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

Values underlying Confidentiality StigmaTrustPrivacyAutonomy

Stigma Public fear and superstitionPublic fear and superstition Stereotypes associated with violence and dangerousnessStereotypes associated with violence and dangerousness Discrimination against mentally ill is prohibited under the ADA of 1990 (PL )and Fair Housing Amendments Act of 1988 (PL ), but still…Discrimination against mentally ill is prohibited under the ADA of 1990 (PL )and Fair Housing Amendments Act of 1988 (PL ), but still…

Trust Fundamental to the therapeutic allianceFundamental 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…”“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 privacyCourt 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 careCompetent individuals’ right to self-determination, including the decision to seek, select, or forgo health care

Typical Exceptions to Confidentiality Patient consentPatient consent Other treatment providersOther treatment providers ReimbursementReimbursement Disclosure to patientDisclosure to patient Disclosures to familiesDisclosures to families Quality control and program evaluationQuality control and program evaluation Research Public health reporting Protection of third parties Disclosures to law enforcement Disclosure in court proceedings

Definitions PrivacyPrivacy ConfidentialityConfidentiality PrivilegePrivilege –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]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 abuseMay include financial abuse –Disabled May allow more discretionMay allow more discretion –Dangerous driver

Discretional Breaches Lawsuits (seek release)Lawsuits (seek release) Ethics complaints (seek release)Ethics complaints (seek release) Within institutionWithin institution –Treating colleagues –Supervision –Utilization review –Quality assurance

Duties to Third Parties Obligations to payersObligations to payers –Contractual versus non-contractual Patient’s contractPatient’s contract Non-subscriber partiesNon-subscriber parties Provider’s contractProvider’s contract Targets of violenceTargets 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 assessmentRisk assessment Identified targetIdentified target Protective stepsProtective steps

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

Multiple Client Therapies GroupsGroups –No privilege held in relationship to other group members CouplesCouples –What is the couple’s contract? FamiliesFamilies –What is the contract? –What will parents allow? –What about break-ups?

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

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