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The Death of Therapeutic Confidentiality

Boundaries on privacy are losing out to society's "need to know."

BP22Heber/Wikimedia Commons
Source: BP22Heber/Wikimedia Commons

Once upon a time, when a patient went to see their therapist, they were assured that what was said while sitting on that couch was private. More than that, it was treated as sacred and sacrosanct. Therapy worked, because people could, and did, open up about their deepest secrets and shames, trusting that these things stayed in the room.

I recall a story I was told years ago, of a therapist who died, and left a professional will requiring another therapist colleague, as well another person, to destroy the deceased therapist’s records. These records reportedly contained a seething cauldron of secrets garnered from the minds of many prominent East coast families (the Kennedy name was whispered), and the people tasked with destroying the documents were prohibited from being alone with the juicy and tempting files. Sadly, those days are gone. Rules, laws, processes and billing procedures have whittled away at confidentiality to the point that it is now difficult to assure patients that we can truly preserve and protect their privacy.

Whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret. Hippocratic Oath

The various blows to privacy and confidentiality are numerous and subtle. There’s been no grand movement called the “Destroy Therapeutic Confidentiality Law.” Instead, it’s been the death of a thousand paper cuts, amidst a social move away from privacy, in favor of society’s “need to know.”

HIPAA (Health Information Portability and Accountability Act) protects privacy and ensures access by patients to their records. But, it also opens a number of doors that let confidential information walk right out of the therapy office. A positive change is that now, when a person is in a behavioral health crisis, for instance, is suicidal and in the emergency room, a therapist is now allowed/required to release treatment information without patient permission, in order to coordinate continued care. ER’s call my offices often, looking for medication information and treatment history on patients who end up in the hospital, and we are happy to share that information to help the doctors provide good care to our patients.

But, some of the changes from HIPAA are less helpful to patients: It used to be, when a managed care organization (MCO) asked a therapist to produce notes or treatment documents, for billing or review purposes, therapists could provide redacted, blacked-out notes, or a simple treatment summary. No longer. Under current rules, if an MCO has paid for services, neither therapist nor patient can keep those records from the MCO. And who is it at the MCO that is asking for these records? Typically, bachelor-level care coordination staff, billing and quality staff looking for discrepancies, and rarely, clinicians looking to see if services are appropriate. These are all reasonable and valid needs, but once these documents reach the MCO, they are widely available to a large group of non-clinical individuals. To be fair, these individuals are all subject to privacy requirements just as much as therapists are, but, when you widen the number of people involved, the chances increase of accidental disclosures, data breaches and the possibility of dual relationships where someone at the MCO used to, for instance, date your patient.

There used to be an exclusion for what were called “psychotherapy notes.” Thus, therapists once kept two charts–one with the basic medical record information, another with the notes that contained private, detailed information. But, lawsuits and complaints over the years destroyed this, often for good reasons, and keeping “shadow files” is now illegal. Under HIPAA, while “psychotherapy notes” are still protected, this applies only to a therapist’s scratch notes they might take during a session. Any document produced by the therapist that is entered into the medical record is now subject to release.

Jty33/Wikimedia Commons
Source: Jty33/Wikimedia Commons

The national move to Electronic Health/Medical Records (EMR/EHR) ensures greater document tracking, monitoring, ensures greater compliance with rules and regulations, and facilitates better coordination of services with outside sources (in the future world of “medical homes,” exchange of clinical information between therapists, hospitals and managed care organizations will happen on a very fluid, live basis). But, systems using electronic health records increase the number of people who can access private therapy information. Many EHR systems can limit access to certain parts of the record, so that a receptionist, for instance, cannot call up a therapist’s progress notes on their last session. However, the more integrated, and connected these systems are, the more access people have (and need to have) to this information. In hospital systems such as the VA, and other broad, medical-based systems, there is little ability to create separate “therapy progress notes” from the progress notes used by other medical professionals. Again, all of these systems and professionals are equally subject to HIPAA and confidentiality requirements, but the risk of exposure/release increases by an order of magnitude, from the old days of a private practice therapist keeping notes in their desk drawer.

