When Is it OK to Communicate With My Adult Patient’s Caregiver?

Consider the following case example and whether the Health Insurance Portability and Accountability Act (HIPAA) permits a health care provider to disclose information without patient consent to a patient’s family and/or caregivers:

You have been treating Mrs. B for depression for several years. She is 32 years old, married with two children, and recently lost her job. She also has been having marital difficulties. Her husband has not been involved in treatment, and Mrs. B did not provide consent to speak with her husband or other family members.

Recently, Mrs. B had been staying at her sister’s apartment and was found unresponsive lying next to an empty prescription bottle and brought to the local emergency department. The bottle of pills found next to her had your name on it, and the attending physician calls you upon Mrs. B’s arrival. The attending physician indicates that he left messages for both Mrs. B’s husband and sister. You would like to follow up with them as well to ensure appropriate follow-up is planned.

Are you permitted to call Mrs. B’s husband and/or sister?

As was covered in an earlier column (Psychiatric News, June 17, 2016), HIPAA recognizes the vital role that family and friends can play in a patient’s health care, and allows some communication between health care providers and some third parties. Under certain conditions, such communication can occur without prior patient consent.

According to guidance issued by the Department of Health and Human Services (HHS), the HIPAA Privacy Rule permits a health care provider to disclose protected health information without prior patient consent when the patient is not present or is unable to agree or object to a disclosure due to incapacity or emergency circumstances, if the health care provider determines that the disclosure is in the best interests of the patient. If a provider determines that such a disclosure is in the patient’s best interest, the provider is permitted to disclose only that protected health information that is directly relevant to the person’s involvement in the patient’s care or payment for care.

In making this determination about the patient’s best interests, the health care provider should take into account the patient’s prior expressed preferences regarding disclosures of their information, if any, as well as the circumstances of the current situation. Thus, in the case example described above, Mrs. B’s written authorization is not required to make disclosures to notify, identify, or locate her family members, personal representatives, or other persons responsible for the patient’s care. However, once Mrs. B regains the capacity to make these choices for herself, the health care provider should offer the patient the opportunity to agree or object to any future sharing of her information.

On the other hand, if Mrs. B is alert and has capacity to make health care decisions, the health care provider may disclose protected health information for notification purposes only if the patient agrees or, when given the opportunity, the patient does not object. Keep in mind, however, that even if a patient objects to disclosing information, HIPAA does permit health care providers to receive information from family members or other caregivers regarding the patient.

While there are no easy answers, HHS addresses issues concerning HIPAA and mental health in detail on its website.

In addition to HIPAA, please remember that state privacy laws must also be considered when determining whether a particular disclosure is permitted. You should always contact your local attorney or risk management professional with any questions regarding whether a certain disclosure is allowed. ■