Patient Privacy and Confidentiality --- Time to Draw the Line
Miguel A. Faria, Jr., MD
These new standards could serve as the
of a cradle-to-grave medical record
on each and every American.
Denise Nagel, MD
President, National Coalition for Patient Rights
Physicians' survival will depend on their
articulate eloquently to the public the fact
that they have been and remain their patients'
best advocates. If physicians are not successful
in conveying this message, the medical profession will
become an enslaved government trade union
rather than remaining an independent and
honorable profession. That is, in short,
what is at stake for the House of Medicine.
Miguel A. Faria, Jr., M.D.
Vandals at the Gates of Medicine, p. 206
The dismemberment of the medical profession continues unabated in the age of managed care, HMOs, and corporate socialized medicine. The patient-doctor relationship, erstwhile based on trust and beneficence, has been eroded by the corporatist ethics imposed on the practice of medicine. The situation worsens daily as the excesses of HMOs are brought to light and patients realize many of their physicians are no longer their advocates but adversarial gatekeepers, enticed by the managed care organizations (MCOs) to ration medical care - for the network's (and the doctor's) economic benefit.
One area where this dismemberment is most pronounced, aimed like a dagger at the heart of Hippocratic medicine, is the relentless violation of patient privacy and medical record confidentiality. Privacy and trust in the patient-doctor relationship have been essential elements in medical ethics and the practice of medicine. Thus, it's worth examining what the Oath of Hippocrates states regarding this issue:
Whatever, in connection with my professional practice, or not in connection with it, I may see or hear in the lives of men which ought not to be spoken abroad I will not divulge, as reckoning that all such should be kept secret.
While I continue to keep this oath unviolated, may it be granted to me to enjoy life and the practice of the art, respected by all men at all times, but should I trespass and violate this oath, may the reverse be my lot.
Patient confidentiality, then, is not only a time-honored principle of medical practice, but indeed, a strong covenant of the ethics of Hippocrates, inherent to the honorable medical profession.
When President Clinton was asked to release his medical records to the public during the 1996 re-election campaign, he invoked the privacy of the patient-doctor relationship and his lawyers refused to do so (recently it has taken subpoenas and a grave criminal investigation by the Office of the Independent Counsel before the president surrendered certain biologic samples and medical information to government investigators). Americans should be entitled to, and afforded, this same right of privacy, and should be concerned about confidentiality for ultimately, as patients, we will all have sensitive medical information compiled. Yes, we will all have medical charts compiled documenting details of our medical history, which should only be inspected by medical personnel to whom explicit written consent has been given for continuity of medical care, or made accessible to third parties (including the government) upon written authorization from the patient - each time information is requested, and delineating the specific need for the disclosure, as well as outlining the manner in which the information will be used.(1)
This may not seem as important in our open and permissive society of the 1990s, as it was at the time of the Nazi Third Reich in Germany, where records of those whose life were deemed "not worth living" were compiled, inspected, and selected by government officials before the intended victims were sent to the extermination camps. Nevertheless, no one knows what the future will bring. The holocaust of Nazi Germany, after all, was preceded by the openness, permissiveness, and seemingly beneficent social and welfare policies of the Weimar Republic.
