. They can be changed a bit, but mostly just controlled or coped. However, studies also tell us the employees copy their ethics from those of the supervisor, so that the example of supervisors should be considered.
- Ethical Lines - We each have ethical boundaries, lines that we will not cross or will not cross except with great stress. This is an application of the famous “80-20 Rule. It is said that 20% of people are on the margins. Ten per cent will basically never act in a manner contrary to their ethical principles. Some of these are religious, some are not. The other ten percent of people basically have few ethical principles or their ethical principles are so shaded toward personal gain that effectively, they have no ethical principles when compared to those of society in general. Obviously, many of these are criminals that have or will be imprisoned at some time in their lives. The other 80% of the population are basically principled people who will be more or less easily led to do right or do wrong. This is an application of “Pareto's Principle.” In 1906, Italian economist Vilfredo Pareto created a mathematical formula to describe the unequal distribution of wealth in his country, observing that twenty percent of the people owned eighty percent of the wealth. In the late 1940s, Dr. Joseph M. Juran inaccurately attributed the 80/20 Rule to Pareto, calling it Pareto's Principle. Business Ethics – Business ethicists tell us that the job of a boss or manager is not to teach ethics to his or her employees, but to learn which employees will react ethically in a given situation and try to place employees in a position to succeed rather than to fail.
- "To Tell the Truth, the Whole truth and nothing but the Truth" -We must first study and learn the absolute truths and never vary from them. If we devote our total allegiance to the truth, we will be free to make ethical decisions without fear of making a mistake, (not without making mistakes, but without fear of making mistakes) and without fear of the consequences because, if we have followed the truth, we are not responsible for the consequences, the truth is responsible for the consequences. It is when we do not follow the truth, that we transfer the responsibility for failure to ourselves. “ Absolutely, Mr. Pitney – positively, Mr. Bowes. There is absolute truth. In the planning process, there are certain rules, facts and principles that will have to be applied. It is your duty to know these “truths..” before you start planning. The "No Delta Principle"- Ethical principles do not change no matter the situation, only the application of them. Moral Relativism is a myth. “ Free at last, free at last!” You will know the truth and the truth shall make you free. "Be a Square" - In the storm, we make our decisions by applying the plumb line and level of the truth. "We'll Sing in the Sunshine"- To the extent practicable, we pre-plan disaster decisions in the sunshine. “ Casper the Friendly Ghost,” – Transparency and accountability are twins. “ You’re a pane” - Transparency - To the extent possible, decisions should be made not only in the sunshine temporally, by also visually and influentially as well. “ No Accountability Vacuum.” No matter how well intentioned we start out, if there is an accountability vacuum, we are strongly tempted to cut corners. "It's Not About Me." We need to adopt the idea that life is not about me. That frees us from worrying about ourselves and frees us to make these plumb and square decisions. “ The Nike Principle – We are all familiar with Nike’s famous slogan, “ Just Do It.” Just do it NOW. Resist the urge to procrastinate. Focus, please - The danger with “just doing it, is that one can become like a charging rhinoceros. Truth or Consequences Everything we do has consequences. We must be aware of that fact and must be aware of the “Law of Unintended Consequences.” [ However, perhaps the greater danger for the government planner is not that he or she doesn’t think through the possible consequences, but rather that he so over thinks the consequences that he is paralyzed in the decision-making process. Hence, back to the main bullet – Just Do It!
- Sources of Personal Ethical Principles: Our personal ethics are drawn from our background and the principles we learned at home, be they religious in origin or not. Ancient Greeks Certainly, religious teaches have had an incalculable effects of the ethical conduct of men and women. It probably does an injustice to pass over as summarily as we must in this brief course the plenary teachings of the great religious leaders through the millennia, but we can take a quick snap shot of them. Religious teachings Hindu Buddhism Judaism Christianity Islam Cultural teachings -American Historical Documents Declaration of Independence United States Constitution
- " Socrates, Plato, and Aristotle, who lived in the 5th and 4th centuries BC, are perhaps best known to us, but they were not the first Greeks to considered ethical problems. Earlier poetic literature laid the foundation for their ideas. Plato and Aristotle quoted the most prominent of the earliest ethical philosophers, known as the “Seven Sages.” Each is quoted by a pithily: Solon of Athens - "Nothing in excess" ; Chilon of Sparta - "Know thyself" ; Thales of Miletus - "To bring surety brings ruin" ; Bias of Priene - "Too many workers spoil the work" ; Cleobulus of Lindos - "Moderation is the chief good" ; Pittacus of Mitylene - "Know thine opportunity" ; Periander of Corinth - "Forethought in all things." Socrates’ ethical philosophy is summarized in the phrase, “know thyself.” He taught that in truly knowing yourself, you could really discern what was “good.” Plato argues that human well-being is the highest aim of moral thought and conduct. He believed that these were learned skills and one should study the sciences and philosophy to improve one’s knowledge of “the good.” Aristotle’s approach was more practical, urging that we apply our concepts of courage, justice, temperance and the other virtues in social settings and hone the skills based on the social interplay. What they did for us is to give us not only ethical thought but an ethical framework upon which Western civilization is built. This filters on down to us through 2500 years. Ancient Greece . Our personal ethics are drawn from our background and the principles we learned at home, be they religious in origin or not. We are influenced by our culture in great degree. Ancient Greece birthed Western philosophical ethics. Whitehead stated: "The safest general characterization of the European philosophical tradition is that it consists of a series of footnotes to Plato."
