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We had a psych patient who made threats against the president. Do HIPAA laws prevent us from warning anyone and should we?

Friday June 1, 2012
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Question:

Dear Nancy,

I am an RN in a psychiatric crisis unit in the ED of an urban hospital. I recently had a patient who was intoxicated and made threatening statements about the president to the EMS crew. We wondered if it was our duty to warn someone. The patient did not have a psychiatric illness per se, bipolar, schizophrenia, etc. He was purely intoxicated. I did not hear him say this. He said it to the EMS team. I know in the psychiatric world we are held to a higher degree of confidentiality, but when I asked the physician in charge, he stated because of HIPAA rules, I could not notify anyone. This bothers me and has lead to interesting discussions at work. Does HIPAA rule out over everything?


Marian



Nancy Brent replies:

Dear Marian,

As a psychiatric nurse, you know that any threat made against another must be evaluated clinically. After that careful evaluation, if the threat is determined to be real, at a minimum it has been recommended the potential victim should be notified. Also, there are other steps that can be taken as well, such as initiating an involuntary admission to a psychiatric facility based on your state's mental health code and mental health confidentiality act and procedures.

The situation you describe in your question needs more data, but there appears to have been a concern about what this individual said, albeit under the influence of alcohol. HIPAA applies in this case and usually controls, unless state law provides more protection to the patient in regard to confidentiality.

HIPAA's privacy rule does provide for the disclosure of information in such a situation under Section 164.512(j)-“Standard: Uses and disclosure to avert a serious threat to health or safety.” Briefly, the standard states that a facility, consistent with applicable law and standards of ethical conduct, can use or disclose protected health information (PHI) if the facility in good faith believes the sharing is necessary to prevent or lessen a serious or imminent threat to a person. There are additional situations in which PHI can be disclosed under this section. In addition, the section lists what is not permitted and the limits on the information that may be disclosed. You can review the section by going to www.hhs.gov/ocr/privacy/hipaa/administrative/combined/index.html. The title of the document is "Combined Regulation Text of All Rules".(Accessed May 28, 2012).

Obviously, there would need to be a careful clinical evaluation of this patient's comment before any disclosure could occur. Likewise, any additional protections for the patient would need to be identified.

It always is a good idea when there is a question about HIPAA's application to a particular situation to seek input from your facility's compliance officer and risk management department to ensure the best course of action that protects all concerned is taken.


Cordially,
Nancy




Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.