C. Ethical Standards
Healthcare professionals and criminal justice practitioners have ethical obligations to preserve the privacy, safety and well-being of the people they serve. Even in situations where they can legally share health information, practitioners must often decide whether sharing information is in their clients’ best interest: could disclosure of health- or justice-related information have negative, unintended consequences? Medical professionals have an ethical obligation to “do no harm” to their clients, also known as “non-malfeasance.” Even when authorized and carefully managed, release of sensitive health information about a person’s mental illness, substance use problem, or criminal justice involvement can negatively affect employment, housing, insurance coverage, custodial rights, and right to receive disability benefits, and lead to social stigmatization.
A common ethical dilemma for clinicians when considering whether to share information with justice agencies is the concern that releasing health information could negatively influence the outcome of an ongoing criminal or civil case, lead to more restrictive conditions being placed on their patient, or damage the clinician-patient relationship.
While privacy laws and regulations are designed to minimize these potential risks, agencies engaged in information sharing should adhere to professional standards and ethical principles in addition to complying with relevant privacy regulations. Below is a summary of ethical principles that can be applied to justice-health information sharing.
Fair Information Principles
The Fair Information Principles are universally recognized standards that cover the collection, use, storage, and dissemination of personal information. They are embedded in laws that govern the privacy of health information and provide a good starting point when setting the parameters for information sharing initiative. They are helpful principles to guide information sharing initiatives that involve complicated ethical considerations.
Explicitly define the purpose for sharing information and make sure that all subsequent use of that information is consistent with that defined purpose.
Review how personal information is collected to make sure that you have legal authority, and to ensure that safeguards are in place to prevent unauthorized compilation of personal data.
Adopt a process that ensures any information shared is accurate and up to date.
Limit the use and disclosure of information to the purpose articulated in the purpose specification.
Conduct a risk assessment and develop a method to protect against of unauthorized access or misuse of information.
Inform the individual and public how information is collected, maintained, and shared.
Describe policies and legal rights for individuals to access and amend their personal information.
Instill a formal process to monitor compliance with all of the fair information principles.
Professional Standards on Confidentiality.
There is a range of professional standards to protect sensitive health information. These include professional codes of conduct, clinician licensing statutes, and ethical guidelines for disciplines such as medicine and public health that apply to clinicians working in both criminal justice and community settings. Moreover, some standards specifically address the ethical dilemmas involved in providing health services in jails, prisons, and other criminal justice settings.
The National Commission on Correctional Health Care (NCCHC): NCCHC represents a number of major national organizations in the fields of health, law, and corrections with the joint mission of “improving the quality of health care in jails, prisons and juvenile confinement facilities.” NCCHC provides explicit standards relevant to information sharing, including the management and confidentiality of health records, access to custody information, and the use of informed consents. For further information on NCCHC standards, click here.
The American Bar Association, Standards on Treatment of Prisoners:
The American Bar Association has also established ethical principles for professionals providing and overseeing health services for incarcerated populations.
Part VI addresses Health Care. A few provisions relevant to the ethics of justice-health information sharing include:
- Section 23-6.5 Continuity in Care: This provision maintains that health information should follow a person as he or she is transferred between correctional facilities and when he or she leaves the community.
- 23-6.8 Health Care Records and Confidentiality: This provision states that health information should: (1) be kept confidential in accordance with law and community standards; (2) be kept separate from disciplinary records and other criminal justice information; unless a medical professional decides the information is relevant for clinical evaluation and treatment decisions; (3) not be shared with other inmates or unauthorized corrections staff; and (4) made available to family members with the patient’s consent.
- 23-7.7 Records and Confidentiality: This provision provides guidance on the confidentiality of information related to involvement with the criminal justice system. It limits disclosure of such information without consent to “basic identifying information about the prisoner and information about the prisoner’s crime of conviction, sentence, place of incarceration, and release date.” Consistent with “Fair Information Principle 3, this standard affords the individual a right to review and contest inaccuracies in his or her record. For example, the provision precludes any counselor employed by a department of corrections to disclose any information communicated under the guise of the therapist-patient relationship.
Patient autonomy is the ethical principle underlying a person’s right to make informed choices about his or her care. It is important that information sharing initiatives aim to maximize the ability of patients to participate in decision making about their healthcare.
Maximizing Patient Autonomy in Justice-Involved Populations
Dr. Emily Wang and Dr. Shira Shavit, in collaboration with the San Francisco Department of Health and the Southeast Health Center, established The Transitions Clinic Network (TCN), an innovative clinical model that establishes community-based medical homes for people with chronic diseases returning home from prison.
Patient autonomy and an understanding of the ethical and cultural challenges associated with providing treatment in correctional settings are at the core of the TCN model’s proven success. To maximize engagement with services in the community following release, TCN staff ensure patient confidentiality, foster trust, and empower people to participate in their own healthcare.
By fostering trust and engaging people in their own care, TCN’s approach has significantly improved health outcomes and reduced costly emergency rooms visits for this population following release from prison. Click here for a study demonstrating improved outcomes for those using TCN.