>Freedom of speech based on facts should be universal.
To be fair that's not what we have in USA. For instance, a nurse who never even signed a private privacy agreement with anyone (unusual, but could happen) could violate HIPAA if they factually tell a patient's spouse the patient is being treated for AIDS and they ought to watch out.
Yes, they could and most definitely would be. The case you describe is one of the reasons it’s that way.
For what exactly would this fly-by-night nurse be telling me to “watch out,” in relation to my partner who’s living with and being treated for HIV?
One hopes this nurse, being medically trained and apparently working with vulnerable populations, understands the efficacy of the modern HIV therapies the patient is receiving. That, when managed, HIV is not transmissible by conventional marital means [0]; and that, until recently at least [also 0], concerted public health efforts have meant that most anyone who seeks medical attention ends up on those modern therapies.
That said, I hope said nurse would catch me in a charitable mood rather than a litigious one.
[0] https://www.cdc.gov/global-hiv-tb/php/our-approach/undetecta...
This is an entirely different argument than the fact at hand, which is making the factual statement is illegal.
You're just explaining why stating the fact should be illegal.
>[0] https://www.cdc.gov/global-hiv-tb/php/our-approach/undetecta...
I said AIDS, not HIV. I am no AIDS expert but I would be shocked if a large portion of people AIDS had no detectable viral load, while people with HIV commonly do not have detectable one. Wouldn't people with no detectable viral load generally not being exhibiting AIDS?
In that case—and in re-reading the comment you were responding to—I think I’m agreeing with you and that I should have read more carefully before getting my dander up :)
It sounds like we’re agreeing that you’ve given a good example of why it both is and should be that way.
And that, in US jurisprudence anyway, speech tends to be allowed unless there’s a broader social interest that’s served by protecting the specific categories of facts in question.
With the slight caveat that I’m not sure that “should watch out” is a fact, it sounds like an opinion to me (and one that’s potentially unsupported by the facts). In fact, don’t people governed by HIPAA still have a duty to report situations of actual or likely physical harm—for example if a minor presents with signs consistent with abuse [0]? Or even, in your example, if the provider became aware that the HIV-positive patient, out of malice or negligence, were declining treatment, exhibiting substantial viral load, and asserting that they intended to continue with behaviors that put the partner at risk?
[0] https://www.hhs.gov/hipaa/for-professionals/faq/2098/if-doct...
How could that happen exactly? In what circumstances could a nurse end up working for (or even volunteering for) a HIPAA covered entity without signing a privacy agreement?
And the privacy agreement isn’t required anyway. If you’re a doctor, and you treat your neighbor, you’re bound by HIPAA laws that cover the arrangement. All a privacy agreement really does is give the clinic a hope of being found not liable in a lawsuit or government action: “see, we have it in writing that the nurse knew this was illegal! Blame them, not us.” Even without the agreement, the practioner is still legally obligated to obey HIPAA.
And as a side note: sue the hell out of the hypothetical nurse spilling the beans on a hypothetical AIDE patient. Why? Because if you don’t, then other people who suspect they might have HIV are going to avoid going to the doctor, resulting in more deaths for them and their lovers.
I'm not sure if it's required, but it's a common retort used to argue why someone thinks HIPAA is a private contract law rather than regulation of factual speech, so I prefer to just nip that scenario in the bud from the get go.
In any case I wasn't arguing for or against regulating factual speech. Only pointing out that it is done in the USA. This seems to get peoples feathers real ruffled, for whatever reason.
Hah! Ok, fair, I could see that. There are sooooo many misunderstandings about HIPAA that make me cringe every time I hear them. “I can’t tell you if I’m sick. HIPPA!” “It’s illegal for you to ask me if I’m vaccinated. HIPPA!” “You can’t bill me for this. HIPPA!”
It’s like the medical version of a sovereign citizen legal theory, where it simultaneously applies to everything and nothing, depending on what’s most convenient at the moment.
It's partially because it's so complicated.
I was a licensed healthcare professional and even I was shocked when my medical information was given to police without a warrant, a legal arrest, and without my consent. As it turns out, totally legal.