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The Myth of Confidentiality
Judy C. Roberts, M.A.
http://www.academyprojects.org/lerobe1.htm
For
hundreds of years the Oath of Hippocrates has served as the
aspirational standard for confidentiality:
Whatever, in connection with my professional service, 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.
This standard has allowed patients to abandon their usual hesitancy
to confess their experiences, concerns, behaviors, ailments,
thoughts and fantasies to their health care practitioner. Their
confidence to make such confessions comes from the covenant of trust
to which we mental health practitioners swear. The confidential
relationship between the therapist and patient has been considered
part of the core foundation for building what we refer to as the
"therapeutic alliance." Our covenant has been that we will serve the
good and do no harm to those persons who seek our help and who trust
us to provide it.
The psychoanalytic disciplines
recently issued a joint statement emphasizing how critical
confidentiality is to the success of psychotherapeutic treatment:
[There are] three ways in which
confidentiality is critical to effective psychotherapy: (1) it
enables individuals to obtain help in dealing with problems or
feelings they may consider too shameful, troubling or socially
embarrassing to share with family or friends; (2) it is critical to
building the patient's trust in the psychotherapist and thereby
fosters the 'therapeutic alliance'; and (3) it is a critical
prerequisite to full disclosure....
All 50 states have in some form
supported the obligation of therapists to maintain patient
confidentiality by passing statutes that require it.
The concepts of privacy,
confidentiality and privilege are related, but it may be helpful to
clarify: The right to privacy is a Western philosophical concept.
Privacy is considered essential to maintain human dignity and
freedom of self-determination. It is the right of an individual to
keep his or her thoughts, feelings, or personal data from being
shared with others. Privacy is not simply the absence of
information about us in the minds of others; it is the control we
have over information about ourselves. Confidentiality, or the
obligation to maintain confidentiality, refers to the general
standard of professional conduct that requires a professional to not
discuss information about a client with anyone. Privilege is a
legal term rather than an ethical concept. The legal system has
always had the inherent power to require witnesses to testify in
court so that the judicial system will have access to all relevant
information associated with a case. However, the law recognizes
that there are certain special relationships that are viewed by our
society as being so important that they deserve protection from such
intrusion. Those special relationships are granted "privileged
communication" status and are exempt from compulsory disclosure,
with limited exceptions. "Special" relationships granted privileged
status in most states are husband and wife, attorney and client,
clergy and confessor, physician and patient, and therapist and
client. Privilege is a right that must be granted by law and
belongs to the client in a professional relationship.
Today the covenant of trust
which we seek to establish with our patients is severely, and subtly
threatened. Over a period of years the right to confidentiality has
increasingly given way to others asserting their "right to know."
As a profession we have failed to educate the public, legislators,
and the judicial system about what takes place in therapy and the
crucial role confidentiality plays in the process. As a profession
we seem to be in denial about this progressive threat. We routinely
reassure outpatients of confidentiality while ignoring the reality
of the erosion of confidentiality.
Christopher Bollas, in his book,
The New Informants, describes the history of the threat to
confidentiality. In the early 60's, child abuse was brought to the
attention of the public. Mandatory reporting laws were passed quite
quickly with no opposition in all the states. During this
politically correct legislative flurry, we professionals were nearly
silent about the impact on the therapeutic process when
confidentiality was no longer absolute. Over time, states have
added stiffer mandatory reporting requirements and penalties--all of
which have facilitated the erosion of patient confidentiality and
patients' ability to trust that confidentiality truly exists. The
original laws of the 60's allowed doctors to determine whether or
not to report child abuse. The current requirement is to report the
"suspicion" of abuse. Instead of laws protecting the
confidentiality of a patient who confides his or her secrets in
treatment, we developed laws protecting clinicians who breach
confidentiality and report their patients to law enforcement
agencies.
In 1974, the landmark Tarasoff
case struck a tremendous blow to the covenant of confidentiality.
The California court system ruled that confidentiality for patients
is not a certainty and must yield to the greater welfare of the
community. The Court's decree that "the protective privilege ends
where the public peril begins" set a new standard of responsibility
for therapists toward the public at the expense of their patients'
assurance of confidentiality and trust.