Confidentiality of medical records is, perhaps, particularly important
in the case of psychiatric patient-doctor consultations. In the Soviet Union,
"psychiatric" records of dissidents were kept and used to document
the "illnesses" prior to sending the "patients" for
"rehabilitation" in the gulags of Siberia. In America, only a
few years after the stumble of the Soviet bear - and at the height of the
1993-1994 health care debate - Hillary Clinton wanted to establish a Health
Security Card with an encoded computer chip capable of containing 60 pages
of potentially prejudicial information (i.e., sexually transmitted diseases,
drug and alcohol abuse, depression, etc.) and sensitive personal data (i.e.,
living arrangements, impotence, sexual practices, etc.) on every American
- a federal dossier - from personal medical records to tabulations of individual
health care costs (i.e., charges incurred by the government as a result
of the individual acting as a "consumer of finite and scarce health
care resources"). As U.S. Supreme Court Justice William O. Douglas
stated in 1996: "Once electronic surveillance...is added to the techniques
of snooping that this sophisticated age has developed, we face the stark
reality that the walls of privacy have broken down and all the tools of
the police state are handed over to our bureaucracy."(2)
Towards a National ID Card
Today, all three branches of government are making a mockery of patient record confidentiality and the privacy (and trust) of the patient-doctor relationship. In fact, patient medical records are being viewed increasingly as public property and considered "within the public domain" by many government bureaucrats! The administrative simplification provisions of the Kassebaum-Kennedy law (1996) and the various administrative edicts from the offices of the Department of Health and Human Services (HHS) and the Health Care Financing Administration (HCFA) militate, ever more insidiously, for the collection and the electronic transfer of records (including mental health records), and medical data generated by every patient-doctor encounter. Ironically, the Kassebaum-Kennedy law* requires HHS Secretary Donna Shalala to make recommendations for preserving patient confidentiality in medical records. Instead, Sec. Shalala contends that "individuals' claims to privacy must be balanced by their public responsibility to contribute to the common good, through use of their information for important, socially useful purposes..."(3) Although Sec. Shalala and the government in other communications have paid lip service, in Orwellian Newspeak fashion, to preserving personal privacy, the assignment of unique health identification requirements makes a mockery of patient confidentiality and personal privacy.
The compulsory Evaluation and Management Documentation Guidelines (E&M Guidelines) which were set to debut July 1, 1998, but were cancelled thanks to the widespread opposition from grassroots physicians (and the threatening legal action by the AAPS), would have, amongst its many rules and onerous regulations, forced physicians to record and disclose privileged communications between consulting physicians about patients' confidential information. Unfortunately, we have not seen the last of these E&M guidelines. Frankly speaking, the AMA and HCFA have invested too much time and effort into this monstrosity of medical regimentation to give it up so easily. The AAPS, incidentally, has also objected to the incorporation of the AMA's Current Procedural Terminology (CPT) with the mandatory electronic standard and the establishment of a monopolistic public-private partnership for the furthering of a more intrusive surveillance system of physicians and patients.(4)
Although lip service is also paid to patient privacy by the medical politicians, the truth of the matter is that the door has been opened by the state for the all out invasion of private medical records, and beginning this year, federal, state, and/or agents of insurance companies that have contracted with government through Medicaid, Medicare, KidCare, etc., can invade the privacy of medical records with impunity for the purported benefit of data collection and the establishment of national medical databases.
Moreover, in the July/August 1998 issue of the Phyllis Schlafly Report, it was reported that the public schools are also participating in a national data collection system that will collate and compile private student information, including academic, attitudinal, and behavioral records as well as private family information.
In our topsy-turvy, postmodern world, it appears that in medical practice the only privacy the government and the courts recognized is the penumbra right of privacy (Griswold v. Connecticut, 1965) for a woman to terminate her pregnancy and for doctors to perform abortions (Roe v. Wade, 1973), not those natural rights our Founding Fathers considered a matter of individual privacy, the right of the individual to be left alone by the state as long as he does not violate the rights of others - and allowed to be secure in his person, in his house, with his papers, and effects...as embodied in the Fourth Amendment of the Bill of Rights.
Moreover, in health care issues, this assault on personal privacy and patient confidentiality, fundamental requirements of the patient-doctor relationship and the practice of medicine, are specifically forbidden by Section 1801 of the Medicare law which states: "Nothing in the title shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided...as to exercise any supervision or control over the administration or operation of any such institution, agency, or person."
All Americans should be alarmed by this government assault on privacy. During this year alone, at least three different national identifiers were proposed by various government agencies to iden-tify and register all citizens - purportedly, for our own (and the collective) good.
1. The Unique Patient Identifier (UPI) establishes children immunization registries and computerized patient medical records for every citizen - a centralized national computer database of medical information compiled from cradle-to-grave. Under UPI, not only administrative medical information but also "living arrangements, years of schooling, occupation, total billed charges, etc." will be compiled by the state "for socially useful purposes."
2. The National Provider Identifier (NPI) collects information and establishes medical databases on all physician-patient encounters. Sensitive information contained in the medical record will therefore be accessible not only to a myriad of government agencies but also to private entities working with the state.
