Privacy, Confidentiality, Privilege

1. Privacy, Confidentiality, Privilege Review

2. Privacy Confidentiality Privilege

3. Default Rules • Physician/Patient Confidentiality is available but the Psychotherapeutic Privilege is much more extensive • In Georgia, communication among most professionals in Psychotherapeutic Relationships with Patients/Clients are protected by the privilege

4. Confidential communications; physicians 24-9-40 • No physician and no hospital …shall be required to release any medical information concerning a patient except to the Department of Human Resources…, and where authorized or required by law…, or on written authorization or other waiver by the patient…, or on appropriate court order or subpoena

5. Confidential communications; physicians 24-9-40 • …provided, however, that any such physician, …shall not be liable to the patient or any other person [for release of information]; and, that the privilege shall be waived if the patient places his care and treatment or injuries at issue in any civil or criminal proceeding. This Code section shall not apply to psychiatrists or to hospitals in which the patient is being or has been treated solely for mental illness.

6. Orr v. Sievert, 1983 Georgia Ct. of Appeals “a doctor has a professional and contractual duty to protect the privacy of his clients and that a breach of that duty gives rise to right to damages.”

7. Confidential communications 24-9-21 • Between • husband and wife; • attorney and client; • among grand jurors; • secrets of state; • psychiatrist and patient; • licensed psychologist and patient;

8. Other Protected Communications24-9-21 • licensed clinical social worker, clinical nurse specialist in psychiatric/mental health, licensed marriage and family therapist, or licensed professional counselor during the psychotherapeutic relationship; and • (8) Communications between or among any (people named above)regarding that patient's communications which are otherwise privileged

9.   Privileged communications 43-39-16 •    The confidential relations and communications between a licensed psychologist and client are placed upon the same basis as those provided by law between attorney and client; and nothing in this chapter shall be construed to require any such privileged communication to be disclosed. (Ga. L. 1951.)

10. Cases • Orr v. Sievert [Ga] cause of action for breach of confidentiality • Johnson v. Rodier [Ga] state privilege • State v. Herendeen [Ga] state privilege • Jaffee v. Redmond [US] federal privilege

11. Other Protections • HIPAA • Requires most people who handle personally identifiable patient records to maintain its privacy • In the normal course of business, requires written authorization to disclose records • Has special disclosure rules for records of psychotherapy notes

12. Remember: The specific rules in the mental health context • PSYCHOTHERAPY NOTES MAY NOT BE DISCLOSED WITHOUT SPECIFIC AUTHORIZATION

13. HIPAA Rule • Psychotherapy notes means notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual’s medical record.

14. FEDERAL LAW ON THE CONFIDENTIALITY OF ALCOHOL AND SUBSTANCE ABUSE RECORDS

15. GENERAL LEGAL PROVISIONS Federally assisted drug abuse programs may not disclose patient identifying information to third parties except in specific situations:

16. DISCLOSURE EXCEPTIONS • The patient has given written consent; • Federal regulations permit disclosure without consent; • A court order is issued under federal law and is accompanied by a subpoena.

17. USE IN CRIMINAL PROCEEDINGS Unless a court order is issued, no records protected by this law may be used to initiate or substantiate any criminal charges against a patient or conduct any investigation of a patient SEE Subpart E below

18. PENALTIES FOR UNAUTHORIZED DISCLOSURE • Civil Penalty: • Potential loss of funding for some federal programs; • Criminal Fines: • $500 fine for first offense; • Up to $5000 for subsequent offenses

19. EXCEPTIONS TO THE PROHIBITIONS AGAINST DISCLOSURE

20. EXCEPTIONS • Disclosure is made to medical personnel in a bona fide medical emergency; • Qualified personnel seek data for research, audit or program evaluation; • A Crime has been committed by the patient at the program, or • against a person who works for the program, or • such a crime is threatened.

21. CHILD ABUSE EXCEPTION • Reports of suspected child abuse or neglect mandated by state law are allowed under this federal law

22. CRIMINAL JUSTICE REFERRALS ? • Programs may disclose patient information where participation in a substance abuse program has been made a condition of disposition of criminal proceedings • OR , of parole • OR, release of custody, • ONLY IF:

23. CRIMINAL JUSTICE REFERRALS(CONT.) • The disclosure is made only to people who have a need to know to monitor the patient’s progress; and, • The patient has signed a written consent (see sample) which includes provisions for : • Duration of consent; • Revocation of consent, and • Restrictions on redisclosure and use.

24. SUBPART E—COURT ORDERS AUTHORIZING DISCLOSURE AND USE of Alcohol or Substance Abuse Records

25. COURT ORDERS: “SUBPART E” • A court may order disclosure after a hearing showing “good cause” including the need to avert a substantial risk of death or serious bodily harm

26. WHAT THE ORDER DOES • Authorizes, but does not compel, disclosure or use of patient information which would otherwise be prohibited. A subpoena (an order forcing the production of books, papers, and other things) is required in addition to the authorizing order in order for the information to be used in court.