- Our mamas and school teachers got their principles from religious teachings and cultural teachings. Religious teachings, whether Hindu, Buddhism, Judaism, Christianity, or Islam basically taught us the 10 Commandments. In the accompanying paper, I detail the basic teachings of each of these faiths. It is amazing that the heart of the teaching is 10 Commandments made personal by the teachings of Jesus. Religion teaches us: Right living , First do no harm; Do not lie, Do not steal; Do not hoard, All things in Moderation Cleanliness, Contentedness ; Perseverance , Self-study Acknowledge a Higher Being ; Right Speech, Right Actions Right livelihood, Right effort Move to Improve, Right mindfulness, Self Awareness, Right thoughts , No false gods/idols, No false swearing Sabbath keeping , Honor your parents; Do not murder Do not commit adultery Do not steal Do not lie Do not covet Golden Rule Love God/Love man Brotherhood Fidelity/chastity Humility Charity Justice
- Perhaps more so than other peoples, Americans are people of the law and thus influenced by the law. United States Supreme Court Justice Anthony Kennedy recently commented [1] on the founding of the United States. He stated that the British were “puzzled” by the colonists’ desire to be free. In the British mind, the American colonists were “the freest people in the world.” In prophetic and what would become typically American fashion, the colonists answered the puzzlement with a legal document – the Declaration of Independence. [1] CSPAN Television Network – February, 2007.
- American Historical Documents - Declaration of Independence For our purposes here, the Declaration is most important, a statement of morality based upon ethical principles. The phrase that rises above the rest in its moral eloquence is of course, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” What it did and didn’t do: Set forth the “self evident truth” such as “equality” Established an ethical basis for independence What Locke applied to individuals, Jefferson applied to a people – John Adams Did not address African slavery. Jefferson and Franklin’s “self-evident truths” lead us back to the idea of the concept of absolute truth. They tell us that there are many truths but some truths are truths ipso facto. They speak for themselves, everybody knows or should know this. All men are created equal – While this is an ipso facto truth, the Congress as a whole succumbed to the exigencies of sustaining the already-present system of agriculture relying on African slavery. It took another almost 90 years to begin to rectify this failure on their part. Endowed by their creator – an acknowledgement that these truths come from a source outside man himself. Certain inalienable rights –A “right” is an entitlement and here it is an entitlement that is i nalienable , literally “cannot be made foreign.” Life, liberty and the pursuit of happiness – When the Declaration was first published internationally, by happenstance in Ireland, the European press seized upon this phrase to deride the colonists. “What does the pursuit of happiness mean,” they asked? Actually, the phrase was a euphemism for “property.” Original drafts also had the word, “property” but “the pursuit of happiness” was substituted. Later, we will see these principles expanded upon and restated in modern language, where the right to “life” morphs into the right to “human dignity.” For example, the preamble to the Charter of the United Nations “articulates the international community's determination "to reaffirm faith in fundamental human rights, [and] in the dignity and worth of the human person." The Charter, as a binding treaty, pledges member states to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion (arts. 55–56). Another modern restatement of Jefferson’s principles is the principle of “autonomy” found in the Belmont Report, the statement of the rights of subjects of scientific experimentation brought about by the infamous Tuskegee Syphilis Experiment.
- We could say much about the Constitution, but for our purposes here, let’s isolate on the ethical principles it espouses in the preamble quoted supra . We the People of the United States – Certainly, the Framers were an elite group, many were educated and property owners, they were among the best and brightest America had to offer at the time. In stark contrast to the Divine Right of Kings, these men established their concept of government on the principle enunciated by Jefferson in the Declaration – that of the “social contract,” government was with the consent of the governed. That, in and of itself is a principle moving toward “personal autonomy.” [1] As theoretically enticing and noble as this sounds, it may well be stated that the over-riding reason they enunciated this principle of governance was more likely pure practicality. Why would the people of this Continent want to exchange the tyranny of one monarch for the possibility of tyranny by another or by an elite oligarchy. They all knew they were taking their lives into their own hands [2] and having taken this step, from a person standpoint, they could not afford to fail. In other words living by this moral principle – personal choice and autonomy – was beneficial to the society they sought to establish, but also to themselves as individuals. This is a lesson in the practicality of principle for us as public health professions. We should seek to be ethical beings only because of principle but also, because it works. Establish Justice – “What is justice”? Classically, there are a variety of ways to look at it. Some would define "justice" is defined in terms of equality--everyone should get or have the same amount, regardless of how hard they work, or "what they put in." Other people define "justice" in terms of equity--people should get benefits in proportion to what they contributed to producing those benefits. Still other people believe in equity with a bottom "safety-net" level which protects people who, because of misfortune or disability, are unable to work or even help themselves. Still another definition of justice focuses not on output, but on process. Results can be "just" if they were obtained by a "just" or fair process. [3] Which ever definition we choose, it is going to involve some measure of fairness. Insure Domestic Tranquility – Peace. The framers realized that only government can keep the peace. If there is not peace within a society, the society breaks down. One of the events that caused the Convention to be held was the revolt of Massachusetts farmers knows as Shays' Rebellion. Prior to Shay’s Rebellion, it might have been thought that the United States could continue under the Articles of Confederation. However, the idea that there was not peace at home, was perhaps the last straw in helping the framers of the Constitution realize that there had to be a mechanism to preserve the peace at home or the society would fall on itself. [4] The taking up of arms by war veterans revolting against the state government was a shock to the system that had greater ramification than anyone thought. Promote the general Welfare - This, and the next part of the Preamble, are the culmination of everything that came before it - the whole point of having tranquility, justice, and defense was to promote the general welfare - to allow every state and every citizen of those states to benefit from what the government could provide.
