The Terms: Privacy, Confidentiality, and Privilege

by Ellen Foell, Legal CounselConfidential

I like watching sports but I don't really follow them very well. I watch with my son who is an avid sports fan and knows all the rules and all the terms. Sometimes when we watch a game together, I get confused because I don't know why a nice young man is in the penalty box. It just sounds so harsh. And I don't understand what it means that someone gets checked when it looks like the other person was not checking anything at all. Or, why can't the person who hits a ball hard enough that it bounces off the wall just keep running; why is it only a double?

I would probably enjoy the games more if I understood the terms and rules.

This is true in life generally.

Sometimes, in the pregnancy help world it helps to take a moment to understand some of the terms that are used. This month, we are looking at the terms privacy, confidentiality, and privilege. What is the difference? Does it make a difference if there is a difference?

Well, yes.

If nothing else, if we understand the meaning of the terms, we can use them appropriately in the correct context.

In the Commitment of Care and Competence, affiliates agree in Tenet 5 that "Client information is kept in strict and absolute confidence. Releases and permissions are obtained appropriately. Client information is only disclosed as required by law and when necessary to protect the client or others against imminent harm." This tenet does mention confidentiality, and though it does not specifically mention privacy and privilege it does address both privacy and privilege.

Privacy: noun pri•va•cy \ˈprī-və-sē, especially British ˈpri-\ : the state of being alone : the state of being away from other people; the state of being away from public attention. Full Definition of PRIVACY: 1a : the quality or state of being apart from company or observation : seclusion b : freedom from unauthorized intrusion <one's right to privacy>

The genesis of the legal right to privacy is found in Griswold v. Connecticut, 381 U.S. 479 (1965) and, of course, sprang forth fully grown, just as the goddess Athena sprang forth from the head of Zeus, from the collective mind of the Supreme Court of the United States in Roe v. Wade, 410 U.S. 113 (1973). The progeny of Roe vs Wade has populated every area of our culture as it became fashionable, legal, and acceptable to hide all manner of behavior behind the right to privacy curtain.

What is the right to privacy?

Privacy is what you and I enjoy.

We all possess information, data, if you will, about ourselves which we may choose to disclose or not disclose. We get to decide to whom such information is disclosed, if at all. Justice Brennan penned "If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion." It is however more than that.

A right to have private information is the right of the individual to be free from the snooping nose of the neighbor, from the employer who is given boundaries on what the employer may learn, to be limited in what can be learned about us by the general public.

It is the right of the individual to choose what other people know and do not know about us. Thus, when our patients come through our doors, they come having information, data, some of it very personal data, some of it identifying data, i.e. home address, telephone number, a date of birth, or perhaps, even a picture of herself, which they choose to disclose to your organization, specifically, the intake person.

Now that someone has entrusted you with this information, this data, about themselves that they might normally not give to another, what do you do with it?

According to the CCC, you promise to keep that information confidential.

Confidentiality: noun classified, concealed, hidden, not for publication, not to be communicated, not to be disclosed, not to be quoted, not to be spoken of, privacy, protected, restricted, revealed in confidence, secrecy, secret, spoken in confidence, told in confidence, top-secret, unmentionable, unrevealed.

Confidentiality is the duty your organization has to keep the private information, or data, given to you, confidential. In other words, private information, entrusted to you, is given to others on a need to know basis only.

An organization should maintain appropriate precautions to keep the information confidential. Simple precautions include keeping patient files in locked cabinets, or closets, restricting access to those who need to know, if the data is on a computer, ensure that the computers are password protected, and are timed out after a specific time period. Files should be kept in the organization.

If an organization is pursuing these simple precautions, confidentiality is more likely than not to be ensured.

Further, a patient coming to your organization will want to know that the private data she is sharing with you will be kept confidential.

It is impossible to talk about the duty of confidentiality without also talking about breaches of the duty of confidentiality. A breach, or breaking, of confidentiality is an agreed to breaking of the promise of confidentiality (a release or permission) or a legally mandated breaking of the promise (mandatory reporting). The duty of confidentiality is strict and absolute, as stated in Tenet 5, unless the patient agrees to let the organization use the data or information in some specific way or manner, or the organization is compelled by law to release the private information.

The latter situation, in which an organization is compelled in certain circumstances to disclose private information, is typically disclosed to the patient on the patient intake sheet, and often also verbally explained to the patient.

This exception to the strict and absolute duty of confidentiality is called mandatory reporting. It permits a "breach" of the duty of confidentiality for the purpose of protecting the patient, from harm to self or others or another identifiable person from imminent harm, including communicable diseases.

Who is a mandatory reporter is determined by state law. For a complete listing of state by state listing of mandatory reporters click here.

In such a scenario, society places a higher premium on protecting the patient or another person from imminent harm than it does on protecting the private information, data, of the individual.

The second "breach" of confidentiality is the situation in which a patient allows the breach. Thus, if an organization takes a picture of the patient (a piece of private identifiable information) and would like to use the image in a newsletter or brochure, the organization may ask the patient for permission to use the private data. The patient gives that permission, if she chooses to, by way of a written release or permission given to the organization for specific and limited purposes, i.e., to use the image for the brochure.

There is a third "breach." That is the breaking of the duty of confidentiality under court order-a subpoena. If a subpoena is delivered to an organization, the organization should seek to cooperate with civil authorities while also protecting the interests of the patient. An organization may notify a patient that the subpoena has been received so that she has an opportunity to challenge the subpoena if there is legitimate basis to do so. An organization should also have the subpoena reviewed by its own attorney to explore whether the organization has any legal basis to object to the subpoena.

This leads us to the third term...what is privilege? Is it the same as confidentiality? After all, privilege usually protects private information.

Privilege - Privileged Communication: "A communication between persons in such a confidential relationship, be it attorney and client, physician and patient, or confessor and penitent, that public policy prohibits the disclosure thereof by the person to whom it was made as a witness testifying in an action or proceeding, upon objection thereto by the person who made it."

Ballentine's Law Dictionary, The Lawyer's Cooperative Publishing Company, 1969.

Private information is different from a privileged communication. A privileged communication is information that is disclosed in the context of a special and specific relationship, i.e. priest-penitent, attorney-client, doctor-patient, husband-wife. In some states, the law also gives a privileged status to communications between a psychotherapist and a client, a social worker and a client or a reporter and the source of information.

Because of the special intimacy of those relationships, the expectation of confidentiality within those specific relationships, and the desire of society to encourage truthfulness and candor in those relationships especially, society has chosen to allow those relationships a "privilege."

Thus, the privilege is such that no one can simply demand that a priest divulge the private information entrusted by the penitent, nor can a doctor simply decide that the patient's private information is up for the public grab. The privilege belongs to the spoken to spouse, the patient, the penitent, and the client and only that party can release the other person in the special relationship to disclose the private information.

In order for private information in those relationships to be considered privileged the communication must usually be made in a private setting (that is, in a context where confidentiality could reasonably be expected). The privilege is lost or waived when all or part of the communication is disclosed to a third person.

Think of a privileged communication as private information on steroids.

Remember, patients come to you holding private and personally identifiable information or data. Because the patient values the services your organization provides, the patient gives you the privilege to hear and hold that private data about the patient. You, as the clinic, agree to hold that communicated information in confidence in keeping with the Commitment of Care and Competence.

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