Nurses generally have a duty of patient confidentiality imposed by the patient confidentiality provisions of HIPAA. The HIPAA Privacy Rule provides federal protections for personal health information known by nurses, doctors, and health organizations. HIPAA also gives patients a variety of privacy rights regarding their medical information. At the same time, the Privacy Rule is balanced so that it permits Sexual Assault Nurse Examiners (SANEs) to disclose the patient/victim’s personal health information when it is needed for patient care or other important purposes.
A court proceeding is the most common instance in which nurses must reveal otherwise confidential information.
There are four situations in which the nurse must reveal information for a court proceeding. These are:
1.) court orders,
3.) discovery requests, or
4.) the patient giving explicit written permission for the SANE to reveal the information.
A Court Order is an order from a judge or qualified legal tribunal.
If a nurse receives a court order, a subpoena accompanied by a court order, or discovery request accompanied by a court order, the SANE needs no further assurances and should readily reveal the information requested. If the SANE receives a subpoena or a discovery request that is not accompanied by a court order, the SANE should be provided with “satisfactory assurances” from the party seeking the protected health information that reasonable efforts had first been made to ensure that the victim/patient was given notice of this request.
The "satisfactory assurance" requirement can be fulfilled either through a “Notice to Consumer” document or, in the alternative, a written statement demonstrating that:
1.) The requesting party made a good faith attempt to provide written notice to the victim/patient.
2.) The notice included sufficient information about the judicial proceeding to permit the victim/patient to raise an objection in court.
3.) The time for the victim/patient to raise objections to the court elapsed without the victim/patient filing an objection.
The nurse’s clinic, hospital, or practice setting most likely has policies detailing who within the organization must be involved in responding to subpoenas, court orders, and discovery requests. If the attorney issuing the subpoena or discovery request does not contact the nurse’s health agency or organization, the SANE should contact the attorney for in order to clarify what specific records are being requested and what the nurse is being asked to testify about.
SANEs may be required to reveal medical information in both criminal and civil cases. They might be called to testify by the prosecution, the defense criminal attorney, the perpetrator’s civil defense attorney, or by a victim-plaintiff’s attorney.
A SANE may also be called as either a lay or expert witness. A lay witness testifies to the facts that he or she observes. This includes relating what the SANE saw or experienced with respect to the patient. An expert witness relies upon specialized knowledge, skill, or training. Thus, if the SANE is called as an expert witness, the SANE will be testifying based on his or her knowledge and professional skills. The subpoena should explain why the SANE’s testimony is needed and what type of case in which he or she will be testifying. If it is unclear from the plain wording of the subpoena, it is best to contact the attorney requesting the information to clarify the purpose of the testimony.
It is important to properly respond to court orders, subpoenas, and discovery requests. Failure to do so can end with the SANE charged with criminal or civil contempt.
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*NICCSA is a project of the Southwest Center for Law and Policy (www.swclap.org) This project is supported by Grant No. 2017-SA-AX-K001, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.