- Professional Ethics that Bear Upon Public Health The Hippocratic Oath and Medical Ethics Nursing Ethics The Belmont Report and Institutional Review Boards The Public Health Code of Ethics Public Officer and Employee Ethics Laws Principles: Death may be acceptable , First Do no harm, Put the Patient first, Highest Value on life. Proper relations with the patient , Confidentiality in all things, Follow the law & moral codes. Duty to render care, Balance patient’s interests with caregiver’s interests Do Not discriminate, Do Not abandon the patient, A “Sacred duty” , Respect for the person Beneficence to the person, Justice for the person, Individual rights, Community Empowerment, Use the Information, Timeliness of gathering and use Diversity, Confidentiality of information, Collaboration with peers, Competence A Public trust, Interdependence, Do Not abuse the public position
- Human beings have been thinking and writing about ethics in general, disaster management in particular, and the application of ethical ideas to public policy for as long as we have been thinking and writing. Literally 5,000 years ago, the Egyptians struggled with their idea of maat - by which they meant the appropriate good order of society - and the role of the Pharaoh in preserving or restoring that when the annual Nile floods got out of hand. Later – much later - the English philosopher Jeremy Bentham's claimed that public policy should “maximize the good across the greatest number.” Utilitarian theory, or what is often referred to as consequentialist ethics, assesses what is right or good based on whether the consequences of the actions to be taken will be good. In contradistinction to Bentham’s utilitarian view of the world – and in our case of disasters, Immanuel Kant propounded an egalitarian theory known formally as “deontology,” or duty-based ethics. This theory focuses on non-consequentially based notions of good. In duty-based ethics, deciding what is right or good is based on meeting duties and obligations.
- Who has not heard of the Hippocratic Oath, traditionally taken by physicians as a rite of passage into the profession. It is attributed to its namesake, Hippocrates, the father of medicine, circa. 4th Century B.C. It is postulated that it could have been written by one of his students. First thoughts of the Oath would instinctively lead us to the concept of “first, do no harm,” primum non nocere . It is a common misconception that the phrase primum non nocere , "first, do no harm" is included in the Hippocratic Oath. It is not, but seems to have been derived through Galen from Hippocrates's Epidemics in which he wrote, "Declare the past, diagnose the present, foretell the future; practice these acts. As to diseases, make a habit of two things-to help, or at least to do no harm." What it, or more precisely the modern versions of it do teach are the following principles. “ Primum non nocere” – first do no harm; Always look to the good of the patient; Place a high value on human life; Perform only within one’s training and skill; Refrain from improper relations with patient; Maintain patient’s secrets inviolate; and Do not violate community laws or morals. Medical ethics may be summarized into four principles: non-malfeasance, doing no harm; beneficence, doing what is best for the patient; autonomy, allowing the patient the informed right to choose; and justice, treating everyone alike. But, what about in a disaster? Well, interestingly enough, according to historians, the history of physicians’ responses to contagions is mixed. Galen is reported to have fled from Rome during a plague in 166. Although in the 14th century some physicians stayed and cared for the sick, most responded to the Black Death by fleeing. Defoe indicates in novelistic chronicle about London’s great plague of 1665, that most physicians were called "deserters". In the mid-19th century, nascent professional organizations began to articulate the physician’s ethical obligation to care for the sick during epidemics. The World Health Organization observes that in the past, the AMA code of ethics had “quite explicit” guidance for physicians in particular regarding their duties and obligations during an infectious disease outbreak. For example, for over 100 years the following provision was found in the AMA code of ethics: "when pestilence prevails, it is their (physicians') duty to face the danger, and to continue their labours for the alleviation of suffering, even at the jeopardy of their own lives. Interestingly enough, this particular provision was deleted from the AMA code of ethics over fifty years ago. “It is questionable,” they state, “whether such stringent requirements would be endorsed as an expectation by current professional associations.”