Professional misconduct and its
investigation also results in the breaching of patient
confidentiality. When a patient files a complaint against his or
her therapist, he or she does so knowing that the therapist will be
legally released from his or her duty to keep confidentiality. The
cost to a patient in these circumstances is not only that of having
to deal with the misconduct of the therapist, but the public
disclosure of his or her most secret thoughts, feelings, behaviors
and experiences which the patient previously disclosed in good faith
to his or her therapist.
We have an appalling legal
situation associated with therapist regulation currently under
Washington State law. If a complaint is filed by a third party who
is not the patient, the Department of Health, which is the
regulatory body for certified clinicians, can and has required
therapists to breach confidentiality even over the protests of their
patients. This has allowed third parties, such as a disgruntled
parent or family member of an adult patient, to force the disclosure
of private patient material despite the fact that the patient has
not filed a complaint and, in fact, has testified that they are
satisfied with their treatment and that they object to the violation
of their confidentiality.
Clinicians celebrated the U.S.
Supreme Court decision in Jaffee v. Redmond (1996), when the
majority decision spoke to the value of confidentiality and affirmed
the right of privileged communication for those patients who are in
psychotherapy. The Justices stated that:
Effective psychotherapy depends
upon an atmosphere of confidence and trust, and therefore the mere
possibility of disclosure of confidential communications may impede
development of the relationship necessary for successful treatment.
Interestingly, within months of
the High Court's announcement of the protection of privileged
communications between a therapist and patient, a district attorney
in Oregon's Lane County ordered the secret taping of a confession
made by an inmate to a Roman Catholic priest. This type of
relationship, that is, priest-penitent, is also considered to be
protected by "privileged" status. The outcry by the Catholic
Church was swift, loud, and admirable:
Taping a confession is morally
and legally impermissible because the priest-penitent relationship
is sacred and protected under the First Amendment. Canon law
forbids any confessor to betray a penitent by any means or for any
reason whatsoever. A confessor who knowingly violates
confidentiality incurs the penalty of automatic excommunication....
[This is unprecedented in American history. They know damned well
that the relationship between a priest and a penitent is sacred.
Would that we as a profession were that confident and bold, as the
legal system appears to be regularly threatening so called
"protected relationships" in their pursuit of their "right to
know"!]
There is a more ominous threat
to confidentiality that has come relentlessly from another
direction: managing health care as a way to control costs has
escalated the demand for information by those outside the
therapeutic relationship. Managed care companies demand whatever
clinical information they want with the rationale that it is needed
to determine their own private definition of "medical necessity."
Insurance companies, HMOs, self-insured employers, etc., are all
asserting their "right to know." Mental health clinicians who
accept third-party reimbursement through care managers are forced to
divulge more and more confidential information in order to justify
treatments.
Insurers have gained virtually
unlimited access to what has traditionally been private information
in at least two ways. When an individual enrolls in an insurance
plan, the application form includes a nonspecific consent for the
release to the insurer of all medical information. Agreeing to the
release of medical information is a condition of enrollment. As
individual reimbursement forms are completed the patient is again
required to sign a blanket release of information. Despite the
reality that the insurance benefit may have been purchased by either
the patient or the patient's employer, the patient's confidentiality
is something he or she must trade in exchange for mental health
treatment.
The fact that most insurance is
purchased by employers for their employees intensifies the
violations of confidentiality. A recent University of Illinois
study found that one half of the Fortune 500 corporations admitted
to using employee medical records in making employment decisions.
Of those corporations who made this admission, 20% stated that they
did so without telling their employees. The practice of the
employer purchasing insurance for their employees, which then allows
the employer access to detailed information about their employees,
is a conflict of interest. But there are no guidelines or codes of
ethics with which to monitor these practices by employers or
insurance companies and so far, the employees have not demanded a
different practice.
Patients who hope to use medical
insurance that is provided by self-insured employers to pay for
their therapy have no legal means to prevent their employers from
having access to their medical records. In fact, it is a common
practice of HMOs to send letters to employers detailing the health
problems of their employees. The U.S. Court of Appeals for the
Third Circuit recently ruled that an employer's right to access an
employee's health records outweighed the employee's right to privacy
in health information. The decision grew out of a case that began
in November 1992.
