Chaplains and confidentiality.
Subject: Confidential communications (Management)
Chaplains, Hospital (Management)
Hospitals (United States)
Hospitals (Laws, regulations and rules)
Disclosure of information (Laws, regulations and rules)
Pub Date: 01/01/2009
Publication: Name: The Hastings Center Report Publisher: Hastings Center Audience: Academic; Professional Format: Magazine/Journal Subject: Biological sciences; Health Copyright: COPYRIGHT 2009 Hastings Center ISSN: 0093-0334
Issue: Date: Jan-Feb, 2009 Source Volume: 39 Source Issue: 1
Topic: Event Code: 200 Management dynamics; 930 Government regulation; 940 Government regulation (cont); 980 Legal issues & crime Advertising Code: 94 Legal/Government Regulation Computer Subject: Company business management; Government regulation
Product: Product Code: 8060000 Hospitals NAICS Code: 622 Hospitals SIC Code: 8060 Hospitals
Geographic: Geographic Scope: United States Geographic Code: 1USA United States
Legal: Statute: Health Insurance Portability and Accountability Act of 1996
Accession Number: 195319423
Full Text: Robert, a board-certified hospital chaplain assigned to the cancer center of a large community hospital in the Midwest, receives a handwritten note from Jennifer, the daughter of a patient, Gloria, who died two years earlier. Jennifer's parents were divorced when she was in her teens. She subsequently lived with her father on the East Coast, where she continued to live as an adult. She is now in her midtwenties. According to her note, bitter "family dynamics" had prevented Jennifer from being with Gloria when she was dying. Jennifer writes that one of her siblings told her about their mother mentioning "wonderful visits" with Robert during her hospitalizations. She asks Robert if it would be possible to talk with him about Gloria's last days. As she writes, "I would love to know something about this time in her life."

Robert is uncertain about what to do. On the one hand, as a hospital employee, he is bound by HIPAA, which protects the privacy of health information, and by the hospital's own confidentiality policy, which allows patients to designate which individuals may--or may not--be given information about their health. However, this patient is dead. And this patient's daughter is not requesting health information. Robert believes Jennifer is attempting to come to terms with her mother's death and with her own feelings about her mother. Having cared for many patients near the end of life, he is accustomed to caring for the family, too.

Robert remembers Gloria and her family well. He cannot recall her ever stating that she wanted their one-on-one conversations to be kept private. Nor were these conversations privileged as religious confessions: Gloria and Robert are of different faiths. But don't patients have the expectation of privacy when a chaplain invites them to talk about their deepest concerns?

commentary

by Martin L. Smith

Until Robert learns about any facts to the contrary, he should presume that Jennifer has emotional and spiritual needs related to her mother's dying and death, and that he should reach out to her in her time of need as he would do with other family members of dying and deceased patients. In other words, Jennifer needs pastoral-spiritual care related to her grieving process, and Robert is in a unique position to respond, given his significant role during Gloria's hospitalizations for her cancer care. This creates for him a strong ethical obligation to respond in some way to Jennifer's request.

A central issue for Robert is what limitations to place on disclosing to Jennifer the content of his conversations with Gloria. An argument could be made that because Gloria is deceased, she no longer has the same rights and protections as a living patient. Nevertheless, because there do not appear to be any countervailing and significant values that could only be upheld by breaching her confidentiality, Robert should be careful about what he communicates to Jennifer. Although he may not have formally functioned as Gloria's "confessor" and he does not recall her explicitly stating that she wished their conversations to remain confidential, he should not interpret these facts to mean that Gloria would have wanted him to tell her family every detail of their visits together.

Since Gloria did not direct what Robert could disclose to her family, he should use a "reasonable person" standard for deciding what he should disclose to them. For example, Gloria might have talked to Robert about deep-seated jealousies, anger, or hatreds, sexual indiscretions or chemical dependency problems, or lies and deceits that had become woven into the fabric of her life. She might have received his counsel and advice on these matters without necessarily viewing him as a minister of divine absolution. Most people under ordinary circumstances would not want such aspects of their lives disclosed to even close family members without their explicit consent.