Nationwide concerns over violence and safety are now prompting greater calls for the release of information to protect the public. Recent mental illness-related violence has led to concerns that therapists should have released more information about individuals they were treating, in order to prevent violence. The Tarasoff case established rules and expectations that if a therapist were aware of a patient making serious, imminent threats towards an identifiable individual, the therapist was responsible to notify not only the authorities, but to make an effort to notify that potential victim as well. Not every state has adopted Tarasoff rules, but the expectation and responsibility is a widely-recognized one, guiding therapists to violate confidentiality, when there is an imminent, realistic risk towards identifiable individuals. But, social concerns over the role of mental illness in mass killings has led to greater outcry for more information to be shared earlier.

The AMA (American Medical Association) believes that: (1) there has been an erosion of the confidential relationships between patient and health professional, which has resulted from growing outside demands for the information shared in this relationship for the purpose of patient care; (2) there is a need to sensitize the public to the intrusions into confidential medical information which can result from increased demands for accountability--substantiating health insurance claims, in litigation, and in medical care evaluation; (3) much of the erosion has emanated from the public, and properly so; however, an overemphasis on society's right to know, at the expense of the individual's right to privacy and confidentiality has resulted, and a better balance is needed.

Social concern about sexual offenses and crimes has led to an insidious diminishment of therapeutic privacy. For years, I’ve told patients who come to me for sex-offense related issues, that I often cannot assure complete confidentiality to them. Unfortunately, such clients are not typically awarded the same level of privacy as other patients, and courts, justice officials and attorneys routinely demand private information about such patients, and lock the patient up if they don’t get it. Sex offender registration laws are a good example, revealing intensely private information about offenders and victims, under a mistaken belief that such information protects society (it doesn’t, sadly, and may make situations much, much worse).

In California, the situation for such patients just worsened. AB 1775 is legislation that broadened the rules of mandated reporting, to now include reporting of any use or downloading of child pornography. Mandated reporting laws require therapists and other professionals to report cases of suspected child (and impaired adult) physical, sexual or emotional abuse or neglect. When a child is at risk, confidentiality is waived, a therapist is required to act to protect that child. Now, under the terms of this legislation, therapists must now also report if an individual discloses they have watched “obscene” material involving minors. This law is creating controversy, because, while of course therapists oppose child pornography, many clients they treat may be in therapy to attempt to refrain from sexually offending against a child, and such a rule may make it less likely for such individuals to seek out help. As my friend, and sometimes debate opponent Rob Weiss argues, viewing child pornography is distasteful, but doesn’t appear to increase the chances of a person acting on those urges-disclosing these acts are unlikely to reduce or prevent sexual offenses.

If a client tells their therapist they committed a crime in the past, whether it is murder, bank robbery, or kidnapping, we can’t violate confidentiality unless there is a person at imminent risk, right now. A colleague once shared with me a story of a therapist who was treating a person, who admitted to committing a murder in the past, and getting away with it. But, another person had been wrongly convicted of the crime, and faced the death penalty. The therapist faced an awful dilemma of violating confidentiality and imperiling their patient, in order to protect the life of an innocent person. These are very serious stakes, and every case is different, requiring careful, judicious consideration.

Confidentiality in the therapy setting is the main reason why therapy works. In this setting, patients can reveal shames, fears, and secrets, and get confidential, nonjudgmental help and support. As the boundaries of confidentiality decrease, people who need help are less likely to seek it out. Instead, they will suffer along in silence and isolation. And sometimes, they may erupt and harm others. There’s currently no evidence that breaking down therapeutic confidentiality truly benefits patients or society. Instead, we are inching away from a long, established history of therapeutic privacy, based on hopeful (wishful) thinking that strong confidentiality is less important than other social and systemic benefits. I encourage therapists and patients to understand and attend to these changes, and to advocate for the importance of protecting information obtained in psychotherapy as “special” for very good reasons.

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