The South Eastern Pennsylvania
Transit Authority (SEPTA), a self-insured employer, made a request
for a printout from Rite-Aid listing all employees who were filling
prescriptions for $100 or more for the purpose of monitoring
costs. SEPTA pays the health care bills of its employees, and on
that basis demanded the right to look at information about
prescription drug use in an attempt to detect fraud and abuse and to
ensure that the prescription benefits are meeting employees'
needs. When the information arrived at SEPTA, it included
employee's names and social security numbers. The SEPTA Chief
Administratiave Officer noted that a fellow employee was being
treated for AIDS. She casually shared this information with other
co-workers. When the employee found out, he sued for invasion of
his constitutional right to privacy. The Court of Appeals found
that the man had no right to prevent this type of information
sharing and had no remedies under the law. The Court stated that
his right to privacy was no match for an employer's need to control
costs.
The second way insurers have
gained access to what has traditionally been private information is
by co-opting therapists to help gather that information. Nearly
all managed care provider contracts include a requirement that the
health care provider will provide information for a variety of
purposes upon the request of the insurer. When clinicians sign such
an agreement, they become legally obligated to produce records, even
without the patient's consent and despite the restraints called for
in their professional ethics codes.
We must acknowledge that we
clinicians who listen, take notes, and report to the insurance
industry the patient's private communications, are willing
participants in this unethical and counter-therapeutic practice.
All of our professional ethics codes acclaim the centrality of
confidentiality, but we skate out far too glibly from our moral and
ethical obligations by hiding behind the "informed consent" escape
clause. Our patients are being raped of their privacy and the
opportunity for a therapeutic process built on a covenant of trust,
and we participate in that rape.
Insurance companies have become
much more directive with health care providers, sometimes dictating
what questions patients are to be asked, along with a requirement to
document the patient's responses. A physician practicing adolescent
medicine has reported that as a part of "well visits" he is
instructed to ask and document questions such as, "Do you have sex?
Do you masturbate? How are your relationships with your parents,
friends? Have you ever been pregnant? Have you had an abortions"
This information becomes a part of the adolescent's medical records
and then belongs to his or her parents' insurance company and will
likely be made available to a national data bank.
The privacy of personal medical
information has in the past been protected primarily through state
and common law, and through the threat of litigation against health
care providers who do not meet their ethical and fiduciary
responsibilities to their patients. Insurance and managed care
companies and self-insured employers are not regulated by such laws,
are not constrained by any ethics codes, and offer only a
contractual relationship rather than a fiduciary responsibility to
their subscribers or employees. Only 34 states have confidentiality
laws that protect an individual's personal health care information.
Under current federal law, an individual has more protection of
their video rental records than they do their health care
information. A quotation from Benjamin Franklin seems appropriate
here:
Three may keep a secret, if two of them are dead.
The United States Congress has been a quiet participant in the
erosion of patient confidentiality. In the past few years,
legislators have proposed and considered a variety of health care
bills that have redefined the term "confidentiality." All of the
health care reform legislation introduced at the federal level has
included a plan for the expansion of the "circle of
confidentiality." All of this legislation required the creation of
a National Health Care Data Bank and mandated the reporting of every
clinical encounter. The proposed legislation has stipulated that
healthcare providers were to be fined for each patient encounter
that is not reported. Federal legislation is moving more in the
direction of abandoning confidentiality altogether. They now define
the confidentiality circle to include a large number of "authorized
users" and/or "trustees." The list of "authorized users" is long
and includes employers, insurance companies, data clearing-houses,
government agencies involved in health care and law enforcement, and
commercial information processing corporations. The authors of an
Institute of Medicine Report stated that the number of parties with
a potential need to know was so large that they would not even
attempt to provide a complete list.
