Confidentiality: Limits or Limitations?

 

Recently I heard from a colleague who I had not seen for quite some time. We arranged to meet for lunch. Eager to see his new suite of offices, I gladly agreed to meet him there hoping for a tour. As I drove up to the new medical building, I knew I would not be disappointed. It was certainly a far cry from the small office in his home which his busy practice had clearly outgrown.

Entering his waiting room I was immediately struck by the modern furnishings. The receptionist stationed there greeted me as she answered the telephone. “Yes Mrs. Jones,” I easily overheard in the open room. “We filed the forms with your insurance company…the diagnosis was acute depression. Oh yes, I’m sure we got it right; Mrs. Edith Jones, 1701 Mockingbird Lane. Yes Ma’am. Have a nice day.”

Her other telephone calls and conversations with patients were equally audible as she sat behind her desk within earshot of all in the waiting room. As she made and received several telephone calls, I was struck by how much information I was able to gather about the individuals she spoke to, all of whom were patients receiving treatment there.

We returned from lunch to his now closed offices where a cleaning crew was diligently working. Walking back through the staff work areas, I noticed patient records apparently waiting to be filed as well as bills, insurance paperwork and correspondence laying open on desks and file cabinets. Commenting on this, my friend responded that these materials were soon to be filed, that today must have been an especially busy day for his office staff. When I asked about safeguarding confidentiality and storage of patient records, he assured me that no patients were ever allowed back here. There was a sign stating “Private – Staff Only” on the door separating this area from where patients were seen. Apparently the cleaning crew and his office staff were not a concern to him.

Excusing myself, I went to the patients’ restroom off the hallway just on the other side of that door. While there, I was struck by how easily I could hear him through the side wall. Though the voices were somewhat muffled, when I concentrated I was able to hear him instructing the cleaning crew to “leave the charts and papers undisturbed and to just vacuum, empty the trash, and then move on to the other work areas.” I found myself wondering about the conversations patients might overhear from this vantage point.

Meeting in his large well-appointed office, we sat discussing our practices. Describing how smoothly his practice is run, he spoke of his office manager in glowing terms as he detailed her wide-ranging abilities. He discussed a recent staff meeting in an attempt to illustrate this to me. His staff of four psychologists, the office manager, and himself were all in his conference room reviewing billing, insurance problems, scheduling, and other related issues. I listened with increasing interest as the discussion of various patients and their treatment became the topic. Needless to say, I was impressed with his office manager’s Reported clinical skills and her ability to participate in and add to the staff’s discussions of treatment issues and problems. Since she proofreads all dictated progress notes and psychological reports, she had adequate information to participate productively during these meetings. Clearly he felt these points to be additional signs of her value and efficiency.

As the conversation shifted to our own clinical work, he began discussing a difficult case with me. He knew I was experienced with anxiety disorders and phobias, and he explained in great detail the difficulties he was having treating a particular patient. Alarmed, I asked him if his patient had given consent for him to discuss her treatment with me or with anyone else. Seeming surprised by my question, he informed me that patients expect us to provide the best possible care. Peer consultations and supervision are just a part of that. He was sure all patients automatically assume that he confer with colleagues about their treatment. What they care about most is receiving the best help possible.

I told him about a new written contract I give to my patients delineating the limits of confidentiality in a variety of situations. He seemed somewhat surprised that I felt it necessary to include such issues as limits of confidentiality in court proceedings; how and when records may be released to third parties; responding to subpoenas; the rights of minors, individuals, couples, family members and group members; and the impact of duty-to-warn and dangerousness to self and others. My friend thought all this to be somewhat excessive and cumbersome. He also stated, “most patients aren’t interested in hearing all this, and it would take valuable time away from treatment, our primary concern.” He described the one intake form he uses in his practice, which all new patients fill out. It includes all the pertinent demographic information, a space to fill in about presenting problems and complaints, a detailed history checklist, financial information, and insurance information. It also delineates his practice’s payment and cancellation policies. At the top and bottom of the form in capital letters it states simply “CONFIDENTIAL.”

After further discussion, it became clear that he found my recommendations for safeguarding a patient’s confidentiality and for informing patients of the very real limits to confidentiality as very cumbersome. They were clearly an impediment to him in his practice of focusing primarily on: “clinical” issues. Unfortunately, we were not able to resolve this matter through conversation.

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Psychologists have a multifaceted responsibility in their work with patients with regard to confidentiality. First, we must be aware of the actual limits of confidentiality which exist and may affect our patients, either now or in the future. We also must be aware of the ethical obligation to safeguard our patients’ confidentiality as described in Ethical Standard 4: Privacy and Confidentiality, of the Ethical Principles of Psychologists and Code of Conduct (APA, 2010 p. 7). Finally, we must inform our patients of these potential and actual limits to confidentiality and ensure that they understand them as well as the implications for their treatment.

Shapiro (1991) details the very real limits on confidentiality. He also discusses the need to provide patients with a written consent to treatment containing an accurate description of these limits and of the possible impact on the patient at that time or in the future.

