Necessary Secrets Privacy, Confidentiality, and Privilege in Mental Health Services

1. Necessary SecretsPrivacy, Confidentiality, and Privilege in Mental Health Services Gerald P. Koocher, Ph.D., ABPP

2. Values underlying Confidentiality Stigma Trust Privacy Autonomy

3. Stigma • Public fear and superstition • Stereotypes associated with violence and dangerousness • Discrimination against mentally ill is prohibited under the ADA of 1990 (PL101-336)and Fair Housing Amendments Act of 1988 (PL100-430), but still…

4. Trust • Fundamental to the therapeutic alliance • “Effective psychotherapy…depends upon an atmosphere of confidence and trust in which the patient is willing to make frank and complete disclosure…” (Jaffe v. Redmond, 1996)

5. Privacy • Court decisions in regard to procreation, death, and dying, and mental health illustrate the significant societal concern for privacy

6. Autonomy • Competent individuals’ right to self-determination, including the decision to seek, select, or forgo health care

7. Patient consent Other treatment providers Reimbursement Disclosure to patient Disclosures to families Quality control and program evaluation Research Public health reporting Protection of third parties Disclosures to law enforcement Disclosure in court proceedings Typical Exceptions to Confidentiality

8. Definitions • Privacy • Confidentiality • Privilege • Prevents disclosure in legal proceedings • Established by common law, refined by statute and case law • Jaffee v. Redmond et al. U.S. Sup. Ct. [June 13, 1996]

9. Mandated Reporting Child abuse/neglect: • Reasonable cause to believe or reasonable suspicion • Sexual abuse may require additional actions Abuse/neglect of dependent persons: • Elderly • May include financial abuse • Disabled • May allow more discretion • Dangerous driver

10. Discretional Breaches • Lawsuits (seek release) • Ethics complaints (seek release) • Within institution • Treating colleagues • Supervision • Utilization review • Quality assurance

11. Duties to Third Parties • Obligations to payers • Contractual versus non-contractual • Patient’s contract • Non-subscriber parties • Provider’s contract • Targets of violence • Tarasoff and progeny • Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 551 P. 2d 334, 131 Cal. Rptr. 14. (1976) • Risk assessment • Identified target • Protective steps

12. Duties to Third Parties • Family members • Child exceptions • Following client’s death • Privilege can survive death Swidler & Berlin and James Hamilton v. United States U.S. 97-1192 • Client’s executor is “in charge” • Anne Sexton/Martin Orne

13. Multiple Client Therapies • Groups • No privilege held in relationship to other group members • Couples • What is the couple’s contract? • Families • What is the contract? • What will parents allow? • What about break-ups?

14. Confidentiality and Minors • What secrets will parents allow their children? • Contract at outset; but minds can change • Long-term issues • When grown children access their own childhood records

15. Subpoenas and Court Orders • What is a subpoena? • What is a court order? • A subpoena compels a response. • Only a court order can compel a disclosure.