Risk Areas
Advance Directives
When patients lack legal capacity to consent to care, it can be difficult to create treatment plans. Fortunately, advance directives can elucidate a patient’s wishes. But how do you verify a directive’s authenticity? What if the directive did not anticipate medical advances? When patients amend their advance directives, how can providers know if the amendment is valid? What if there are conflicts between multiple directives? And what if the patient does not have an advance directive at all?
Breach Response
When it comes to medical records, patients enjoy numerous privacy protections. Unfortunately, privacy breaches do happen. What constitutes a privacy breach? Which breaches require patient notification? When must providers publicly announce a breach? Is the improper disposal of a medical record a per se privacy breach? Does a vulnerability in your electronic records system require a breach report to the federal government? Can providers breach a patient’s privacy even when coordinating care?
Capacity to Consent
Who decides whether or not a patient has the capacity to consent to medical care? What is the “test” for capacity? How often should practitioners assess their patients’ capacity to consent? How does medical consent work when a patient is sometimes lucid and sometimes disoriented? Can inebriated patients refuse medical care that they desperately need? Can unconscious patients communicate a refusal for care through medical bracelets?
Confidentiality
Few areas of healthcare law are more confusing than confidentiality. Do different types of health information get different protections? When can providers disclose information without a patient’s consent? What information can healthcare providers disclose to law enforcement? Do deceased patients have privacy rights? If a patient is experiencing an emergency, which rules apply? Does the media have a right to patient information when the patient is a public figure, or when the medical information is a matter of public interest?
Conservatorships
Some patients will never achieve or regain enough capacity to make their own medical decisions. In such cases, who steps into their shoes? What if no one is available to “speak for the patient”? How do providers know whether or not the patient has a conservator? Who can petition for a conservatorship? How long does it take to match patients with conservators? Do conservatorships last indefinitely, or must courts regularly renew them? Are there different types of conservatorships?
Correctional Care
The Eighth Amendment protects prisoners from cruel and unusual punishment. But does that guarantee them healthcare? If so, what types of healthcare? What about “elective” procedures? What if an inmate is refusing medical care—does the facility have a duty to intervene? Can correctional facilities refuse to accept an inmate whose medical condition may jeopardize the health of others? Do inmates have a right to medical privacy? Do they have a right to medication-assisted treatment (MAT)? Which healthcare laws apply in juvenile detention centers?
Court Orders
How should you respond to a court order? What about a subpoena? What’s the difference? Can patients block providers from complying with court orders? Are patients entitled to notice when a court or attorney seeks their medical record? How does HIPAA apply in open court? Can courts order providers to force medical care on patients who don’t want it? What if a court wants you to gather forensic evidence on your own patient? Do criminal courts have different rights to information than civil courts?
Involuntary Holds
If your patient is a danger to self, others, or gravely disabled, what duties do you have as a provider? What if the closest psychiatric facility will not accept your patient? Can voluntary care turn into involuntary care? At what point in time does the involuntary hold clock officially “start”? Can you place your California patient with a facility in another state? Can facilities reject patients who do not arrive with a “wet-ink” copy of the hold application? When must you release a patient who does not want further treatment?
Mandated Reporting
Which types of abuse, injuries, and medical conditions must providers report? What if a patient suffered abuse decades ago—could a reporting duty still exist? What if a patient suffered abuse in a different country—could a reporting duty still exist? What if a provider suspects abuse, but can’t prove anything has happened? How quickly must practitioners make their reports? Is anyone else entitled to see mandated reports, like a parent or a spouse? What if the patient does not want you to file a report that you believe you must file? What if you’ve made a report, but no one is investigating the situation?
Minors’ Access to Care
When can minors access care on their own? Who controls a minor’s medical record—the minor patient, the parents, or both? Which types of healthcare can “self-sufficient minors” access? Do parents always have a right to be involved in their minor child’s care? When parental consent is necessary, how does custody come into play? What if one parent ok’s treatment, but the other does not? Do stepparents have a right to be involved? Who makes medical decisions for minors when the parents cannot be reached? What if a minor needs treatment, but the parents refuse to authorize it?
Multidisciplinary Teams
Can a provider disclose health information to a patient’s social worker? What about a patient’s probation officer? Do different confidentiality rules apply when teachers are part of multidisciplinary teams? Do homeless shelters have a right to access their guests’ medical records? Does everyone on a multidisciplinary team have to follow HIPAA, or just the healthcare providers? Can multidisciplinary teams rely on one release of information from the patient, or does each team member need a separate release of information?
Patients’ Rights
Can patients leave the hospital any time they like, even against medical advice? Alternatively, what if a patient refuses to leave your facility after discharge? Which due process rights apply to patients on involuntary holds? Can involuntary patients refuse care? Can you prioritize patients by their ability to pay? Do patients have a right to treatment when they arrive at your facility, or can providers “turn down” patients? What are California’s laws around the discharge of patients who are experiencing homelessness?
Social Media
What if an employee takes a selfie with a patient, then posts it to social media? Is that always a confidentiality breach under the law? Can an employer fire an employee over a private social media post? What about the First Amendment? How do you respond to a bad online review about care you provided? Can you sue a patient for defamation? If you want to feature a patient’s story on your website, which laws apply? What if a patient tries to “friend” a provider—accept, reject, or ignore?
Tarasoff Warnings
How, exactly, do you discharge your “Tarasoff duty to warn”? What if you don’t know how to contact the potential victim? Does it make a difference if the potential victim lives thousands of miles away? What types of threats create a Tarasoff duty? Does a Tarasoff duty automatically trigger an involuntary hold? Do Tarasoff duties ever attach when a patient is a “danger to self”? Beyond Tarasoff, which other cases and statutes affect a provider’s duty to warn? Do providers have a duty to warn when they hear about a threat secondhand?
Telehealth
Telehealth is becoming more popular and ubiquitous by the day. Which laws govern telehealth? Which technological safeguards do those laws require providers to meet? Can a provider in Europe treat a patient in California? If so, will insurance pay? Is telehealth any different than an ordinary phone call from your physician? Is it any different than a text message from your physician? Should providers record the video chats they have with their patients? What if your telehealth platform is storing information about your patient without your patient’s knowledge?