Invasion of Privacy

Article excerpt

Keeping Rx records confidential: A lost cause?

Pharmacists may feel ethically obliged to maintain the confidentiality of pharmacy records. But you may be surprised to learn that there's no common law upholding the patient-pharmacist privilege, and the emergence of the information superhighway will make it even harder to keep the lid on a patient's personal Rx data unless a federal law or new guidelines are put into effect.

That was the message of four pharmacists-attorneys leading a workshop on "Confidentiality: Legal Issues for Pharmacists" during the American Pharmaceutical Association's annual meeting in Nashville last month.

The APhA's Code of Ethics, which was recently broadened to encourage serving patients in "a caring, compassionate, and confidential manner," is "based on ethical considerations, not the force of law," explained John Berger, a partner in Berger & Brown in Torrance, Calif., and adjunct assistant professor of pharmaceutical economics and policy at the University of Southern California. He cited several cases, including a U.S. Supreme Court decision (Whalen v. Roe), which pointed out that there are no federal statutes supporting the confidentiality of Rx records and that properly authorized individuals can gain access to those records. The top court went on to say that although the patient may have some right of privacy when it comes to medical information, this is a matter that can be left up to the states.

According to Berger, only 10 states have legislated a pharmacist-patient privilege, and fewer states have constitutions upholding the patient's right of privacy. That there is no common law defending this right to confidentiality is "shocking to a lot of pharmacists," he said.

A 'duty to show

"As far as the courts are concerned, the patient has little, if any, right of privacy when it comes to government inspections," commented Lisa Batastini of Duane, Morris & Heckscher, Philadelphia. Pharmacists have a "duty" to let inspectors from the Food Drug Administration, the Drug Enforcement Administration, and the state look at their prescription records.

However, if a DEA agent comes into your pharmacy, she warned, make sure that the person has the proper identification or warrant and ask for the purpose of the inspection. "If a DEA agent comes in with only a notice of inspection, and not an administrative warrant, you don't have to let that person in; you can request that he or she get an administrative warrant.... Get the warrant just to protect yourself." FDA inspectors, Batastini added, should carry the proper identification, but they do not need a warrant.

Her advice to pharmacists was summed up in this simple rule: "Without a warrant or proper I.D., do not let just anyone see."

Impact of technology

Looking at the effect of the electronic age on confidentiality, Gary Cacciatore, assistant professor in the Department of Clinical Sciences & Administration at the University of Houston College of Pharmacy, said he believes that the new information technologies offer "tremendous opportunities," but they also create "new legal and ethical issues. …