- In the broadest sense, ethics are the principles that guide an individual, group, or profession in conduct. Although nurses do make independent decisions regarding patient care, they are still responsible to the profession as a whole in how those decisions are made. From the earliest concept of nursing, the proper behavior and conduct of a nurse was closely scrutinized. Florence Nightingale wrote of specific issues of conduct and moral behavior. The Nightingale pledge that was composed in 1893 by nursing instructor Lystra Gretter includes the vow "to abstain from whatever is deleterious and mischievous and will not take or knowingly administer any harmful drug." Over the last 100 years, nursing has evolved into a very complex professional field. Nurses are now faced with life and death decisions, sometimes on an hourly basis. Medical care has advanced to the point that new technology with its potential benefit or harm to a patient changes constantly. Although the private conduct of a nurse is no longer controlled by the employer, the effects of that lifestyle on the nurse's ability to think and respond to patients while on duty falls under the code of ethics. The ethical principles provide a foundation for nursing practice. Ethical principles are defined as basis for nurse’s decisions on consideration of consequences and of universal moral principles when making clinical judgments. The most fundamental of these principles is the respect for persons. The primary and basic ethical principles are the following: RESPECT FOR PERSONS According to the American Nurses Association (ANA), the most fundamental principle of professional behavior is the respect for persons. This principle not only applies to the clinical settings but to all life’s situations. This principle emphasizes that all people should treat others as a worthy individual. In nursing practice this principle should be simplified. Thus, respect for persons generally means respecting a client’s autonomy. RESPECT FOR AUTONOMY Respecting a client’s rights, values and choices is synonymous to respecting a person’s autonomy. Informed consent is a method that promotes and respects a person’s autonomy. For a client to make an autonomous decision and action, he or she must be offered enough information and options to make up his or her mind free of coercion or external and internal influences. In clinical settings, this is promoted by proving informed consent to the client. NONMALEFICENCE Non-malfeasance means duty to do no harm. This is promoted by doing the following nursing interventions: Avoiding deliberate harm, risk of harm that occurs during the performance of nursing actions. Considering the degree of risk permissible. Determining whether the use of technological advances provides benefits that outweigh risks. BENEFICENCE Beneficence is doing or active promotion of good. This is done by: Providing health benefits to the clients. Balancing the benefits and risks of harm. Considering how a client can be best helped. Justice is the promotion of equity or fairness in every situation a nurse encounters. The following nursing implications promote justice: Ensuring fair allocation of resources. (example: appropriate staffing or mix of staff to all clients) Determining the order in which clients should be treated. (example: priority treatments for the clients in pain)
- ANA Code of 2001 says: The nurse in all professional relationships practices with compassion and respect for the inherent dignity, worth, and uniqueness of every individual, unrestricted by considerations of social or economic status, personal attributes, or the nature of health problems. The nurse’s primary commitment is to the patient, whether an individual, family, group, or community. The nurse promotes, advocates for, and strives to protect the health, safety, and rights of the patient. Respect for persons is an eagle with two wings. First that persons should be treated as autonomous agents and second that persons with diminished capability for autonomy must be protected by society. Autonomy Autonomy comes from the Latin auto meaning "self" and nomy which means "control." Individuals must be given the rights to assist in their own decision making. This ethical concept has led to the need for informed consent . Sometimes patients' religious or cultural beliefs lead them to make decisions regarding their own care that may seem controversial or even dangerous. However, the concept of autonomy gives them the right to make those decisions unless they are mentally impaired. Autonomous persons have the right to have their opinion consulted in matters that relate to themselves. To make a fair judgment about such decisions, they must be given accurate information and must not be pressured into making decisions.
- Beneficence and non-malfeasance Beneficence means to do good, not harm, to other people. Non-malfeasance is the concept of preventing intentional harm. Both of these ethical concepts relate directly to patient care. In the American Nurses Association Code for Nurses, there is a specific charge to protect patients by specifying that nurses should report unsafe, illegal, or unethical practices by any person. Nurses are often faced with making decisions about extending life with technology, which might not be in the best interest of the patient. Often the concept of weighing potential benefit to the patient against potential harm is used in making these difficult decisions, along with the patient's own stated wishes. Beneficence, pictured here in the statute called “Beneficence” by Daniel Chester French, on the campus of Ball State University, Muncie, Indiana, requires the investigator to not only make sure there is continuing knowing consent, but to look out for the broader good of the subject. The nurse starts with a borrowing from Hippocrates and “does no harm” and then move past this to attempting to maximize the benefit to the individual subject. In other words, this principle requires the nurse not stop at merely doing no harm because, what is considered “harm” can change based on facts learned. A thorny ethical controversy involves questions of whether it is a valid subject of beneficent research where there is little or minimal risk to the subject balanced against substantial benefit to generalizable knowledge or even to identifiable groups.
- Justice The word justice is closely tied with the legal system. However, the word refers to the obligation to be fair to all people. In 2001, healthcare economics have hospitals and other providers stretching their resources to their limits. Economic decisions about healthcare resources have to be made based on the number of patients who would benefit. The potential of rationing care to the frail elderly, poor, and disabled creates an ethical dilemma that is sure to become even more complicated in the future. The Principle of Justice applies to the allocation of risk and benefit the subjects and to the expected served populations. To explain, it can be said that there are several formulations for distributing the benefits and burdens of research: to each person an equal share, to each person according to his or her need, to each person according to societal contributions past and future or to each person according to merit. How about, “from each according to his ability, to each according to his need? Is that a good statement? Karl Marx, 1875.
- The secondary ethical principles that can be incorporated with the primary principles when interpreting ethical issues and making clinical decisions are the following: Veracity – duty to tell the truth, the whole truth and nothing but the truth. Ask former Coach Bobby Patrino who lied to the University of Arkansas. Confidentiality – duty to respect privileged information. We’ll discuss this in documentation Fidelity – duty to keep promises. Fidelity refers to the concept of keeping a commitment. Although the word is more closely used to describe a marital relationship, fidelity is the concept of accountability. What is the nurse's responsibility to his or her patient, employer, society, or government? Privacy and confidentiality are concepts that could be challenged under the concept of fidelity. If a nurse is aware of another healthcare giver who is impaired, but the circumstances are private or confidential, how is the conflict resolved?
