HIPAA Laws: Unintended Consequences January 10, 2010
Posted by Crazy Mermaid in HIPAA Laws, Involuntary Committment, Mental Hospital, mental illness.Tags: HIPAA Law, Involuntary Committment, Mental Hospitals, mental illness
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Anyone whose loved one suffers from severe mental illness has most likely run smack dab into the HIPAA laws when they try to help their loved one. The way they stand right now, HIPAA Laws (Health Insurance Portability and Accountability Act of 1996) are a hindrance rather than a help for the severely mentally ill population.
While researching this article, I tracked down the original source of the HIPAA laws. For those of you interested in doing your own research, the HIPAA Law is spelled out in its entirely in CFR (Code of Federal Regulations). Specifically, Title 45- Public Welfare Subtitle A Department of Health and Human Services Part 164 Subpart E Privacy of Individually Identifiable Health Information Section 164.506 through 164.512, Page 750 through 753. It’s all legalese.
But the bottom line is that Section 164.506 (b) says: A covered entity (Hospital or Medical Clinic) may obtain consent of the individual to use or disclose protected health information to carry out treatment, payment, or health care operations. That, my friends, is the paragraph barring the friends and family of a mentally ill person from acting as the patient’s advocate. Note the wording doesn’t say “must”. It says “may”. But in order to cover their asses from lawsuits from patients claiming they didn’t consent to divulging medical information to a particular family member or friend, medical facilities choose to turn the word “may” into the word “must”. Therein lie the problems.
While the goals of the HIPAA law are admirable, the HIPAA law needs to change when a person is diagnosed with a serious mental illness. This is especially true when a mentally ill person is hospitalized, either voluntarily or involuntarily, in a mental hospital. As the law stands now, the unintended consequences are that the HIPAA Laws work against mentally ill people, preventing them from obtaining advocacy and help in a time of critical need.
Here’s the rub: The State of Washington has the power to remove my civil rights in order to treat me. But this same entity, thought stripping me of my civil rights, does not allow my husband to step in as my advocate because HIPPA laws prevent it.
It’s important to note that one of the criteria for diagnosis of mental illness is the presence of crippling paranoia, delusions, hallucinations, or a combination thereof. Symptoms so bad, in fact, that the State has to step in and take the step of stripping the patient of civil rights, in order to commit the individual to a mental hospital for an unspecified period of time. The State gives that hospital the task of pumping the patient full of medication designed to bring about the return of the patient’s reasoning ability.
But the second the patient is committed, the HIPAA laws kick in. The patient is supposedly sick enough to require hospitalization for a chemical imbalance of the brain, stripped of his civil right to forego treatment for his illness, but this same patient, stripped of his civil rights, somehow (according to the HIPAA Laws) retains the right of privacy afforded by the HIPAA laws. The bottom line is that the State selectively decides which rights to strip the patient of and which rights to allow the patient to keep. They make the absolute worst value judgment in the history of humankind: the State assumes that a patient who loses his mind to the point that he has to be committed to a mental hospital has somehow retained the ability to advocate for himself. That patient, stripped of his civil rights and without an advocate, is left at the mercy of the hospital personnel, who don’t necessarily have the patient’s best interests at stake in their decision-making process. The patient is left vulnerable, the paranoia freezing out all other thought. And with their civil rights stripped and an ill brain, the patient’s supposed to be able to make rational decisions and act as their own advocate? Yeah right.
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Again, Mermaid, thank you for posting this. So many people don’t know this, and it’s so important that we know, or the people who love us know this. It’s as important for us to know as it is for us to know our blood type, and if we are allergic to pennecillin……
would it be ok if I mirrored this in future?
Thanks for your kind words. I’d love it if you mirror it. I think the word needs to get out there about what the problem is, so that maybe we can change the law- at least for the committed.
