Thursday, June 16, 2011
Betsy McCaughey of the New York Post describes just how intrusive of patients' privacy ObamaCare will be, but I think the story quickly veers off-course.
Section 1311 of the Obama health law says that private health plans can pay only doctors who implement whatever the federal government dictates to improve "quality." This is the first time the federal government has asserted a broad power to control how doctors treat privately insured patients.Compared to the dangerous possibility of the government deciding to make doctors abide by mistaken guidelines, the concern about embarrassing, but irrelevant information appearing in your medical record is relatively small potatoes, although still worrisome on its own. I am much more concerned about the purpose of such record-keeping.
Before the Obama health law, patients who voluntarily bought insurance shared information with their insurer. Now, government regulators will have access to oversee physician compliance.
The advantage of an electronic medical record is obvious. When you need emergency care, a doctor can get information about your past illnesses, tests and treatments with the click of a mouse. It will reduce testing, save money and sometimes save a life. But there are dangers. [i.e., besides the big one mentioned in the first paragraph of this excerpt --ed]
Mark Rothstein, a University of Louisville School of Medicine bioethicist, worries that the system discloses information that's no longer relevant but could be embarrassing. Your oral surgeon doesn't need to know about your erectile dysfunction or your bout of depression 20 years ago. Nevertheless, such information will be visible. [format edits, emphasis added]
As Daniel J. Solove recently indicated, the problems with such records run deeper than the possibility that such information might be embarrassing:
Another metaphor better captures the problems: Franz Kafka's The Trial. Kafka's novel centers around a man who is arrested but not informed why. He desperately tries to find out what triggered his arrest and what's in store for him. He finds out that a mysterious court system has a dossier on him and is investigating him, but he's unable to learn much more. The Trial depicts a bureaucracy with inscrutable purposes that uses people's information to make important decisions about them, yet denies the people the ability to participate in how their information is used.ObamaCare is already Kafkaesque, and it is so on purpose! We will have no say in whether this information is collected, or in how it is used. If you suffer from an illness or condition and have had the misfortune of having it diagnosed and entered into your record -- but, due to your own research, disagree with how the government wants to treat it -- you will have only the following "choice" under ObamaCare: a treatment you don't think will help, or none at all. (And even this choice obtains only if there is adequate funding or the government deems your case worthy of treatment.) That is, the purpose of this intrusion is to practically have someone watching over your doctor's shoulder while he works.
The problems portrayed by the Kafkaesque metaphor are of a different sort than the problems caused by surveillance. They often do not result in inhibition. Instead they are problems of information processing -- the storage, use, or analysis of data -- rather than of information collection. They affect the power relationships between people and the institutions of the modern state. They not only frustrate the individual by creating a sense of helplessness and powerlessness, but also affect social structure by altering the kind of relationships people have with the institutions that make important decisions about their lives.
And we haven't even gotten to what might happen if other government agencies "need" any of this information for other purposes, yet, and how they might choose to process the data. The possibilities for regulating any lifestyle choice any creative bureaucrat can remotely associate with health boggle the mind, just to begin with.