From his visits with Gloria, Robert may already have insights about her relationships with her family members, including Jennifer. How Gloria viewed her relationship with Jennifer both before and after Jennifer moved away may provide a context for Robert's discernment about how best to respond to Jennifer's request for information, while respecting privileged elements of Gloria's communications.

Robert likely does not know what Jennifer knows about her mother's illness and death. When he talks to her, he should inquire about what she knows regarding her mother's medical diagnosis, trajectory of illness, and treatments. Depending on her answers, he might be able to stay comfortably within the boundaries of not disclosing any of Gloria's "protected health information." He should also find out whether Jennifer's siblings provided specific facts or examples related to their perception of the "wonderful visits" that Robert had with Gloria.

But regardless of what Jennifer already knows about these things, Robert should have two primary objectives for his conversation with her. First, he should clearly affirm his desire to respond in a helpful, pastoral way to her need to know more about this time in her mother's life. However, his second objective should be to respect Gloria's right to confidentiality, even though she has died. He should inform Jennifer that because he was Gloria's spiritual care provider and is an employee of the hospital, he may not be able to provide all the information she wants. He should also be transparent about the tension that he feels between these two objectives. Relying on his skills as a certified chaplain, he should be able to respect the limits he is ethically obligated to place on the information he shares with her, while compassionately responding to her bereavement needs.

commentary

by Jon Overvold

As a board-certified chaplain, Robert follows a code of ethics that states that he must adhere to the hospital's policies on patient confidentiality. However, chaplains also have a duty to care for family in their time of bereavement. How can he balance these responsibilities?

Patients speak with chaplains because they believe chaplains are trustworthy and will keep their deepest concerns private. Some patients see chaplains as the most trustworthy health care workers with whom to share personal concerns. The chaplain must always recognize the vulnerability of patients in distress. Disclosures of personal information should only be made with the patient's consent, even after death.

But good care is not practiced in a social vacuum. It depends on good communication, both among health care workers and between them and the patient and his or her family. Those who give good care must be cognizant of the patient's psychological, social, and spiritual needs, as well as the cultural milieu in which the patient lives. So health care workers tend to speak with anyone who has a stake in the plan of care, but within the limits of confidentiality.

Ideally, health care workers discuss goals of care for the terminally ill patient with his or her family present to ensure that the patient's wishes can be followed and the family can support the plan. But if there is conflict in the family, the patient may decide whom to include in the discussion and whom to exclude. In this case, it seems unusual that bitter family dynamics" kept Jennifer away from her mother. If Gloria had ever expressed a wish to be reconciled with Jennifer, the social worker and chaplain could certainly have assisted. But in the course of her care this seems never to have come up, and so one might infer that this was not a concern for Gloria.

We don't know the content of Robert's conversations with Gloria but by her family describing them as "wonderful," we can assume she must have trusted him. Patients commonly discuss deep concerns" related to core values and wishes regarding health care. If Gloria had made some of her wishes known to Robert, would he be obligated in the patient's best interest to convey these to the health care team? Robert could advocate on Gloria's behalf by representing her wishes in the medical record, but he should do so with Gloria's permission.

When the patient is no longer conscious and death is imminent, care of the grieving family becomes a greater concern for the health care team. So it would not be entirely unreasonable for Robert to want to extend care to Jennifer as a grieving family member, but he must do this within limits. Jennifer's request may well be an expression of her grief. Robert can respond to her need for pastoral care without disclosing information by prompting her to recall memories of her mother, or to think about what she would have said to her mother if she could have been there when she died. He can share general observations about Gloria at the end of her life. He can explain Gloria's right to confidentiality and the limits he must respect concerning sharing detailed information. And he can encourage Jennifer to speak with Gloria's other family members and friends--since someone has already shared information with her, perhaps that person or others can give her more.

In a trusting relationship a chaplain can encourage a patient to share personal information with others if it will help the patient and can give the reasons why it would be helpful to do so. If the patient does not consent, the chaplain must honor that request. However, a chaplain can also care for an estranged family member without divulging protected information. Gloria and Jennifer have different needs. The chaplain can respond appropriately to both.
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