As our loved ones age, our involvement in their affairs increases as we assist them with their daily lives. This is especially true when a medical crisis arises. Most of us are familiar with “HIPAA”, the Health Insurance Portability and Accountability Act, a law which protects our privacy when it comes to our health. But how does this law balance our loved ones’ right to privacy with our need to help them with their health care decisions as they age, particularly when they cannot make health care decisions on their own?
While the HIPAA Privacy Rule does not require a health care provider to share information with family members or friends (unless that person is a “personal representative” such as a guardian or health care agent appointed under a Health Care Proxy), HIPAA permits medical care providers to disclose information to family members and others involved in the patient's health care in limited circumstances. The question of whether such information should be disclosed to a family member is a matter of professional discretion by the health care provider.
If the patient does not object, a physician may talk with the friend or family member who accompanies the patient to the hospital or doctor appointment. Thus, the medical provider's professional judgment as to what he or she infers to be the patient's desired level of access to information to the friend or family member becomes a key part in determining which information may or may not be disclosed.
Consider the following examples:
- A son drives his mother to her doctor appointment. The mother asks the son to come into the doctor’s room with her. The doctor may discuss the mother’s medical information and treatment with the son in this case, as it may be assumed that the mother consents to this disclosure by virtue of having invited the son into the doctor’s room.
- A medical professional may give information about a patient's mobility limitations to a friend who is driving the patient home from the hospital. The medical professional may infer that the patient would not object since the patient has enlisted that friend’s services in getting home from the hospital.
In instances when the patient is not present or is unable to consent, the health care provider may disclose the information so long as: (i) the provider believes it is in the patient’s best interest to make the disclosure; (ii) the patient has not otherwise objected to such disclosures; and (iii) the provider limits the information disclosed to that which is relevant to the family member or other person’s involvement in the patient’s health care.
Additionally, New York’s Family Health Care Decisions Act (FHCDA) provides that a person designated as a patient’s “Surrogate” may make decisions regarding the patient’s health care in the event he or she is unable to make decisions on his or her own behalf. As the Surrogate will have the authority to make all health care treatment decisions, he or she must be provided access to the patient's medical records and information regarding medical conditions and prognoses. Additionally, the Surrogate becomes the patient's "Personal Representative" under HIPAA, which entitles the Surrogate to the same rights as the patient as it relates to disclosure of medical records and information.
To keep decision making power within your control, execute a Health Care Proxy and Living Will. By signing a Health Care Proxy, you name an agent to make health care decisions and communicate your wishes to health care providers in the event you are unable to do so. In a Living Will, you set forth your wishes regarding end-of-life care, ensuring your wishes are followed and taking this tough decision off of your loved ones.
All adults over age 18 should have Advance Directives:
- Health Care Proxy
- Living Will
- Power of Attorney
Contact us to prepare these legal documents for you and keep control of these important decisions!