3. The National Identity Card (nicknamed NIC), under which gun sales and firearm ownership registries will be established by the FBI "to enhance the effectiveness of the Brady Check laws" (gun registration through the back door), will dovetail nicely with the already begun, state by state, driver's license requirements, including fingerprinting or other biometric identifications such as retinal scans, voice recognition, and genetics (DNA), bringing us ever closer towards Big Brother's national ID card.
Invasion of personal privacy and the assignment of a national ID card
to every citizen are inextricably related - and a threat to individual liberty.
As Rep. Bob Barr (R-GA) has written, "History - from Nazi Germany
to Soviet Russia - is replete with examples of a pronounced link between
totalitarian regimes and strict, effective identification systems. After
all, it is nearly impossible to repress one's citizens if you don't know
where they are, what they're doing at all times...."(5)
Invasion of Privacy
In brief, it appears the government is bound and determined to invade our privacy: Point of fact - the FBI's recently revealed (and still to be concluded and abjudicated) mishap in the improper transfer of 900 personal files to the White House - for who knows what purpose - leaves much to be desired when it comes to placing trust in government agencies to safeguard confidentiality! Indeed, "Filegate" demonstrates the utter and serious failure of the government to protect citizens' privacy. Yet, unfazed, FBI Director Louis Freeh persists in pushing for a federal law that would require all privately encrypted electronic communications between businesses and/or private citizens to be available for inspection by the federal leviathan.(6) Moreover, the reader should be reminded that since at least 1996, in the wake of the Oklahoma City bombing and in the name of fighting domestic terrorism, the FBI has also been seeking extraordinary, unconstitutional powers to increase domestic surveillance in the form of widespread use of wiretapping of America's homes and businesses to eavesdrop on private conversations. And not only has the FBI been pushing for access to private encrypted information but also, since mid-July, has been seeking authority to track and monitor personal cellular phones and pressing phone companies to obtain and provide technology to determine the precise location of cellular phone users at all times.(7)
Although at the time of this writing, the provisions to implement a national ID card have been supposedly placed on hold by a beleaguered administration because of the public outcry about this and other issues, I suspect we have not heard the last of them. Thus, I urge patients, physicians, and citizens to remain vigilant so that a national ID card is not implemented in any form or fashion, either by regulatory decree or Presidential Directive, when we are not looking. Moreover, we must remember that the Department of Transportation is still pressing (and accomplishing) the goal of national personal identification via the venue of the states' enforcement of driver's license requirements.(8) History teaches us that the government assignment of national ID cards is the cornerstone of totalitarianism, tyranny, and the loss of individual freedom.
Yet, there is a glimmer of hope. Representatives Ron Paul (R-TX) and Bob Barr (R-GA) have introduced complimentary bills to curtail government assault and invasion of privacy. Rep. Paul's "The Freedom and Privacy Restoration Act" (H.R. 4217) repeals the portion of the Kassebaum-Kennedy law authorizing the federal government to convert driver's licenses into veritable national ID cards. Rep. Barr's bill, "The Citizen Privacy Protection Act of 1998" (H.R. 4197), would repeal section 656 of the "Illegal Immigration Reform and Immigrant Responsibility Act of 1996" which also authorizes the unconstitutional implementation of a national ID card.(9)
The Attorney-Client Privilege
Suffice to say, the confidentiality of medical records and the patient-doctor relationship should be sacrosanct and inviolable, accorded the same respect and legal privileges as the paramount attorney-client relationship. Repeatedly, the legal profession, to its credit, has preserved and enhanced the attorney-client privilege of communication confidentiality. They drew the line in the sand long ago - and they have prevailed. The government for all its growth and power has not dared to cross it. The medical profession should do no less.
