Wednesday, July 15, 2009

Are Doctors Violating Patients’ Confidentiality Rights?

This article is also published in the MalaysianMirror as a letter in reply, 16 July 2009

The National Union of Bank Employees (NUBE) had accused doctors of violating their patients' privacy, through various press releases on 13 July 2009.

Doctors are always faced with many dilemmas, when attending to patients who come to their clinics or hospitals for medical treatment, through a third party payer (TPP) mechanism. While we all have a duty and responsibility to attend to patients, with the strictest confidentiality, there are also reality bites which dictate that doctors have to abide by certain technical requirements.

One of these, is to complete insurance forms or Managed Care Organisation (MCO) forms, sometimes even before any medical consultation can begin. Oftentimes, there're also more forms to fill, post treatment or during treatment, estimations of costs, etc. when complications or prolonged stays are anticipated.

However, all of these forms require that the patient i.e. the employee, agree to and sign a formal consent for his/her medical condition and treatment details to be made known to the third party payer, which often serve as independent managers whose function is to help regularise and contain healthcare costs.

Whether this is to be construed as a conditional guarantee letters (GL) is subject to different interpretations by different people. But unfortunately, that is the process, which the employee has to work out, or agree to, with their employers as a benefit of employment. Like it or not, someone has to pay for treatment; even when self-paying, there is that implicit agreement that some payment is expected.

Panel doctors serve a similar function, at trying to keep costs reasonable and within ready checks and balances. However, disclosure of personal information about the employee’s health or medical conditions directly to the human resource department of the employer may sometimes be seen as breaching these confidentiality rules, and must be carried out with great circumspection and care.

The rationale for such disclosure is so that no frivolous or fraudulent claims can then be made, and the costing of some of these treatment schedules can be checked for consistency and that these are done in accordance with regulations and agreed reimbursement guidelines.

This is the reality that is the process of these third party payment schemes, which help to justify charges and reimbursement. Most employers demand such justification.

Strictly speaking, this exchange of information is purely to help the process of transparency and regularity of the billing process. Some insurers have on occasions even denied hospitalisation or treatment suggestions based on their so-called gate-keeping function to help curb cost and over-utilisation. In many instances, doctors have helped to smoothen some of these disputes in favour of the patient (employee).

Our doctors’ Code of Ethics dictates that one's health status and medical conditions are always personal and confidential, thus it is hoped that these third party payers would be willing to apply such strict confidentiality rules when interacting with the employers who are the ultimate paymasters.

Doctors will always support such strict interpretation of these confidentiality concerns, but we cannot be held responsible for what some of these third party payers would do if they breach these conditions, so as to justify payment claims.

While such information helps to put some substance into claims, to facilitate and validate the medical treatment process, it is not intended to and should not be used to disclose personal health records and data to the employers, unless expressly agreed to by the employee or patient.

Of course, it is possible for employers to place the fear of nondisclosure to mean non-approval for the intended medical benefit that is sought for by the employee. However, this arrangement and employer-employee agreement should be strengthened to strictly abide by such privacy concerns, and should never be used for victimization.

The MMA strongly believes that personal details should not ever be revealed to the employer, which may jeopardise their working conditions or promotion aspects. Moreover, when requested to provide medical reports to anyone other that the individual patient, doctors are reminded to stringently adhere by these confidentiality rules, and be very careful about divulging any information which has not been authorised by the patient.

It is good practice to show the patient a copy of the letter or report and allow him or her to keep a copy even, get a signed consent, before sending this off to the employer. Medical reports are almost always given only to the patient, and rarely to his/her designated agent.

Herein lies the problem with these insurance pre-admission or pre-medical check forms, which must be approved prior to the medical process. They must also accompany the bills, but which must always also mandate the patient's permission (as a required signature), usually witnessed in full view of the doctor or his assistant.

How the third party payer then uses this information is unfortunately not within the purview of the doctor. Of course, doctors always support confidentiality and privacy rules, which is every patient's right. Therefore, it is untrue to say that doctors work in cahoots with these insurers and the banking establishment or any employer for that matter, to violate these privacy rights of the employee or patient.

In fact, the MMA fully supports the view (and perhaps through an improved regulatory framework) that protects the patient's personal information such as health or medical status. We support that such information be considered as fully confidential and only used impersonally (without identifying details) for the above disbursement or checking procedures, and should not be divulged to the employers, unless agreed to by the patient concerned.

Are there any circumstances, which allow a doctor or a panel of doctors to reveal their employees’ medical backgrounds to their employers? Without an expressed consent, the answer is an emphatic NO!

Some pre-employment medical check-ups are conditional, and are within the prerogative of the employer, which will usually demand full disclosure of health status and history before confirmation of employment. Such is the right of the employer or employing agency, and is usually made well in advance for the employee to agree to and formally approve before disclosure. Thus, this is a pre-employment agreement that is made in full cognizance and fully consented to, by the employee.

In certain conditions which require prolonged recuperation or when there is a need to modify work conditions, such as following a heart attack, stroke or certain major surgeries, some explanation to facilitate the employer's agreement to such work-related changes may be required. These are often requested by the recovering employee and are fully supported by doctors. In other words, doctors have always been very sympathetic and empathetic to employees as patients, and will always place their interests first and foremost.

Therefore, the statement by NUBE secretary-general J. Solomon that "this is not only a form of harassment but a clear violation of basic human rights and infringes on their privacy...", while understandably frustrating, needs clarification.

However, it is mischievous of NUBE to label doctors as colluding with employers to harass their employees. This is almost certainly never the case. In fact in the past when such requirements were mandated pre-treatment, many of us physicians protested exactly on such confidentiality concerns. It was only then that the Third Party Payers (TPPs), came forward with the requirement of the employee to acknowledge and sign their consent for divulging their medical information to the TPPs, that doctors agreed.

As concerned doctors, we continue to maintain that such information be used strictly to help facilitate issues of cost-checking, medication or investigation consistency, and reimbursement guidelines. No personal medical detail should be disclosed to the employer, which may prejudice the employee’s employability or personal status, or which may be used against the employee.

In many instances, doctors have bent backwards to help and assist their patients to access certain medical tests and therapeutic procedures, which have earlier been denied by their gate-keeping third party payers (TPPs) such as Managed Care Organisations (MCOs) and insurance agencies.

The MMA is also working closely with the Ministry of Health to come up with some comprehensive Regulations and Act to ensure that these MCOs and TPPs function within the remit of the law and thus protect the patient's rights more comprehensively. We understand that the MOH is in the final stages of putting this Act through Parliament.

In the meantime, we urge the banks’ unions to work out more consistent and transparent agreements so as to safeguard their members’ interests, privacy and rights. But please, remember that doctors are your friends and not ogres that we’ve been made out to be!

This article has now been published as a commentary in malaysiakini 16 July 2009


Dr David KL Quek
President, MMA

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