Doesn’t your state/country have some kidn of Mental Capacity Act (or whatever it’s termed where you are) provision that, in cases of temporary incompetency, an “informal” advocate (eg. family member) can make decisions on behalf of a patient. IN the Netherlands, even if you don’t have a legal guardian, if you are mentally or physically incpable to make your own decisions, a family member (or the person you have yourself appointed in writing prior to becoming ill) can be informally used as your advocate, and that person does have access to your information. My staff have my boyfriend’s contact details in case something seriosu happens to me (I am committed voluntarily and presumed able to make my own decisions). I wouldn’t want my hospital to disclose my medical information to my parents.
Thanks for your comments, Astrid. Therein lies the problem. If I go insane and haven’t given anyone any written permission to be my advocate, I go without one here in Washington State. Unlike the Netherlands, we haven’t advanced far enough to wrap ourselves around the whole mental-illness-means-severely impaired judgment thing. So many parents and loved ones of mentally ill people suffer so much because they can’t be an advocate because of the HIPAA Laws. And our litigious society terrifies mental health caregivers to the point of paralysis. They don’t dare allow a husband or parent to assume the role of advocate for fear the mentally ill person will turn around and sue them. It’s a sad mess.
There is something in the US called a Psychiatric Advanced Directive but I think different states have different policies on it.
HIPAA is definitely a double-edged sword. The whole reason I originally became involved in mental health activism was to blow the whistle on the state hospital, but HIPAA has been a hindrance every step of the way. It’s very easy for professionals who abuse and neglect people in institutionalized settings to use confidentiality laws to divide and conquer their victims.
Good point, MBPG. I checked this out and it turns out The Psychiatric Advance Directive is for people who are sane enough to make one. They aren’t in the throes of an “episode”. By the time a m.i.person need to be hospitalized (esp. involuntarily), a severe case of paranoia usually sets in and the person can’t distinguish friend from foe. Sadly, everyone’s an enemy, which is part of the illness. In my case, I was in the throes of an episode when my ass was hauled away to the funny farm. Too late.
Good point. If someone gets hit by a car without having an AD in place medical decisions go to his or her family by default. A PAD should work the same way.
It should be handled the way that “physical” ailments are, but here we go with that stigma thing.:(
I am thrilled I found your blog!!!!
I am researching for a paper, and I too believe that the HIPPA laws are in a sense aiding and abetting murder!
In my local area a young man murderd his coach. His parents spent several years trying to get him help, and because he was over 18 the HIPPA laws prevented them from helping him effectivly, now not withstanding I think on the whole the entire mental health profession hand their hand in too, it’s just that they were unable to even know what medication he was on. Not until he murdered his coach were they informed (through the trial I might add) what he was taking at the time of the crime.
Is there any help to overide Hipaa when it comes to a 32 year old with paranoid skisofrenia, bi-polar , rage, serious threats against his mother and other women. It is very frightening and now he has damage to the frontal lobe of his brain and I can ‘t get past hipaa to see the brain scan report and get him for his MRI. he is not in his right mind right now and hipaa one day will be the death of some poor person, my son or me. If anyone can help me please my son is dangerous. I need something to by pass the Hipaa law concerning mental illness of this magnitude. Please call or email. catrin1954@epix.net
or 570-207-3181 Thank YOU
My husband was recently involuntarily committed to the hopsital and diagnosed with bipolar disorder after his first manic episode. When we first arrived at the hopsital for other reasons, and still sane, he signed a HIPPA waiver with my name on it. After his manic episode started and was declared insane and involunarily committed, they allowed him to sign a declaration to the HIPPA consent and did not put my name on it, as he had no idea what he was doing for a couple of days before they got him under control. The doctors refused to talk to me and I had no idea what was going on. I am trying to research these HIPAA laws and what I can do to help fight this. My husband has been released and on medication and has now included me in all of his outpatient care HIPAA forms. However, if this ever happens again, he might change that as he won’t know what he is doing. We are a close family. Can you contact me with any advise on what I need to/can do. I am very upset with the hospital he was in and how our family was treated. rpotter428@yahoo.com Thank you