27. WHAT THE ORDER DOES • This order does not authorize qualified personnel, such as researchers, to disclose patient information obtained without the patient’s consent. However, this order may authorize disclosure to investigate or prosecute personnel holding the records.

28. CONFIDENTIAL COMMUNICATION • A Court Order May Allow Disclosure only if it is necessary for the investigation or prosecution of an extremely serious crime (homicide, rape, kidnapping, armed robbery, assault with deadly weapon, or child abuse and neglect)

29. CONFIDENTIAL COMMUNICATION • A Court Order May Allow Disclosure only if it is connected with litigation or any proceeding where the patient offers testimony or other evidence related to the content of the confidential communications

30. PROCEDURES FOR AUTHORIZING DISCLOSURES FOR NONCRIMINAL PURPOSES • Application • Notice • Review of Evidence • Criteria for Entry of Order • Content of Order

31. APPLICATION • May be applied for by any person having a legally recognized interest in the disclosure sought • May be filed separately or part of a pending civil action • Must use a fictitious name to refer to a patient

32. APPLICATION • May not disclosure any patient identifying information without the patient’s written consent, unless the patient is the applicant or the court has ordered the record of the proceeding sealed

33. NOTICE • Must be given to the patientand the person holding the records • Must not disclose patient identifying information • Must be (legally) adequate • There must be an opportunity to file a response to the application or to appear in person to provide evidence on the statutory and regulatory criteria for the issuance of the court order

34. REVIEW OF EVIDENCE • Any oral argument, review of evidence, or hearing on the application must be held in the judge’s chambers or in some manner ensuring that, unless the patient consents in writing, any patient identifying information is not disclosed to anyone other than • a party to the proceeding • the patient • the person holding the record

35. CRITERIA FOR ENTRY OF ORDER • Good cause must exist for the court to authorize an order • Good cause is established by showing that • other ways of obtaining the information are not available or would not be effective • the public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services

36. CONTENT OF ORDER • The order authorizing disclosure must limit disclosure • to those parts of the patient’s record which are essential to fulfill the objective of the order • to those persons whose need for information is the basis of the order, and

37. CONTENT OF ORDER • The order authorizing disclosure must include such other measures (such as sealing the record of the proceeding) which will protect the patient, physician-patient relations and the treatment service

38. PROCEDURES FOR ORDERS AUTHORIZING DISCLOSURES FOR CRIMINAL PURPOSES • Application • Notice and Hearing • Review of Evidence • Criteria • Content of Order

39. APPLICATION • May be applied for by the person holding the records or by any person conducting a criminal investigation or prosecution • May be filed separately, with a subpoena, or in a pending criminal action • Must use a fictitious name to refer to a patient

40. APPLICATION • May not disclosure any patient identifying information unless the court has ordered the record of the proceeding sealed

41. NOTICE AND HEARING • If an order under s 2.65 is sought without an order under s 2.66 (authorizing disclosure of information to prosecute or investigate a program or the holder of records) the person holding the records must be given • Adequate Notice • Opportunity to appear and be heard • Opportunity to be represented by independent counsel

42. REVIEW OF EVIDENCE • Any oral argument, review of evidence, or hearing on the application must be held in the judge’s chambers or in some manner ensuring that, unless the patient consents in writing, any patient identifying information is not disclosed to anyone other than • a party to the proceeding • the patient • the person holding the record

43. CRITERIA • Disclosure may be authorized if the court finds that all of the following criteria are met: • An extremely serious crime is involved • There is a reasonable likelihood that the records will disclose information of substantial value in the investigation or prosecution • Other ways of obtaining the information are not available or would not be effective

44. CRITERIA (cont.) • The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services

45. CRITERIA • When applicant is a person performing a law enforcement function then, the person holding the records must be afforded the opportunity to be represented by counsel, and • if the holder of the records is an entity within government then, that person must in fact be represented by independent counsel

46. CONTENT OF ORDER • The order authorizing disclosure must • limit disclosure to those parts of the patient’s record which are essential to fulfill the objective of the order • limit disclosure to those law enforcement and prosecutorial officials who are involved in the investigation or prosecution • include such other measures to limit disclosure for the purpose found by the court

47. AUTHORIZING DISCLOSURE TO INVESTIGATE OR PROSECUTE A PROGRAM OR RECORD HOLDER

48. APPLICATION • May be made by any regulatory, investigative, supervisory, prosecutorial, or law enforcement agency having jurisdiction over the program or record holder • May be filed separately or as part of a pending civil or criminal action in which it appears that the records are needed to provide material evidence

49. NOTICE NOT REQUIRED • With the court’s discretion an application may be granted without notice • The person ordered to disclose the records must be afforded an opportunity to seek a revocation or amendment of that order

50. REQUIREMENTS FOR ORDER: GOOD CAUSE • Good cause is established by showing that • other ways of obtaining the information are not available or would not be effective • the public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services