What's Wrong with Health Privacy?

Abstract

This chapter seeks to identify some of the reasons why "privacy" remains so contentious. Here I suggest several possible answers ranging from "micro" issues such as what we understand by health privacy to more "macro" and operational issues as we seek to protect health information. First, lawyers have made consistent errors in the terminology applied to the protection of medical privacy; second, both the legal and ethical domains have failed to apply a consistent and robust rationale for health privacy, leaving it prey to consequentialist thought and policy; third, the declining importance of the physician-patient relationship as the touchstone for obligations, particularly confidentiality, has created a "rights" vacuum; fourth, the health information revolution truly is revolutionary in its reach and its concomitant threats to privacy and confidentiality; and, finally, as privacy regulation increasingly lies in the sphere of governmental command-control regulation, it has joined the list of targets in the professionalism-market-regulation conflict over millennial healthcare delivery.

Keywords: health law, privacy, confidentiality, bioethics, health policy, HIPAA