An article in Newsweek suggested
that "the goal is to develop a birth-to-grave medical record on
every man, woman and child in this country." With the rapid growth
of information technology, a national, comprehensive, computerized
medical database is certainly feasible. Current technology could
make our entire health history readily and immediately available
both to those seeking to save our lives and to those whose intent is
totally self-serving. Not surprisingly, major contributors to
these legislative proposals for the establishment of such a national
data bank have been AT&T, IBM, Microsoft, and the financial
reporting companies of Equifax and TRW. The Kassebaum-Kennedy
Health Insurance Portability and Accountability Act of 1996 ...
contains a section entitled, "Administrative Simplification." In
effect, it makes the right to personal medical privacy subservient
to the interests of the electronic data industry in administrative
convenience. No privacy standard can be adopted unless it first
serves the purpose of reducing administrative costs. Once
implemented, the creation of large, centralized medical records data
banks will forever make it impossible to give patients the guarantee
of real confidentiality. We will be told, of course, that our
records are confidential, but what will be meant is, it is
accessible to all in the "circle of confidentiality."
The Vermont Psychiatric
Association issued the following statement in a 1995 position paper:
Computer technology rather
than patient needs is determining the form of health reform and the
laws to protect privacy.... The right to privacy is more threatened
now than at any previous period in history. The art of healing is
being replaced by the business of medicine, and medicine is becoming
a commodity to be bought and sold according to the standards of
corporate life.
Computerization so extends access to the clinical record, that the
patient may never even know that they have suffered an injury. They
may only know that insurance has been denied, that a job application
was refused, or that a promotion was not given or that a claim for
disability is challenged by an employer.
Privacy and confidentiality, the foundation of the covenant of trust
in the therapeutic alliance, is viewed quite differently by those
advocating for expanding the "circle of confidentiality":
The notion of proprietary information is an archaic model. We
should share information for the benefit of everyone.
Medical-record information belongs to the patient, but you have to
allow the individual to share it within an agreement. We need to
overcome the barriers of confidentiality and privacy so the record
goes from commodity to utility.
Recent media reports are already giving us hints about what we and
our patients should expect when we disclose confidential patient
information: At a Boston clinic, federal auditors demanded the names
of patients seeking confidential AIDS treatment. After they had
been given the names of the AIDS patients, they released them to
other agencies. The Harvard Community Health Plan, a Boston HMO,
admitted to routinely entering detailed notes of psychotherapy
sessions into its computer records, which made them accessible to
all clinical employees.
In Maryland, which became the
first state to implement a state-wide medical database system, eight
Medicaid clerks were prosecuted for selling, computerized record
printouts of recipients' financial resources and dependents to sales
representatives of managed care companies. In Miami, state
officials fired a public health worker who used a confidential list
of people with AIDS and RIV to screen potential dates and offered to
do the same for friends at a bar.
Obviously it is not possible to
protect the confidentiality of medical records by simply adopting
rules against their misuse. It is imperative that we anticipate
that persons who have access to records will misuse them. Misuse is
even more likely when large numbers of persons are made part of the
"circle of confidentiality."
So, what of our covenant of
trust? The reactions of our professional disciplines to the
antithetical political and corporate climate are mixed. Nine
professional organizations representing more than 600,000 health and
mental health professionals issued a "Bill of Rights" in February
1997, to protect individuals seeking treatment for mental illness
and psychological and substance use disorders. The document
reflects the joint concern of mental health professionals that
people with psychological disorders, mental illnesses and substance
use disorders are not being well-served in today's rapidly changing
health care system. The Bill of Rights addresses the issue of
confidentiality with this statement:
Individuals have the right to be
guaranteed the protection of the confidentiality of their
relationship with their mental health and substance abuse
professional, except when laws or ethics dictate otherwise. Any
disclosure to another party will be time limited and made with the
full written, informed consent of the individuals. Individuals
shall not be required to disclose confidential, privileged or other
information other than: diagnosis, prognosis, type of treatment,
time and length of treatment, and cost. Information technology will
be used for transmission, storage, or data management only with
methodologies that remove individual identifying information and
assure the protection of the individual's privacy. Information
should not be transferred, sold, or otherwise utilized.
It is difficult to know how to
interpret such a document issued by the major professional
organizations, when those same organizations are also courting
managed care companies and advocating for their members' inclusion
on provider panels whose contracts require the members to violate
the above paragraphs in the Bill of Rights. Those same
professional organizations appear to take a stand for maintaining
confidentiality, but then re-write their ethics codes, adding
phrases such as, "...except as required by law," that permit
breaching confidentiality. Our professional organizations are, in
effect, allowing politics to determine our professional ethics. The
American Medical Association recently issued the following policy
statement, which sounds hopeful at least on the surface.
