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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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