have held that the confidentiality of the information cannot be breached unless good cause can be
shown to justify the disclosure.133 Further, when disclosure is permitted, it is generally limited in
scope, and there are designated means to disclose the material in the most confidential and limited
way possible.134 The rationale behind medical privilege is similar to that behind attorney-client
privilege—health is so important that patients “must disclose all information in [their]
consultations with [their] doctors—even that which is embarrassing, disgraceful or
incriminating… there can be no reticence, no reservation, no reluctance when patients discuss their
problems with their doctors.”135
The government has also limited free speech by recognizing that financial institutions bear
a duty of confidentiality to their customers. The U.S. Code states, “each financial institution has
an affirmative and continuing obligation to respect the privacy of its customers and to protect the
security and confidentiality of those customers’ nonpublic personal information.”136 The statute
also authorizes governmental agencies to establish appropriate standards for the financial
institutions they oversee to enforce this confidentiality by implementing safeguards.137
There is also a recognized interest in the privacy of students, weighed against the free
speech of an institution. The U.S. Code prohibits funding to schools and other institutions that
have a practice of permitting the release of educational records of students without the written
consent of their parents to individuals other than school officials with a legitimate educational
interest in accessing the records.138 This willingness of the courts to limit what is disclosed about
another person is unique to contexts where the person prohibited from disclosure is privy to
sensitive information about someone, and has a duty to protect that information.
IV. SOLUTIONS: HOW TO ENSURE RESPONSIBLE PARENT PRESERVATION
OF CHILDREN’S RIGHTS
A. A New Theoretical Approach to Children’s Rights
Statutes and the common law reflect a balancing act between children’s best interests and
the rights of parents. Inherent in this balancing act is a compromise of children’s rights to some
degree. The right to parent as a continuation of parental ownership of children is inconsistent with
fundamental rights. Instead, this Article suggests an approach to parenting that would require
parents to function as trustees over children’s future rights while acting in their best interest in
situations that require immediate action.
Ultimately, the property theory of parents and children is inconsistent with the view of
children as having fundamental rights and developing into autonomous decision-makers. When
2016) (“The medical records of patients in state, county and municipal hospitals and medical facilities, and the medical
records of persons receiving medical treatment, in whole or in part . . . shall be treated as confidential and shall not be
open for inspection by members of the public.”).
133 See, e.g., Carr v. Allegheny Health, Educ., & Research Found., 933 F. Supp. 485, 487 (W.D. Pa. 1996); O’Boyle
v. Jensen, 150 F.R.D. 519, 521 (M.D. Pa. 1993).
134 See supra note 130. (This section designates the method for disclosure: written consent is required, and then the
contents of the records can be disclosed to medical personnel “to the extent necessary to meet a bona fide medical
emergency,” or to “qualified personnel for the purpose of conducting scientific research, management audits, financial
audits, or program evaluation, but such personnel may not identify, directly or indirectly, any individual patient.”).
135 Hammonds v. Aetna Cas. & Sur. Co., 243 F. Supp. 793, 801 (N.D. Ohio 1965).
136 15 U.S.C. § 6801(a) (2012).
137 15 U.S.C. § 6801(b) (2012).