Update – 17 July 2014
This story (below) was first published by ResourcesForLife.com on May of 2014. Since then, changes have taken place to address HIPAA compliance by the media. Law enforcement officers are taking action to protect patient rights — even for those who’ve been arrested. This makes it possible to reprint/repost or reference stories without being complicit in repeating a HIPAA violation. Here is a recent example from Iowa:
“[the suspect] was transported to the University of Iowa Hospitals and Clinics by a Louisa County deputy, but the release did not specify why. Cedar County Sheriff Warren Wethington cited HIPPA, a set of rules governing the privacy of medical information, as a reason he could not go into why the suspect was wanted.” (Source: KCRG.com, 17 July 2014)
For the story cited above, no photo of the suspect was provided to the media. We want to thank everyone in law enforcement and the media who is helping address this issue of privacy as well as the other issues and concerns outlined below in the original article on this topic.
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Overview
News stories about arrests are quite common, and often violate a number of privacy laws and HIPAA regulations. There was recently a story reported by our local media about a person who had some health conditions resulting from heroin use. The police were initially unable to wake the person, who eventually, once awakened, didn’t know how they got there, and began saying they had been shooting up heroin in their SUV earlier in the day. The following information was disclosed in the news story:
- Full Name
- Full Home Address
- Gender
- Age
- Health information including history of drug use
- Photo/Headshot
Disclosure of Arrest Details is Problematic
Here are some problems with the above arrest report:
- Inadmissible Confession. If a confession is obtained from someone who is under the influence of heroin, it’s likely they were not fully aware of their right to remain silent and not say anything that might incriminate themselves. Obtaining money, property, favors, information, or anything else from a person when they are under the influence is not considered consensual. People under the influence of alcohol, marijuana, heroin, or other drugs may be compliant in admitting to things they might not admit to if they were sober.
- Release of Confidential Disclosure. Something a person tells the police in confidence should not be released to the media for public consumption.
- Violation of Privacy. Disclosing a person’s name, address, age, and other personal information will leave them vulnerable to identity theft.
- Hindering Personal Safety. Let’s assume someone has been beaten, harassed, and/or stalked by a person. Disclosing their name and address puts them at risk.
- Use of Photo and Likeness Without Permission. Usually a person would need to sign a release/waiver for their photo to be printed in the paper. However, it’s unlikely people being arrested are given an option to not have their photo appear in the paper.
- Public Need to Know. When police need assistance tracking down a dangerous criminal, it is helpful to have a photo of the person with relevant details so the public can help identify and report anything to the police. This also helps the public stay safe by avoiding contact with dangerous criminals. However, the public doesn’t need to know if someone is having a drug problem.
- Health Concern. Most cases of alcohol abuse and other substance addiction concerns are a health concern and need not involve police. Instead, people who have overdosed from some kind of drug should probably be taken in an ambulance to an emergency room and subsequently to a treatment program, not thrown in the back of a squad car to be incarcerated. To the extent that alcohol and drug use are healthcare issues, detailed reports about people are a violation of their HIPAA privacy rights.
- Permanent Record. While drug diversion programs are available that may drop charges against someone, their arrest record is permanent and the news stories promoted by the media become a part of their permanent history even if court documents are sealed. Even if it’s later proven that someone was innocent, the initial news story will remain for perpetuity.
Something should probably be done about how law enforcement and the media handle arrests and the news relating to them.