- Identify and Avoid conflicts of interest Duty to collaborate not just get along Practice within professional boundaries Don’t further questionable practice Report it and get guidance Don’t practice in impaired condition
- The nurse is responsible and accountable for individual nursing practice and determines the appropriate delegation of tasks consistent with the nurse’s obligation to provide optimum patient care. Make proper delegations, taking responsibility for such delegations. Only delegate to a person capable of carrying out the task, whether the pt, family member or subordinate. Educate subordinates who are not capable of receiving proper delegation. Improper delegation = abandonment
- Practice with integrity If you are a conscientious objector, advise supervisor of such Conscientious objection does not insulate from legal or administrative penalties If you can’t stand the heat, get out of the kitchen
- Likewise, such ethical concerns still linger in the nursing profession. The American Nursing Association issued a paper entitled “Ethics and Human Rights Position Statements: Risk Versus Responsibility in Providing Nursing Care.” In this statement, the American Nursing Association believes that nurses are obligated to care for patients in a “non-discriminatory” manner yet, they say, the Association “recognizes that there may be limits to the personal risk of harm the nurse can be expected to accept as an ethical duty.” The summary of the ethics of the profession on this point goes on to hold that the nurse is not at liberty to abandon those in need of nursing care or at least to assure that alternate care is available unless there are conditions peculiar to this nurse that would limit the nurses ability to perform or place the nurse at peculiar harm not characteristic of any other nurse in the same circumstance. Interpreting the statement as a lawyer would, I suggest it means that a nurse is excused from duty if she has a personal circumstance peculiar to the nurse that would not be common to other nurses similarly situated. That is to say, if this nurse is immuno-compromised, that may be an excuse to go home. However, because there is a risk in a pandemic of infection or even death and the nurse has responsibilities at home, such is not an excuse because any other nurse would be exposed to the same risk of infection and death and most of us have other responsibilities away from the work-place. One could hearken back to the general statement by the Toronto group applicable not only to physicians, but to all health-care providers that in choosing this field, the person has chosen to forfeit some person freedoms of choice in favor of the assumption of a public duty. Again in lawyer terms, the nurse had no duty to perform when the nurse signed up to be a nurse, that was done voluntarily; however, in signing up the nurse has assumed the risk and now is under a duty to perform. The ANA closes this position thusly: “Nursing is a caring profession . . . because of nursing’s long history of standing ready to assist the sick and vulnerable in society, society has come to rely on nursing and to expect that it will rise to the health demands of virtually any occasion.” Yet, there may be limits. Nursing ethics gives us four criteria to help judge when the moral duty to perform falls inextricably upon the nurse. The client is in significant risk of harm . . . if the nurse does not assist. The nurse’s intervention is directly relevant to prevent harm. The nurse’s care will probably prevent harm. . . The benefit the client will gain outweighs any harm the nurse might incur and does not present more than an acceptable risk to the nurse
- Hierarchy of Obligation Follow the law such as the Nurse Practice Act and other program specific laws. Follow Department Policy Follow Non-binding professional Codes of Ethics Follow your principles
- Professional implications Nursing decisions that are made about patient care are not totally independent. Every decision creates a ripple effect and touches someone else in the health care field. One of the purposes of a code of ethics is to help nurses keep perspective and a balanced view regarding decisions. One way to study a code of ethics is to look at a case study. J. L. presents herself to the emergency room with lower right abdominal pain . J. L. is a 17-year-old white female and is accompanied by her mother. J. L.'s mother is a nurse and works in another department of the hospital. The mother signed all of J. L.'s admission paperwork and received the Patient Bill of Rights. Although J. L.'s pain does not seem severe enough for appendicitis , she does have a history of fever for 24 hours and her temperature in the hospital is 100.8°F (38°C). An ultrasound that did not show appendicitis had been done earlier in the day. She was told to report to emergency room if the fever rose. After J. L. reports her symptoms to both a nurse and a physician assistant, she is examined briefly by emergency department physician. The staff assumes that J. L.'s mother wants to stay in the room and does not seek the patient's permission. As a part of her history, J.L. informs them she is not sexually active and is on the second day of her menstrual cycle. The mother can tell by the tone of questioning that the staff does not believe J.L. is still a virgin. After a two-hour delay, including having to repeat the urinalysis because of a lost specimen, the emergency physician decides a pelvic exam needs to be done. The pelvic exam is traumatic for the patient, despite her mother's best efforts to calm her. J. L. is told in a condescending tone that the exam hurts because of her failure to relax. Following the exam, the physician tells J. L. and mother that her blood count is normal, the urinalysis was inconclusive because of menstrual blood, and the patient was uncooperative in giving a catheterized specimen. J. L. and her mother were informed a pregnancy test was done, because the staff have experienced "immaculate conceptions" in their department. The only time that J. L. and her mother had contact with an RN during this time was when she was initially triaged and when the discharge instructions were handed to her mother. J. L. and her mother were sent home with instructions. Her pain subsided without treatment. Although this case study is not one of life and death decision making, there were numerous violations of the patient's rights and of the nursing code of ethics. The patient's right to privacy was violated. It is questionable whether the patient (J. L.) ever saw the Patient's Bill of Rights, since it was given to her mother. J. L. was sexually inactive and a virgin, so the question of nonmaleficence is raised by the traumatic pelvic exam. The question of abandonment is also raised due to lack of nursing attention. If J. L. had asked her mother to leave during the exams, could confidentiality have been breached by the mother the next day by checking the hospital computer for reports? The answer to all of the above questions is yes; areas of nursing code of ethics could have been broken. No one died, but there must be constant reeducation of staff regarding the importance of these issues.
