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The Yin to my Yang: Privacy and Confidentiality in the Athletic Training Facility

By Adaeze Teme, JD, PE-ATC

If home is really where the heart is, then the athlete is certainly at home in an athletic training facility.  The notoriety of the facility rivals that of a panic room because of its ability to shelter the athlete’s health information against third parties.  The facility is not merely a functional hub for information gathering; indeed, it is the epicenter of the athlete’s pertinent health history.  Whether it is discussing injury status, treatment or surgery updates, the facility possesses content that must be kept confidential to maintain its integrity and to protect the privacy of the athletes and the Certified Athletic Trainer (AT) in the facility.

In so many ways, confidentiality is the yin to privacy’s yang, and though used interchangeably, they could not be more different in application.  At first glance, the 2 terms seem similar, but understanding confidentiality and privacy is appreciating the legal significance of both terms.

Confidentiality is a core ethical duty in the athletic training profession that is essential to the athlete and AT relationship.  Confidentiality, in this setting, refers to personal information shared between an athlete and AT that cannot be disclosed except by the express consent of the athlete.  Essentially, confidentiality between the athlete and the AT is perpetual or until otherwise agreed to or breached.  Although courts do not expressly recognize a confidentiality privilege between athletes and ATs, they will, however, uphold confidentiality agreements between the 2 parties.

On the other hand, privacy is not just a prerogative, but a protected Constitutional right that grants freedom from interference into a person’s personal affairs.  For instance, there is a reasonable expectation of privacy during pre-participation physicals, as they are conducted in seclusion and away from the public view.  Privacy, as it relates to the athletic training profession, is an obligation to protect the athlete, while maintaining their dignity during evaluation, treatment and rehabilitation.

If you have any concerns about privacy and confidentiality in your athletic training facility, then take a look at the BOC Facility Principles document and Facility Principles Assessment Tool.  There you will find easy-to-use checklists with more information on accessibility, privacy and confidentiality, employee safety, safe handling of hazardous materials, emergency preparedness and more.

*This blog only reflects the author’s views on this subject and not the confidentiality or privacy agenda of the US FDA.

Adaeze Teme, JD, PE-ATC is an orthopedic physician extender and certified athletic trainer.  She serves as Regulatory Counsel at the U.S. Food and Drug Administration (FDA) in the Center for Devices and Radiological Health (CDRH).

Resources

1. Gary Stuart, The Ethical Duty of Confidentiality, ETHICS LAW.COM,  http://www.ethicslaw.com/dutycon.html (last visited Aug. 24, 2015).

2. OHIO REV. CODE ANN. §1347.15 (A)(1) (West 2009); Is there a Difference Between Confidentiality and Privacy? THOMSONREUTERS.COM, http://criminal.findlaw.com/criminal-rights/is-there-a-difference-between-confidentiality-and-privacy.html (last visited Aug. 24, 2015).

3. Jere Webb, A Practitioner’s Guide to Confidentiality Agreements, STOEL.COM, http://www.stoel.com/files/confidentialityagreementguide.pdf (last visited Aug. 24, 2015).

4. “[T]estimonial privilege, is a concept from the law of evidence and present in common law and statutes of the fifity states . . . [that] appl[ies] in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.” Sue Michmerhuizen, AMERICANBAR.COM, http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/confidentiality_or_attorney.authcheckdam.pdf (last updated May 2007).

5. Eric Weiss and Debra Slifkin, Enforceability of Rule 26(c): Confidentiality Orders and Agreements, FEDERATION.ORG, http://www.thefederation.org/documents/weiss.htm (last visited Aug. 24, 2015).

6. Griswold v. Connecticut, 381 U.S. 479, 483 (1965).  Right to privacy as a right to "protect[ion] from ... in the "penumbras" and "emanations" of other constitutional protections.

7. Sanchez Scott v. Alza Pharmaceuticals, Cal.Rptr. 2d 410, 414 (Cal. Ct. App. 2d 2001) (“ [R]easonable expectation of privacy in the medical examination room . . .”).