Confidentiality – Peer Group Communications

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Avoiding Liability Bulletin – May 2016

When participating in peer group communications, whether a more formal or structured listserv, or an informal group of mental health practitioners, questions or concerns about patient confidentiality may sometimes arise among group members. Some participants may be rather open when sharing information pertaining to a patient or former patient, while others may be more circumspect. With respect to determining whether there has been a wrongful breach of confidentiality, much depends upon the applicable law and the particular facts and circumstances of each situation, but a few general thoughts may be worth keeping in mind.

If the purpose of the disclosures is to help in the diagnosis or treatment of the patient, and if the disclosure is to another licensed person or persons, no authorization from the patient may be necessary. This is the case in many states and for covered providers under HIPAA. I have written about this common exception to confidentiality on several prior occasions. Thus, if there was a group of therapists who regularly shared patient information for the purposes of consulting with their peers to help in the diagnosis or treatment of their respective patients, there would typically be no problem with respect to confidentiality.

While there generally is insufficient reason to share the name of a particular patient, even a revelation of the name might not (see below) constitute a violation, since the entire disclosure was to other therapists for a diagnostic or treatment-related purpose. Those who learn of the name are aware of the importance of confidentiality and may have expressly or impliedly agreed to not further disclose information shared. Moreover, there may be some circumstances where disclosure of the name is appropriate, necessary, or defensible. If for some reason revelation of a name did constitute a technical breach, the likelihood of harm or damage to the patient seems quite limited.

In any event, unless there is good reason to reveal the name of a patient, revelation can easily be avoided. Sometimes, however, sharing the details of a patient’s treatment in a peer group may provide so much detail that the identity of the patient may become known, even if the name of the patient is not divulged. Such a situation could occur when some of the participants in the group are from the same general community or the patient described is well known – in the public eye. It is wise to mask details of a particular situation so that the identity of the patient is well protected. Many details may not be relevant to the diagnosis or treatment and can be changed without jeopardizing the clinical aspects of the case. Masking is often done by practitioners who present case studies to colleagues or to students. Much clinical information is often revealed – but the practitioner is careful to mask the identity of the patient. It is the protection of individually identifiable health information that HIPAA and most state confidentiality laws protect.

The further away one gets from a pure peer group that provides a place for clinical consultation amongst a select group of participants, the more careful one needs to be. This is because the general exception to confidentiality that deals with communications with other health care providers for purposes of diagnosis or treatment of the patient may no longer be applicable or may be compromised by the “presence” of others who are not there to discuss or opine upon the patient’s diagnosis or treatment – albeit that the others are therapists. If, however, the identity of the patient is well- protected or masked, there would likely be nothing wrong with discussing the clinical aspects of the case in the presence of those others.

Whatever the kind of peer group (a clinical consultation group or a multi-purpose group or listserv), the sponsors, leaders, or initiators of such a group would typically discuss or promulgate some rules of operation, issue some cautions, and may seek some form of agreement or promise from the participants as to their expected behavior relative to patient confidentiality.

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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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