Q: What information is the nurse able to share with the patient's family or friends?

Answer provided by Renee H. Martin, JD, MSN, RN

A: The HIPAA Privacy Rule specifically permits covered entities to share information directly relevant to the involvement of a spouse, family members, friends, or other persons identified by a patient, in the patient's care or payment for healthcare. If the patient is present, or is otherwise available prior to the disclosure, and has the capacity to make healthcare decisions, the covered entity may discuss this information with the family and these other persons if the patient agrees or, when given the opportunity, does not object. The covered entity may also share relevant information with the family and these other persons if it can reasonably infer, based on professional judgment that the patient does not object.

When Permitted

Under these circumstances, for example:

· A nurse may give information about a patient's mobility limitations to a friend driving the patient home from the hospital.

· A hospital may discuss a patient's payment options with her adult daughter.

· A nurse may instruct a patient's roommate about proper medicine dosage when she comes to pick up her friend from the hospital.
 
· A nurse may discuss a patient's treatment with the patient in the presence of a friend when the patient brings the friend to a medical appointment and asks if the friend can come into the treatment room.

When Patient Not Present

Even when the patient is not present or it is impracticable because of emergency circumstances or the patient's incapacity for the covered entity to ask the patient about discussing her care or payment with a family member or other person, a covered entity may share this information with the person when, in exercising professional judgment, it determines that doing so would be in the best interest of the patient. Thus, for example:

· A surgeon may, if consistent with such professional judgment, inform a patient's spouse, who accompanied her husband to the emergency room, that the patient has suffered a heart attack and provide periodic updates on the patient's progress and prognosis.

· A nurse may, if consistent with such professional judgment, discuss an incapacitated patient's condition with a family member over the phone.

In addition, the Privacy Rule expressly permits a covered entity to use professional judgment and experience with common practice to make reasonable inferences about the patient's best interests in allowing another person to act on behalf of the patient to pick up a filled prescription, medical supplies, X-rays or other similar forms of protected health information. 

For example, when a person comes to a pharmacy requesting to pick up a prescription on behalf of an individual he identifies by name, a pharmacist, based on professional judgment and experience with common practice, may allow the person to do so.

However, remember that HIPAA does not pre-empt or "override" certain other laws which may afford health information with greater privacy protections. For instance, federal drug and alcohol laws impose stricter confidentiality requirements, as do many state laws governing mental health treatment information. With these patient populations, the nurse must also look to these federal and state laws to determine what can be disclosed to family members or others.

Renee H. Martin is a health law attorney and a member of the health law firm of Tsoules, Sweeney, Kepner & Martin, LLC, located in Exton, PA.

Nothing in this column is intended to establish an attorney-client relationship between the author and the individuals who posed these questions or the reader. Readers are cautioned not to regard this column as legal advice and should instead contact legal counsel for definitive advice.