Electronic Health Record - Governance, Privacy and Legal Issues - Privacy Concerns

Privacy Concerns

In the United States, Great Britain, and Germany, the concept of a national centralized server model of healthcare data has been poorly received. Issues of privacy and security in such a model have been of concern.

Privacy concerns in healthcare apply to both paper and electronic records. According to the Los Angeles Times, roughly 150 people (from doctors and nurses to technicians and billing clerks) have access to at least part of a patient's records during a hospitalization, and 600,000 payers, providers and other entities that handle providers' billing data have some access also. Recent revelations of "secure" data breaches at centralized data repositories, in banking and other financial institutions, in the retail industry, and from government databases, have caused concern about storing electronic medical records in a central location. Records that are exchanged over the Internet are subject to the same security concerns as any other type of data transaction over the Internet.

The Health Insurance Portability and Accountability Act (HIPAA) was passed in the US in 1996 to establish rules for access, authentications, storage and auditing, and transmittal of electronic medical records. This standard made restrictions for electronic records more stringent than those for paper records. However, there are concerns as to the adequacy of these standards.

Threats to health care information can be categorized under three headings:

  • Human threats, such as employees or hackers
  • Natural and environmental threats, such as earthquakes, hurricanes and fires.
  • Technology failures, such as a system crashing

These threats can either be internal, external, intentional and unintentional. Therefore, one will find health information systems professionals having these particular threats in mind when discussing ways to protect the health information of patients. The Health Insurance Portability and Accountability Act (HIPAA) has developed a framework to mitigate the harm of these threats that is comprehensive but not so specific as to limit the options of healthcare professionals who may have access to different technology.

In the European Union (EU), several Directives of the European Parliament and of the Council protect the processing and free movement of personal data, including for purposes of health care.

Personal Information Protection and Electronic Documents Act (PIPEDA) was given Royal Assent in Canada on April 13, 2000 to establish rules on the use, disclosure and collection of personal information. The personal information includes both non-digital and electronic form. In 2002, PIPEDA extended to the health sector in Stage 2 of the law's implementation. There are four provinces where this law does not apply because its privacy law was considered similar to PIPEDA: Alberta, British Columbia, Ontario and Quebec.

One major issue that has risen on the privacy of the US network for electronic health records is the strategy to secure the privacy of patients. Former US president Bush called for the creation of networks, but federal investigators report that there is no clear strategy to protect the privacy of patients as the promotions of the electronic medical records expands throughout the United States. In 2007, the Government Accountability Office reports that there is a "jumble of studies and vague policy statements but no overall strategy to ensure that privacy protections would be built into computer networks linking insurers, doctors, hospitals and other health care providers."

The privacy threat posed by the interoperability of a national network is a key concern. One of the most vocal critics of EMRs, New York University Professor Jacob M. Appel, has claimed that the number of people who will need to have access to such a truly interoperable national system, which he estimates to be 12 million, will inevitable lead to breaches of privacy on a massive scale. Appel has written that while "hospitals keep careful tabs on who accesses the charts of VIP patients," they are powerless to act against "a meddlesome pharmacist in Alaska" who "looks up the urine toxicology on his daughter's fiance in Florida, to check if the fellow has a cocaine habit." This is a significant barrier for the adoption of an EHR. Accountability among all the parties that are involved in the processing of electronic transactions including the patient, physician office staff, and insurance companies, is the key to successful advancement of the EHR in the US Supporters of EHRs have argued that there needs to be a fundamental shift in "attitudes, awareness, habits, and capabilities in the areas of privacy and security" of individual's health records if adoption of an EHR is to occur.

According to the Wall Street Journal, the DHHS takes no action on complaints under HIPAA, and medical records are disclosed under court orders in legal actions such as claims arising from automobile accidents. HIPAA has special restrictions on psychotherapy records, but psychotherapy records can also be disclosed without the client's knowledge or permission, according to the Journal. For example, Patricia Galvin, a lawyer in San Francisco, saw a psychologist at Stanford Hospital & Clinics after her fiance committed suicide. Her therapist had assured her that her records would be confidential. But after she applied for disability benefits, Stanford gave the insurer her therapy notes, and the insurer denied her benefits based on what Galvin claims was a misinterpretation of the notes.

Within the private sector, many companies are moving forward in the development, establishment and implementation of medical record banks and health information exchange. By law, companies are required to follow all HIPAA standards and adopt the same information-handling practices that have been in effect for the federal government for years. This includes two ideas, standardized formatting of data electronically exchanged and federalization of security and privacy practices among the private sector. Private companies have promised to have "stringent privacy policies and procedures." If protection and security are not part of the systems developed, people will not trust the technology nor will they participate in it. So, the private sector know the importance of privacy and the security of the systems and continue to advance well ahead of the federal government with electronic health records.

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