- This qualitative study was designed to explore ethical issues in public health nursing in the Canadian context, and to begin to identify strategies to support ethical practice. Twenty-two public health nurses, 11 in rural and 11 in urban settings, were asked to describe ethical problems they had experienced in the course of their work. These participants most often described situations that required a relational response rather than an active choice between options. Their goal was to optimize the good, while at the same time maintaining a supportive relationship. Analysis revealed five interrelated themes, each with several subthemes: relationships with health care professionals; systems issues; character of relationships; respect for persons; and putting self at risk. It was clear that all aspects of public health nursing have ethical components.
- the Principles of the Ethical Practice of Public Health were developed by Center for Health Leadership and Practice, Public Health Institute and members of the PHLS ethics work group. In its Preamble, this Code sets forth an interesting manner of self-interpretation. The Code states what the drafters believe to be key principles of the ethical practice and then attach a statement listing the key values and beliefs upon which the ethical principles are based. An important underlying definitional understanding is the Code’s affirmation of the World Health Organization's understanding of the term “health.” WHO defines “health” as “a state of complete physical, mental, and social well-being, and not merely the absence of disease or infirmity The Code settles on twelve Principles of the Ethical Practice of Public Health . 1. Addresses fundamental causes of disease, aiming at prevention. 2. Respects the rights of individuals in the community. 3. Utilizes community input to develop policies, programs, and priorities. 4. Advocates for the “empowerment” of the disenfranchised community. 5. Seeks the information needed before acting. 6. Provides the community with information to make decisions. 7. Acts in a timely manner on the information. 8. Incorporates a variety of approaches that anticipate and respect diversity. 9. Implements programs/policies to enhance physical and social environment. 10. Confidentiality - Exceptions must be justified on the basis of the high likelihood of significant harm to the individual or others. 11. Professional competence. 2. Work collaboratively to build the public's trust.
- In its “value and belief section,” the Code reaffirms the Universal Declaration of Human Rights stating that “everyone has the right to a standard of living adequate for the health and well-being of himself and his family.” Other underlying values and beliefs inform their Twelve Principles. “Humans are inherently social and interdependent,” they hold, thus the principle of “community.” Community is perpetually balanced as against the rights of the individual. Therein is a major tension. Another underlying concept is the idea of public trust. Any institution whether public or private will always be hampered in its work if the public doesn’t trust it. Part of that trust is the principle of allowing the community to comment on policy decisions. Likewise, collaboration among not only institutions but with stake-holders is a key element to public health.
- The Code observes that “[p]eople and their physical environment are interdependent. A detriment to one flows backward to the other. These should not be viewed as separate societal goals. The Code also is upheld by the science of prevention and the appropriate gathering, use and dispersion of knowledge. Lastly, the Code requires action . It is axiomatic that all the knowledge in the world is of little value if public health does nothing constructive with it. Public health is active rather than passive, and information is not to be gathered for idle interest. Yet the ability to act is conditioned by available resources and opportunities, and by competing needs. Moreover, the ability to respond to urgent situations depends on having established a mandate to do so through the democratic processes
- The key provision to such ethics is the idea of prohibiting the using of one’s public position for personal gain. See Code of Ala.1975 , § 36-25-5. While some state ethics laws go further, many don’t. The Alabama Ethics law, according to the current State Ethics Commissioner was, in the wake of Watergate, “conceived in a cavalier game of ‘chicken’ between the state Senate and House of Representatives.” Further, Melvin G. Cooper, the first Alabama Ethics Commissioner tells us that in 1970, after the legislature had passed the bill, no one expected the then Governor George C. Wallace to sign it. However, on the day after it was passed by the second house, Governor Wallace did sign it very early in the morning before any of the legislators who had passed it could attempt to persuade him not to. Mr. Cooper later learned from Governor Wallace that “the Guvnuh” was so sure that the legislature would not pass such an act that he stated on the first day of the session that if they did pass such an act, he would sign it “without even reading it.” Mr. Cooper states that Governor Wallace told him privately that such was exactly what he did – or didn’t do as the case was.
- The point of this story from Alabama political lore is that typically public ethics laws are very narrowly crafted for the very good political reason that they apply to the men and women who pass them and if those men and women are not politically careful, they can become their own executioner. Thus, public ethics laws in exquisite contrast to the foregoing Code of Public Health Ethics , deal with unitary issues such as Alabama’s not using your public officer for personal gain. There are many, many practices that could go on in a state government which would violate ethical principles established since the time of Moses but which are not forbidden or even addressed in public ethics laws. Remember that codes of ethics written by professional organization like the American Public Health Association are guiding lights, the violation of which makes you feel bad. However the violation of public ethics laws sends you to jail. One famous Alabama elected official, State Public Service Commission President, Juanita McDaniel, was convicted of using her public office for personal gain by using false expense accounts. She was sentenced to prison in 1980. See the previous note. What the article cited therein doesn’t tell you is that she served her time in the State’s newest city jail in Fort Deposit, population about 1043, and that the doors to her cell were never locked, a l B Otis of Andy Griffith fame. Further, while in jail, she, affectionately known as “’Nita,” was a member in good standing of the Bethel Baptist Church’s ladies’ Sunday School class and regularly hosted class meetings in the kitchen of the new city jail. My Aunt, the late Sue Priester, was a member of that class and tells this story as a part of our family history.
