Download Privacy, Confidentiality, and Privilege in Mental Health Services

Necessary Secrets
Privacy, Confidentiality, and
Privilege in Mental Health Services
Gerald P. Koocher, Ph.D., ABPP
Values underlying
Confidentiality
Stigma
Trust
Privacy
Autonomy
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 (PL100430), but still…
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)
Privacy
• Court decisions in regard to
procreation, death, and dying,
and mental health illustrate the
significant societal concern for
privacy
Autonomy
• Competent individuals’ right
to self-determination,
including the decision to
seek, select, or forgo health
care
Typical Exceptions to
Confidentiality
• 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
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]
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
Discretional Breaches
• Lawsuits (seek release)
• Ethics complaints (seek release)
• Within institution
– Treating colleagues
– Supervision
– Utilization review
– Quality assurance
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
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
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?
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
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.