A representative article relevant to the State of Maryland that may prove quite helpful to mental health professionals in sorting through this difficult issue is a discussion of the Health General Article of the Annotated Code of Maryland, Subtitle 3: Confidentiality of Medical Records (Bloch & Berman, 1991). Issues addressed include acknowledgment of the existence of a medical record and thus acknowledgment that a patient is being, or has been, provided treatment; guidelines for the release of treatment information to interested parties; guidelines for discussing treatment information to insurance companies, HMO’s, utilization reviewers and other third parties; and limitations on disclosures of patient information with business purposes. Each state and jurisdiction has similar laws. Clinicians are advised to learn these laws so that they will be able to ensure that their practices are in compliance with them. These laws may have a range of nuances that can impact confidentiality. For example, in Maryland, only a custodial parent is authorized under the law to consent to his or her minor child’s evaluation or treatment. Yet, the law authorized non-custodial parents access to all health care related information that they request (Family Law Article, 9-104). This law has clear implications for confidentiality and limits to it that exist under the law. When providing clinical services to minors or to families it is important to ensure that all parties are informed of all possible limits to confidentiality that exist under the law. Failure to do so could result in significant ruptures to the therapy relationship and therapeutic alliance. By informing all parties of the potential limits to confidentiality at the outset of the professional relationship, they are empowered to make decisions about what information they choose to share with you and what information they choose not to share based on these potential limits to confidentiality.

The Health General Article also stipulates requirements for safeguarding patients’ confidentiality that apply not only to psychologists but to all employees of health care providers. One section of the Health General Article (2002, SS 4-305, p. 17) delineates the specific circumstances under which disclosures of treatment information may be made without the authorization of the individual involved. These include disclosures to the provider’s authorized employees and staff for a variety of reasons. Not only do psychologists need to inform patients of these limits of confidentiality, but it is important to train staff and employees to sensitize them to these important issues to make sure that confidentiality is not inadvertently breached.

It should be noted that the General Health Article guidelines are consistent with the APA Ethics Code with regard to the issue of discussing a patient’s treatment with other health care providers as portrayed in the scenario presented earlier. The Health General Article permits the discussion of a patient’s treatment with others if done for the sole purpose of evaluating services provided (§ 4-305, p.17). Ethical Standard 4.05: Disclosures delineates that “psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose, such as to (1) provide needed professional services; (2) obtain appropriate professional consultations, (3) protect the client/patient, psychologist, or others from harm…” (p.7).

Disclosures mandated by law include the legal requirement to report suspected physical or sexual abuse or neglect of a minor and in some jurisdictions, the elderly or other vulnerable adults; and the reporting of a specific threat to do harm to an identifiable victim or group of victims. Disclosures permitted by law for valid purposes include for professional consultations done in the interest of providing high quality professional services if allowed by the laws in one’s jurisdiction. To disclose confidential information to provide needed professional services would include the sharing of confidential patient information among members of a treatment team or among the professionals at a treatment facility. But, these disclosures should first be addressed as part of the informed consent agreement. Mental health professionals are allowed to release confidential patient information to defend themselves against a malpractice suit or a licensing board or ethics committee complaint. By filing the law suit or making the complaint the patient is waiving their privilege by disclosing confidential information outside the confines of the professional relationship. This allows the sharing of information by the mental health professional. Further, when filing complaints, patients are typically required to sign a release form that authorizes disclosure by the mental health professional. Clinicians who work with insurance and managed care organizations (MCO) will also frequently be asked by the insurer or MCO to share treatment-related information for the purposes of utilization review and to process claims. Typically, consumers will sign a release with the insurer or MCO that authorizes the clinician to release all relevant information to the insurer or MCO. None the less, clinicians should endeavor to comply with Ethical Standard 4.04, Minimizing Intrusions on Privacy, (APA, 2010) and only share the minimum amount of information needed for the purposes of the utilization review or other relevant activity. Additionally, patients should be informed from the outset of the need to share confidential information with their insurance company or MCO if they choose to utilize it to assist with payment to the professional services to be provided.

Confidentiality is an essential issue to address in the informed consent process with patients, in our office set up, office procedures, and training of staff, and in our day to day activities. Each mental health professional should be familiar with the relevant sections of their profession’s ethics code as well as with relevant laws in his or her jurisdiction. While the scenario initially presented may seem to exaggerate several of the issues relevant to office set up and practices, it does highlight the need to be sensitive to confidentiality issues. We should take for granted neither a patient’s consent to disclose information, nor our staff’s sensitivity to these matters. Each mental health professional needs to decide on the specific safeguards that must be taken within his or her practice.

References

American Psychological Association. (2010). Ethical principles of psychologists and code of conduct. Accessed at website: www.apa.org/ethics.

Annotated Code of Maryland, Family Law Article, Section 9-104. State of Maryland, 2002.

Annotated Code of Maryland, Health General Article, Sections 4-301 through 4-309. State of Maryland, 2002.

Bloch, R. and Berman C. (1991). Disclosure of medical records – A summary of significant changes in Maryland law. The Maryland Psychologist, January/February, 10-13.

Shapiro, D. (1991). Informed consent in psychotherapy. The Maryland Psychologist, March/April, 13-14.

 
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