- One of a nurse's greatest fears is realized: you receive a subpoena concerning the care you gave a patient a year ago. Would you be able to remember the details of that patient's care? Nurses have always faced the challenge of reconciling documentation with quality patient care. Some would argue that paperwork interferes with time spent caring for patients. However, with proper documentation on the patient's chart, you would have the information you need to ensure quality care and to defend that care in court, should that be necessary. Effective documentation provides a record demonstrating and giving proof of individualized nursing care and the patient's response to that care (outcome). Documentation provides: Improved quality of care due to increased communication between patient and caregivers; Baseline patient information; Accessible details in the event litigation occurs; Record of professional accountability; Data for evaluation of performance and quality of care; Determination that standards of care have been met; Provides continuity of care Substantiates proof of services (so you can bill)
- Get into the habit of using factual, consistent, accurate, objective and unambiguous patient information; Use your senses to record what you did, such as ‘I heard’, ‘felt’, ‘saw’, and so on; Use quotation marks where necessary, such as when you are recording what has been said to you; Ensure there is a reasoned rationale (evidence) for any decision recorded, for example, denying access to a visit from children; Ensure notes are accurately dated, timed, and signed, with the name printed alongside the entry;
- Write up notes as soon as possible after an event and, by law, within 24 hours, making clear any subsequent alterations or additions; Document any objections you may have to the care that has been given; Do not include jargon, meaningless phrases (for example ‘slept well’), irrelevant speculation, and offensive subjective statements; Write the notes, where possible, with the involvement and understanding of the patient or care-giver.
- Remember the “Golden Rule” of Documentation: “If it ain’t wrote down . . . it didn’t happen; And Wible’s corollary, “the way it is wrote down is the way it happened regardless of the way it happened.”
- Confidentiality and Access to Records
- Improvements in health care and community health require responsible sharing of some PHI. All we have to sell is the patient’s trust in us. Therefore, in the absence of privacy protections, patients and others may avoid some clinical, public health and research interventions to their detriment. However, individual privacy protections must be balanced with legitimate community uses of PHI, i.e., health research and public health concerns. Remember while we serve the patient, we have an over-riding mission to serve society. This differentiates public health nursing from private nursing.
- Remember that all PHI is strictly confidential and should only be shared in accordance with law, rules, procedures, need to know and with the principle of beneficence in mind. Here are some bad scenarios that almost always lead to bad outcomes or liability. Guess who usually gets the blame – the nurse. Mom’s friend at the window Nurse’s BFF’s boy friend
- Under HIPAA and general good practice procedures, the conditions for release of information are prior written consent of the patient, parent/guardian, subpoena in accordance with departmental policy, or otherwise provided by law. However, as with most laws, the “Devil is in the details” and the exceptions are much longer than the original rule.
- A transfer of information to physicians or other health professionals with a contract with, or other provider arrangement with the Department to provide care is an acceptable release of information without a written consent, indeed, without even the patient’s knowledge. But then, the patient has a reasonable expectation that such information would be transferred. Out of an abundance of caution, some practitioners require of us consents to transfer PHI, but that is because of their policy and because their lawyer so advised.
- The components of a valid consent are according to Department policy are: Description of the info to be released Name or description of info receiver Name of patient Description if the use of the info Expiration date or continuous Right of revocation by pt. Notice of possible re-disclosures Signature of pt or representative
- If a minor is legally qualified to consent for services and in fact signs the “consent for treatment”, only the minor can sign to release the medical information regarding those services. If the parent/guardian signs the consent for treatment, the parent/guardian or the minor may consent for the release of medical records.
- An Alabama statue provides that all information, including medical records, pertaining to a child must be equally available to both parents in all types of custody arrangements unless otherwise ordered by a court of law. See Code of Ala , § 30-3-154. However, the statute does not give the parent any more rights to the information as against the minor, it simply make the custodial and non-custodial parent equal.
- There are criminal charges that may be lodged for breach of confidentiality. Section 13A-11-35 provides that “Divulging illegally obtained information” is a misdemeanor offense. Further, Civil actions (lawsuits v. the individual or the Department can be filed for invasion of privacy, the tort of Outrage - willful and wanton misconduct or breach of implied contract. Further, there are administrative penalties under state law that can be brought against an offending employee in the nature of administrative actions such as loss of license or of your job.
- What is covered? Under HIPAA, “Protected Health Information” (PHI) is defined in part, as “Individually-identifiable health information used or disclosed by a covered entity in any form, whether electronically, on paper, or orally.” 45 C.F.R. § 160.103. It may be as little as the name or social security number of the patient and the fact that she is our patient or it may be basically the whole medical record or anything in between. .
- You can use protected health information (PHI) without the patient’s authorization for: Treatment - provision, coordination or management of health care and related services Payment - includes the various activities of health care providers to obtain payment or be reimbursed for their services Operations – administrative, financial, legal, and quality improvement activities that are necessary to support the core functions of treatment and payment Where required by law PHI also does not include: Education records covered by FERPA; Employment records held by a covered entity in its role as employer; and Non-identifiable health information - 45 C.F.R. § 160.103.
- Under HIPAA, regardless of whether or not you may release the information, the amount of information is subject to the “Minimum Necessary” Rule. The “Minimum Necessary Rule” states that when using or disclosing PHI, a covered entity must make reasonable efforts to limit such information to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request. Under HITEC, HHS is supposed to promulgate guidance on what they think the “minimum necessary” is – I can’t wait.
- In addition to the “minimum necessary” Rule, you should only release PHI with the concept of “need to know” in mind. Subject to the exceptions Never reveal a patient’s name, what he said, unusual behaviors or conditions or lifestyle. Don’t even discuss patients with co-workers outside the need to know, never discuss patients outside the workplace unless authorized.
