An ethicist’s pet peeve: People who misuse formal ethics rules to justify unethical or stupid behavior because they never thought about what why the rule exists.
This happens a lot. My favorite example was the famous athlete enmeshed in a scandal. Ay a press conference, he said that he couldn’t answer specific questions because of “atttorney-client privilege,” and not one of the reporters had the education to say, “Huh? You’re the client! The attorney-client privilege prevents your lawyer from revealing what you told him. It doesn’t stop you from revealing anything, you cretin.” In my seminars, when an attendee cites a professional ethics rule as the reason why he shouldn’t do something, I often ask, “And why is that a rule? What’s wrong with what it forbids?” Often, disturbingly often, the individual has no idea.
The New York Times today featured another example: medical providers and others not even subject to the law using HIPAA to avoid giving out information they could and should give out, in mots cases misinterpreting the law to do so. Among the examples in the Times story:
- A retirement home refusing to tell friends of a resident that the resident had died (only health care providers, health insurers, clearinghouses that manage and store health data, and their business associates are covered by The Health Insurance Portability and Accountability Act of 1996. a.k.a. HIPAA)
- A hospital that refused to accept information about a patient’s allergies from the patient’s daughter (Wow: hospitals can receive medical information; HIPAA restricts the ways they can disclose it)
- Another relative of a patient reprimanded by hospital staff for talking about her loved one’s medical problems in the cafeteria, because, she was told, it was a HIPAA violation.
- A minister told a church staff not to announce the names of ailing church members because it was would violate HIPAA (That’s right: he really thought it was against the law to tell congregation that someone was sick.)
- Some providers cite HIPAA to block patients from seeing their own records.
This is why morality alone doesn’t make people ethical, especially if they aren’t very bright. Rules only assist ethics when they are applied with an understanding of what a rule is designed to do, why it exists, and its limitations. HIPAA, for example, is designed to protect the a patient’s privacy in the interests of the patient’s welfare, and involves the information that a caregiver needs to know. When revealing the otherwise protected information is in a patient’s interest, doing so is not necessarily a HIPAA breach. All that is required is an understanding that the patient wants the information revealed to a particular individual. Obviously express written consent is best, but it is not required.
Using rules to do the right thing requires sufficient common sense to know when a rule’s application is hurting others unnecessarily. That usually is a clue that either the rule has been misunderstood, or that the rule is a dud and needs to be changed. Unfortunately and ironically, the same kinds of people who need rules—those who don’t have a firm enough grasp of ethical principles to know intuitively, for example, when a patient’s privacy should be respected and what information needs to be communicated to others for the patient’s own good—are also the ones who are most likely to misunderstand and abuse them.
Ethics Alarms 
What have we come to when a pastor thinks he’s constrained from telling his congregation that a member is sick and asking for their prayers??
You mean: “Are pastors dumber than ever?”
Or more cowardly.
It probably wasn’t the pastor who initiated this. It was probably a physician in the congregation who told the pastor to stop doing it because it violated the law. Most pastors are kind-hearted and trusting people who don’t normally look at a prominent physician in the congregation and assume he or she is an idiot. I have had some physicians tell me not to mention health related information because of HIPPA and I had to explain that I wasn’t bound by HIPPA, but they didn’t believe me.
Yep
Wasn’t HIPAA visited upon us by the LBGT authorities to prevent people from learning people had AIDS? I think the law’s underlying irrational over-reach leads to these sorts of problems. It terrifies people. They become like deer in headlights before its awful beauty.
Before retirement, one of the hats I wore with my agency was HR Director. I was amazed at the breadth of misunderstanding among health care providers about HIPAA. To cite just one example, trying to get a prognosis from a worker’s comp doctor regarding an employee’s injuries or anticipated return to work (a frequent chore) often required an instructive call from the county attorney to overcome the perceived “HIPAA violation.” Maddening.
In Canada, we have something called The Privacy Act, which is similar in idea to HIPAA, but isn’t focused on medical information. It’s used… abused… in much the same way. The question is whether the problem is in a misunderstanding of the law, or a fundamental laziness throwing the law out addresses. I had a co-worker who would (and probably still does) routinely lie to people looking for information citing the Act, and while I used to say “You realize that The Privacy Act doesn’t really apply there” I slowly came to realize that she did indeed know that, but she continued to say it because it was easier than answering the requests honestly.
Welcome to Brave New World America where everything is regulated for our own good. The culprit behind this awful piece of legislation? Well, of course, the “Lion of the Senate” Senator Ted Kennedy.
The government, at least at the Federal level (probably all the way down to city level, as I am finding out) is operating under the assumption that NONE of us has a lick of common sense. Consequently, they are attempting to legislate ethics, which is going to be difficult. Most of our representatives and senators are somewhat deficient in both fields, ethics and common sense.
As a side note, regarding the retirement home refusing to tell friends about a resident’s health, even HIPAA-covered entities are allowed to reveal some basic status information, which is why the new media can report that after a fire “10 people were taken to the hospital, 3 were released, 5 are in fair condition, and 2 remain in critical condition.”
People can’t believe that some laws that place restrictions on certain activity are targeted and limited to certain situations and not wide spread. It’s almost this inherent desire to see another person be subjegated to the same rules we are because we think “it’s not fair”.
Maybe this is Rationalization #51: Law Expansion “It’s Not Fair”
A. Why should I be restricted from obeying the law when they aren’t even subject to the terms of the law?
B. Why shouldn’t they be subject to the same laws and rules I am subject to follow?
This is where “good intensions” go awry. Very laudable to attempt to protect someone’s sensitive medical information. However, the dummies that are supposed to do it, when they are confused about what to do, go into cya mode. I saw enough of this when I was in the military. I am truly surprised that the AMA let this legislation go through.
What’s the difference between ethics and morals?
I have a definition of terms above, right at the top.
https://ethicsalarms.com/rule-book/
It’s the difference between analysis and semantics. Both are useful. Semantics combines analysis with intuition to simplify interactions by attaching labels to a situation and running the labels through an algorithm to get an answer. Analysis differentiates ideas by being more aware of pattern mismatches and constructing more complex patterns in order to generate one that matches the situation the best.
Semantics is good for describing a situation in ways that can be generalized to similar situations, so that the answer can be arrived at quickly. Analysis, among other abilities it has, can track the ways in which an unprecedented situation subverts not just the explicit but the implicit assumptions behind a semantic calculation are not met, and thus why the solution is wrong.
These are two of eight basic skills, and my goal is to get a solid majority of people to learn all of them.
It sounds like laws and rules, even necessary ones, default into cruel masters rather than helpful servants. There are a lot of people who do not accept this.
I deliver newspapers to a retirement community that has a health center. The health center gets a stack of papers and they have a list of who gets them, which they use to distribute them. Obviously I also have a list so I know how many papers to leave.
I remember one time asking for a copy of their list so I could compare it with mine to make sure they matched. The person refused, citing HIPAA regulations.
After I picked my jaw up off the ground, all I could do was shake my head. Sheesh!