family rights tagged posts

Jennifer Bernstein, JD, MPH
Senior Attorney, The Network for Public Health Law – Mid-States Region
University of Michigan School of Public Health

This is the second of three posts discussing privacy rights for mental health care provided by Attorney Jennifer Bernstein. Read the first installment from earlier this week. Additionally learn more by reading FAQs from the U.S. Department of Health & Human Services.

When and How Can A Family Member Become Involved in Care?
Now that we have discussed some of the basics of the HIPAA Privacy Rule, let’s consider some specific concerns that family members often have regarding treatment and care of their adult family members with a mental health disorder. Generally, HIPAA gives ultimate deference to a patient’s wishes as to the sharing of their health information. There are some exceptions that are important for the family members of individuals with mental illness.

When does mental illness constitute incapacity under the Privacy Rule?
The HIPAA Privacy Rule does make allowance for when a patient is unable to authorize disclosure due to incapacity. A major determining factor on whether to disclose a patient’s information to the their family, friends or other persons involved in their care is whether or not the disclosure is in the best interests of the patient.  Incapacity criteria may include when a patient is incoherent or suffering from psychosis.

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Jennifer Bernstein, JD, MPH
Senior Attorney, The Network for Public Health Law – Mid-States Region
University of Michigan School of Public Health

Patient Privacy in Mental Health: Balancing Rights while Trying to Ensure Appropriate Treatment

Privacy rights and protection of health information take on special meaning in mental health care, whether because of the stigma associated with mental health conditions, or issues of family dynamics, or a variety of other reasons. The on-going debate takes on increased importance in light of the tragedy this past weekend at the University of California at Santa Barbara.

Before we explore particular instances of how patient privacy has affected people with mood disorders and their families, we’ve asked attorney Jennifer Bernstein to provide an overview of privacy in mental health care. 

What is HIPAA?
The Health Insurance Portability and Accountability Act, commonly referred to as HIPAA, provides consumers with privacy rights and protections for their health information, including mental health information. Though enacted in 1996, HIPAA’s Privacy Rule governing individually identifiable health information took effect in 2001. The Privacy Rule seeks to strike a balance between protecting patient’s privacy by safeguarding sensitive health information and allowing for the sharing of a patient’s health information to ensure the best treatment and the health and safety of the patient or others. The following information applies generally to adult patients.

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Families for Depression Awareness

As family caregivers and caring friends of people living with mood disorders or other mental health conditions, we want to help our loved ones by

• keeping them safe
• getting them care to get well; and
• preventing suicides.

Sometimes people are in a state of mind that prevents them from making sound decisions. There are mental states (e.g., experiencing psychosis) and physical conditions (e.g., effects from a stroke) that can adversely affect a person’s usual good judgment. We agree with DBSA and others that, ideally, a person with a mental health condition will engage family members and friends as partners in wellness and in crisis. There will be a written plan and the legal documents necessary to ensure that care is pursued and provided according to the individual’s wishes as expressed when he or she was well. Mental health practitioners can make sure that families get information about this and should strongly encourage patients to bring a family member to at least the first appointment.

The Reality

In our experience, all too often these conversations and pre-planning have not occurred, and the family member must navigate the complex medical, insurance, and legal systems to get emergency care for their loved one.

Family members are frequently excluded from mental health care decisions, despite being the ones who often have the most pertinent knowledge and the greatest motivation to get someone the care they need to get well.

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