Can Doctors Tell Family When A Patient Needs A Guardian?

Certified as an elder law attorney by the National Elder Law Foundation under authorization of the Pennsylvania Supreme Court

Certified as an elder law attorney by the National Elder Law Foundation under authorization of the Pennsylvania Supreme Court

Let’s suppose you are a doctor, or other similar health care provider. Every time you see your patient Joe his memory has worsened.

Joe struggles to recall whether he took his medications this morning, and if so, what they were. He used to ask about your children, but now he seems not to recognize you. Yesterday he left his coat – containing his wallet and keys – in the waiting room.

You believe Joe now needs someone to look after him.

Can you tell the family?

If a family member or friend of Joe’s calls to ask whether you think he needs a guardian, can you answer the question?

Thankfully, the regulations under HIPAA (the Health Insurance Portability and Accountability Act) provide an answer.

In certain circumstances, HIPAA allows a health care provider to furnish information relevant to a patient’s care to “a family member, other relative, or a close personal friend” of the patient, or to “any other person identified” by the patient for involvement in health care matters.

One circumstance appropriate for such disclosure is when the patient agrees to disclosure, or at least does not object when provided the opportunity. For example, if Joe brings his caregiver daughter to his appointment, he may agree to let you discuss his condition with her.

A health care provider may also make this type of disclosure if the patient is unable to agree to disclosure “because of the individual’s incapacity” and the provider determines that “disclosure is in the best interests of the individual.” In that case, disclosure may be made even if the patient is not present and has not agreed.

In either of these circumstances, the provider may “disclose only the protected health information that is directly relevant to the person’s involvement with the [patient]’s health care.”

(The regulation discussing these circumstances may be found in the Code of Federal Regulations at 45 C.F.R. §164.510(b).)

You can therefore tell an appropriate person in Joe’s life that you believe Joe can no longer make and communicate decisions effectively and is unable to manage his financial resources or meet essential requirements for his physical health and safety.

So HIPAA not only protects Joe’s patient information when he has all his mental faculties, but also allows his doctor to notify an appropriate person when Joe has lost capacity and needs guardianship.

When you see Joe next, you may have more peace of mind knowing that someone else is in charge of his finances and health care decisions.

A version of this blog post originally appeared in the Western Pennsylvania Hospital News.

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