Telehealth: Confidentiality In CyberpsychTherapist-Client Confidentiality In Telehealth

By George J. Alexander, J.D., J.S.D.,
Sutro Professor of Law at Santa Clara University

 

Originally posted at http://www.telehealth.net/articles/cyberpsych.html.Posted by permission. Copyright by Marlene M. Maheu, Ph.D.

As the century draws to a close, information flows more generously and privacywithers. This is true of the general society but has even more ominous effectsin psychology. This note is an encapsulated version of a paper delivered atthe A.P.A. meeting in 1999. It surveys the present state of therepist-clientconfidentiality in Telehealth and makes a few modest predictions about theimmediate future.

• Clients expect privacy beyond the ability of practitioners to provide it.
• Confidentiality is probably an important prerequisite to treatment.
• The United States Supreme Court has upheld its importance but
• The law forces reporting of child abuse and, in some states, elder abuse.
• Tarasoff requires warning an identified potential victim.
• The therapist may use client information involuntarily to commit.
• The therapist may use client information in legal self-defense.
• Insurance companies want client information related to payments.
• Managed care providers want even more information

The federal government, notably but not exclusively in HIPPA, has requiredconfidentiality but has made exceptions that are very broadThe Secretary of H.H.S. promulgated rules which allow overriding clientconfidences in areas of national priorities. Four were identified:

• to combat waste and fraud
• to control infectious diseases
• to promote research
• to assist law enforcement

The latter two are frighteningly broad although present specificinterpretations are not.

Furthermore, a national register of all patients and clients is required andthe federal government is to be its guardian with client/patient controlsometimes limited to their being informed that their records have been providedto others.

The historic notion of a client’s real control of the release of medicalinformation seems substantially subordinated.

Perhaps Daniel Ellsberg’s records could have gone to the Nixonadministration if there had been such a law then. The information that can besubordinated to the national interests includes information which identifiesspecific patients. On the other hand, state legislation dealing with cyberpsych(Telehealth in psychology) is expressly more protective of privacy.

The California Telemedicine act expressly preserves patient confidences. It is a model for the new class of express cyberpsych legislation. Among other requirements of the Act is a requirement that records of telemedical sessions be maintained.

Other provisions of the act exclude telephone and electronic messages from theact and require real time or near real time sessions. Those provisions, plusobvious professional advantages, drive sessions toward interactive video.Arguably, tapes of those sessions would constitute parts of the requiredrecord.

We have no experience with the availability of verbatim session records.Consider what a trial lawyer in a malpractice case might do with them.Before the repressed memory cases, there was a dearth of malpractice litigationgrowing out of talk therapy.

Such records might change that as forensic psychologists testify about missedopportunities and damaging suggestions once they have studied the specificconversations.