In fact, this past summer, the Supreme Court (June 25, 1998) denied Independent Counsel Kenneth Starr access to notes of the late Deputy White House Counsel Vincent W. Foster, Jr., regarding one of the many presidential scandals (Travelgate). These notes were (and are) important also because they could, perhaps, have shed some light on Mr. Foster's state of mind and why he may have committed suicide. The Supreme Court voted 6-3 to uphold the communication confidentiality prerogative bestowed upon the attorney-client privilege, even after death. Chief Justice William H. Rehnquist writing in an 11-page majority opinion stated: "Knowing that communication will remain confidential even after death encourages the client to communicate fully and frankly with counsel."(10)
Organized medicine should take heed. The AMA with its $130 million in reserve should be at the forefront of the restoration of privacy in the patient-doctor relationship and the preservation of what remains of medical record confidentiality - at the very least, while patients are alive!(11) The Freedom in Medicine Foundation and the AAPS are doing something about it. I refer you to Dr. Nino Camardese's American Citizens Petition on page 183 in the September/October 1998 issue of the Medical Sentinel.(1) The AAPS is on record as opposing coercive data reporting because:
1. Such disclosures violate patients' rights.
2. Such disclosures can be harmful, either through unauthorized disclosures or through the intended use of the data.
3. There is no compelling public interest served by collecting the data; rather the rights of the public are being sacrificed for private interests.(12)
The time is now for the leaders of organized medicine to prove they - and the AMA - are still relevant, and that they are willing to mobilize their manpower, legal resources, and finances to move heaven and earth for our profession and our patients, and by joining the AAPS in fighting for the ethics of Hippocrates and the sanctity of the patient-doctor relationship. It's time the leadership of organized medicine disinter their heads from the sand and confront the evil eroding the sacrosanct patient-doctor relationship and trust in the medical profession. It's time we draw the line. Unless all citizens stand up and say no, one day we will find ourselves devoid of privacy and naked before the government inspectors, like Winston Smith before the Ministry of Truth in Orwell's 1984.
* Unbeknownst to most Americans, this law also fulfills one of Karl Marx's plank of the Communist Manifesto: the seizing of assets of expatriates. This provision in the Kassebaum-Kennedy law authorizes the IRS to tax again all assets of American expatriates before they leave the country and then for the IRS to follow and tax them overseas for the next 10 years! When we asked our U.S. Senator Paul Coverdell (R-GA) specifically about this provision, he ducked the question and never answered us.
1. Camardese N. Medicine - The Keystone to Freedom. Medical Sentinel
2. An Electronic Bill of Rights? AAPS News, Sept. 1998.
3. Brase T. Big brother is on the march. Intellectual Ammunition, The Heartland Institute, 19 South Lasalle, Suite 903, Chicago, IL 60603, July 1998, p.7.
4. Orient JM. Enumeration. AAPS News 1998;54(8):1.
5. Barr B. The camel's nose under the tent. World Net Daily, July 27, 1998. http://www.worldnetdaily.com.
6. Private Attack. Human Events,422 First St., SE, Washington, DC 20003, August 7, 1998, p.29.
7. Bellinger L. FBI seeks the authority to track and monitor mobile cell phones. American Sentinel, August 1998, issue #617, p.9. P.O. Box 12497, Charlotte, NC 28220-2497.
8. Faria MA Jr. ...and now they want you on their list. The Washington Times, National Weekly Edition, April 27-May 3, 1998, p.9.
9. Bonta S. Gearing up for a national ID. The New American, 770 Westhill Blvd., Appleton, WI 54914, August 17, 1998, pp.17-18.
10. Seper J. Starr loses bid for Foster notes. The Washington Times, National Weekly Edition, June 29-July 5, 1998, p.8.
11. Faria MA Jr. Transformation of medical ethics through time (Part I): Medical oaths and statist controls. Medical Sentinel 1998;3(1):20.
12. Orient JM. Statement on The Health Care Access and Cost Commission (HCACC) Medical Care Data Base Collection Notice and Informed Consent to the Maryland General Assembly, February 29, 1996. AAPS News, Legislative Supplement, April 1996, p.S1.
Dr. Faria is a consultant neurosurgeon and author of Vandals at the
Gates of Medicine (1995) and the newly released Medical Warrior:
Fighting Corporate Socialized Medicine (Macon, Georgia, Hacienda Publishing,
Inc., 1997). He is also the Editor-in-Chief of the Medical Sentinel.