AVOIDING LIABILITY BLOG

Confidentiality

Avoiding Liability Bulletin, Ethics and HIPAA, Mental Health
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Avoiding Liability Bulletin – May 2013

… While confidentiality is generally considered to be a cornerstone of psychotherapy, most mental health practitioners realize that there are multiple exceptions to confidentiality – some of which are required and some of which are permissive. Since it is the individual states that regulate the practices of medicine (including psychiatry) and the various licensed professions that provide mental health care, one must generally refer to state laws or regulations to determine the extent of confidentiality and the exceptions to confidentiality. Of course, HIPAA and its implementing federal regulations also affect the duty of confidentiality for those mental health practitioners who either are employed by a “covered entity” or for those who are themselves considered a “covered entity” under the “Privacy Rule” (the federal regulations implementing HIPAA).

I have long believed that if a prospective patient were informed about all of the exceptions to confidentiality (and in greater detail then appears below), this might scare the consumer away from seeking mental health care. Each state and each profession regulated within the state is governed by its own laws and regulations regarding not only the duty of confidentiality, but the disclosures regarding confidentiality that are required to be made to a patient before the commencement of treatment. Additionally, the ethical standards of the various mental health professions may contain other requirements or suggested behavior with respect to disclosures to be made to patients prior to the commencement of therapy. For the purpose of illustration only, let me explain why some believe that the many exceptions to confidentiality, if fully disclosed to prospective patients, might make some prospective patients a bit uneasy. I rely upon California law for the purposes of the following “tongue in cheek” illustration.

I know how important the privacy and confidentiality of our work together is for you, and I recognize that during the course of therapy you may be revealing very personal and sometimes embarrassing details of your life to me. Full, open, and frank communication is an important factor influencing the outcome of therapy. Before we commence treatment, I do want to inform you that under California law and the ethical standards of my profession, you are entitled to confidentiality in our work together. However, the duty of confidentiality is not absolute. There are many exceptions to confidentiality, some of which are mandatory and some of which are permissive. While most or many of these exceptions may not apply to you individually, I cannot predict with any accuracy what will develop as we proceed with your treatment.

Therefore, in the spirit of full disclosure, I want to inform you of the following exceptions to your privacy and confidentiality – times when I may be required or permitted to make disclosures, at least to some degree, about you or your treatment without your written authorization:

  1. If disclosure is compelled by the child abuse reporting laws – e.g., when I reasonably suspect that child abuse or neglect has occurred.
  2. If disclosure is compelled by the elder abuse reporting laws – e.g., when I reasonably suspect that elder abuse has occurred
  3. If disclosure is compelled by the dependent adult abuse reporting laws – e.g., when I reasonably suspect that dependent adult abuse has occurred
  4. If disclosure is required or permitted because you are in such mental or emotional condition as to be dangerous to yourself or to others
  5. If disclosure is required or permitted when you communicate to me, either directly or indirectly, an imminent and serious threat of physical violence against a reasonably identifiable other
  6. If you sue me for alleged negligence or malpractice, I will share your treatment records and other information with my attorney and my insurer
  7. If I sue you for fees owed by you, the fact of our professional relationship may be disclosed in the lawsuit
  8. If I decide to consult with another health care provider for purposes of your diagnosis or treatment, your treatment records and communications with me may be revealed
  9. In the event of your death, disclosures may be made to a coroner to determine, among other things, the cause of your death
  10. If you file a complaint against me with the state licensing board, I may forward your records and other information to my attorney and to the licensing board
  11. If you file a complaint against me with the Ethics Committee of my professional association, I may reveal your records and other information in the course of that proceeding
  12. If you file a claim for reimbursement with an insurer, I may share information with the insurer about your diagnosis, progress, prognosis, and the treatment plan
  13. If I am ordered by a court to disclose records or information pertaining to you or your treatment
  14. If there is a search warrant lawfully issued to a governmental law enforcement agency authorizing the seizure of your records
  15. If disclosure is compelled by a party to a proceeding before a court or administrative agency pursuant to a subpoena for my appearance and testimony or a subpoena for my records pertaining to your treatment
  16. If disclosure is otherwise required or permitted by law

Please feel free to ask me about any of these exceptions to confidentiality. We can discuss these public policies in more detail if you have any questions.

Again, the above information illustrates that there are many exceptions to confidentiality. While the above examples are based upon California law, each state and perhaps each profession will have its own list of mandatory and permissive exceptions to confidentiality. Therapists and counselors will of course disclose to patients that which is required by state law or regulation, or by the ethical standards of the profession. Practitioners who are “covered entities” under HIPAA will make their required disclosures in the Notice of Privacy Practices that they provide to their patients. Beyond that, practitioners will use their best judgment as to the extent of disclosure necessary or appropriate under the circumstances.

Breach of confidentiality is one of the more common allegations in malpractice claims or lawsuits. Obtaining the patient’s signed authorization to release information to a third party protects the practitioner, provided of course that the disclosures made are consistent with the scope of the written and signed authorization. As described above, however, there are times when a written authorization is not required. How much must or should a patient be told about these exceptions to confidentiality – and to what degree? Can some of the information be provided as the circumstances may dictate, and not necessarily prior to the commencement of treatment? How much are you required to disclose?

ABOUT THE AUTHOR

Richard Leslie

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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