- Permitted disclosures” Disclosure of PHI to “public officials” to lessen the effects of the emergency To law enforcement for their necessary activities. We’ll see more later To national security and intelligence agencies To Public Health authorities To judicial authorities To Researchers To DHR for limited purposes The law enforcement purposes for which PHI may be released without authorization are: Pursuant to process and as otherwise required by law. 45 CFR §164.512(f)(1) For identification and location purposes (limited information only). 45 CFR §164.512(f)(2) In response to request for such information about an individual who is or is suspected to be a victim of a crime. 45 CFR §164.512(f)(3) For purpose of alerting law enforcement official about a suspicious death. 45 CFR §164.512(f)(4) For purpose of reporting evidence of criminal conduct occurring on premises of covered entity. 45 CFR §164.512(f)(5). A provider who is providing care in response to a medical emergency my alert law enforcement regarding information pertaining to crime. 45 CFR §164.512(f) (1) May use or disclose PHI if the use or disclosure: (i)(A) Is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and (B) Is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat; or Is necessary for law enforcement authorities to identify or apprehend an individual The law enforcement purposes for which PHI may be released without authorization are: Pursuant to process and as otherwise required by law. 45 CFR §164.512(f)(1) To alert about a suspicious death When criminal conduct occurs on premises In emergency setting, to alert regarding information pertaining to crime Different situation: Where LE brings a prisoner to you, CE is permitted to disclose all info to LE or prison authority CEs may disclose PHI to authorized federal officials for the conduct of intelligence, counter-intelligence, and other national security activities. If it is national security, we disclose any information they need. It is not subject to the law enforcement limitations. Disclosures to Public Health . The public health exception allows a covered entity to disclose PHI without individual authorization to a “public health authority that is authorized by law to collect and receive such information for the purpose of preventing and … controlling disease, injury, or disability, including… reporting of disease… and the conduct of public health surveillance….” RNs have a duty to report cases or suspected cases of elder or child abuse or domestic violence. Examples of specific public health-based exceptions include disclosures About victims of abuse, neglect, or domestic violence To prevent serious threats to persons or the public. CE may disclose as much PHI as necessary
- When complaints or notice of breaches are received by privacy officer, the agency has a duty to: Investigate - Mitigate, Resolve, Respond, Document activities relating to the investigation, mitigation and response in HIPAA Log. Notification – we might have to notify the patient that his or her information has been compromised. Reporting - No report to HHS is required, though the process is subject to compliance audit. Remediation -The agency’s response may require amendment of privacy policies and procedures. Discipline - Response may require employee sanctions for employee breaches. HHS will look on an audit to see if this was followed up. See 45 CFR § 164.530(e-g). ADPH defines this in Policy 03-03. Criminal Penalties - A person’s knowing use or disclosure of PHI in violation of HIPAA may result in criminal penalties of up to $50,000 in fines and one year in prison. Uses or disclosures made under false pretenses may result in criminal penalties of up to $100,000 in fines and 5 years in prison. HIPAA Privacy Rule violations committed with intent to sell, transfer or use PHI for commercial or personal gain or malicious harm are punishable by a fine not to exceed $250,000 and/or 10 years in prison. A recent case in the Northwest has a hospital employee in big trouble. Civil Causes of Action - Does a violation of the HIPAA Privacy Rule create a civil cause of action? Yes. And a failure to follow HIPAA privacy procedures may become the “standard of care” in common law breach of privacy actions under state law.
- When complaints or notice of breaches are received by privacy officer, the agency has a duty to: Investigate - Mitigate, Resolve, Respond, Document activities relating to the investigation, mitigation and response in HIPAA Log. Notification – we might have to notify the patient that his or her information has been compromised. Reporting - No report to HHS is required, though the process is subject to compliance audit. Remediation -The agency’s response may require amendment of privacy policies and procedures. Discipline - Response may require employee sanctions for employee breaches. HHS will look on an audit to see if this was followed up. See 45 CFR § 164.530(e-g). ADPH defines this in Policy 03-03. Criminal Penalties - A person’s knowing use or disclosure of PHI in violation of HIPAA may result in criminal penalties of up to $50,000 in fines and one year in prison. Uses or disclosures made under false pretenses may result in criminal penalties of up to $100,000 in fines and 5 years in prison. HIPAA Privacy Rule violations committed with intent to sell, transfer or use PHI for commercial or personal gain or malicious harm are punishable by a fine not to exceed $250,000 and/or 10 years in prison. A recent case in the Northwest has a hospital employee in big trouble. Civil Causes of Action - Does a violation of the HIPAA Privacy Rule create a federal civil cause of action? Yes, and a failure to follow HIPAA privacy procedures may become the “standard of care” in common law breach of privacy actions under state law as well. A breach may subject employees and the Department: to criminal penalties up to $250,000; to HHS civil penalties or HHE or private lawsuits, and/or “adverse employment action.” You don’t want to know what that is.
- Common sense methods to avoid inappropriate behaviors include: Participate in QA/QI and Con-Ed programs Know and follow policies , protocols, procedures, laws and regulations Strictly adhere to training protocols Strictly follow instructions of medical direction and superiors; and Document, document, document.
- See “Alabama’s Immigration Law, Impacts of Health and Social Care” a download on Slideshare 7 See several presentations & documents also: http://www.slideshare.net/jwible Blog : http://www.johnwible.blogspot.com Also on Facebook