HIPAA: Can I go around my senile patient?

April 1, 2005

Dr. Jane is one of the most caring dermatologists in her community. She has practiced dermatology for more than two decades and has seen many of her patients become quite elderly. She is saddened by the senility of some and is worried about their ability to consent to her various office-provided procedures. One of her patients with Alzheimer's disease has a brother who is the next of kin and holds a medical power of attorney that becomes effective when the described patient is no longer able to make decisions for himself. Dr. Jane has a copy of that power of attorney. She is often perplexed because, at almost all times, the patient is not lucid. However, in rare moments, he does understand what Dr. Jane is doing.

Patient privacy Dr. Jane recently performed a biopsy on the patient's face. The results of the biopsy are consistent with basal cell carcinoma. Can Dr. Jane call the brother? What if at that time of the call her patient is lucid? Would it be a HIPAA violation to call the brother at that exact time? Can Dr. Jane simply call the brother or must other steps be taken?

The key to these questions lies in the HIPAA regulatory provision concerning an individual's "personal representative." Certainly, Dr. Jane is permitted to release protected health care information to the patient himself. What, though, does the term "personal representative" mean? The HIPAA regulation clearly states that if, under applicable law, a person has authority to act on behalf of another adult individual in making decisions related to health care, then the physician must treat this individual as a personal representative with respect to relevant protected health information. If the conditions stipulated by the power of attorney have been met, then that person now has the authority to make decisions for the patient.

Increasingly challenging issues The situation becomes more difficult if Dr. Jane's patient was lucid for most of the time, instead of the opposite situation described above. This is because the releaseability of protected health information depends on whether a person has, at the time of the release, the actual authority to make healthcare decisions on behalf of the patient. In some cases, the patient's inability to make decisions for himself is perfectly clear and no one would dispute it. But because Alzheimer's disease has such a slowly progressive nature, the point of incompetence may be subject to debate. On some days, the patient may be able to make complex decisions for himself, while on other days, he may not. In this situation, the HIPAA regulations are not at all clear.

When the patient is plainly competent, the privacy rule, in fact, would prohibit Dr. Jane from revealing the biopsy results and treatment plan to her patient's brother. The brother, holding the power of attorney, represents an "agent in waiting." The brother holding this power of attorney before it becomes effective might become frustrated to be unable to get updates from Dr. Jane. However, that is the entire purpose of the HIPAA privacy rule. Although HIPAA privacy rules have some basis in common sense, they can also be confusing. To avoid this frustration and uncertainty, some lawyers have begun to draft medical powers of attorney that actually take effect before the patient loses full capacity to make decisions. Unfortunately, such "early" power of attorney is not recognized by all 50 states.

Dr. Jane's predicament is not unusual. Her decisions must be uided by both the law and reasonable common sense.

Dr. Goldberg is the director of Skin Laser & Surgery Specialists of New York and New Jersey, director of Mohs surgery and laser research, Mt. Sinai School of Medicine, and adjunct professor of law, Fordham Law School.