The AMA 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.
All of these kinds of statements
need to translate into some action. Corporate America has insisted
they need to know the intimate details of our patients' thoughts,
feelings, fantasies, and behaviors to determine the precise number
of therapy sessions which are optimum for our patients--of course
they have never met our patients! They have whispered in the ear of
our legislative system and convinced it of the merit of national
data banks filled with the details of our patients' lives. Just a
few short years ago most members of our profession would have
considered such a breach of the sanctity of the patient-therapist
relationship an ethical offense. Many clinicians now consider it
only a paper-work nuisance. For clinicians new to the field, this is
an accepted part of practice, not an ethical or moral concern.
The question we as
clinicians--those of us who still carry a dim torch--bound by our
covenant of trust, must answer is " Are we maintaining and/or
perpetuating confidentiality, or simply the myth of
confidentiality?" If we honestly believe it is our responsibility
to do no harm to our patients and to prevent future harm, we must
take a public stand against the destruction of the covenant of
trust. At the very least--a minimal ethical standard--we must
provide a truly informed consent to our patients. This requires us
to be completely honest about confidentiality limitations and
information about what some of the possible outcomes might be for
the patient, given the information that will be passed on to the
insurance company. One therapist has added the following to her
disclosure statement: "Should you elect to use your health
insurance benefits to pay for psychotherapy, your diagnosis,
symptoms, substance abuse issues (if any) and history will become a
part of your permanent medical records. These records are often
accessible to other insurance companies and on occasion can be
accessed by employers and private investigators for credit
reports." A more succinct approach is used by a California
psychologist: "If you pay me directly, everything's between us. If
you use managed care, there's just no confidentiality."
In the current cultural climate,
clinicians might actually do well to "Mirandize" their patients
prior to their first session:
1. You have the right to remain
silent.
2. Anything you say can and will be used against you.
3. You have the right to talk with a lawyer and have him present
with you while you are in therapy.
4. If you cannot afford to hire a lawyer, you probably ought not to
begin this process.
5. You can decide at any time to exercise these rights and not
answer any questions or make any statements.
I wonder how many patients would
actually proceed with therapy.?
As confidentiality concerns have
gained our attention, the Oath of Hippocrates has frequently been
quoted as the historical basis for preserving patient
confidentiality. The portion that is typically quoted is this:
Whatever, in connection with my professional service, 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.
The next sentence is generally omitted. It is too bad. The
strength of it conveys just how seriously Hippocrates took his
oath: While I continue to keep this Oath unviolated, may it be
granted to me to enjoy life and the practice of the art, respected
by all men, in all times. But should I trespass and violate this
Oath, may the reverse be my lot.
*
From the
point of view of the Legal, Ethical, and Professional Issues
Committee, Judy Roberts’ frank account of the obliteration of
confidentiality in the current "health-care delivery system" is an
excellent summary of the dangers facing individuals seeking
psychotherapy paid for by third-party payers and of the acquiescence
of our professional organizations in the erosion of privacy and
professionalism. This article was first published in the newsletter
of the National Coalition of Mental Health Professionals and
Consumers, a group that works to bring public attention to the
problems and abuses in the current health care system and to find
workable alternatives to managed care. While the Academy rejects the
premise that psychoanalysis is health care (seeing it as a means of
self-exploration and understanding rather than a "treatment" for
"mental disorder"), we agree with Ms. Roberts' assessment of the
current situation and strongly support her argument that such
breaches of confidentiality are inherently unethical.
*
Judy C.
Roberts, M. A., is a Certified Mental Health Counselor in private
practice in Seattle, where she also teaches professional ethics and
law at Antioch University and is Ethics Chair for both the Seattle
Counselors' Association and the Washington Mental Health Counselors'
Association. This paper was first presented at the Sixth National
Clinical Conference of the National Institute of Psychoanalytic
Education and Research in Clinical Social Work, September 27, 1997,
which took place in Seattle, Washington. It is reprinted here with
permission.
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