Confidentiality and Privilege

Confidentiality and Privilege

The principles of confidentiality and privilege have a long and still evolving historical connection with the practice of medicine and the role of the physician. The Hippocratic Oath states, “And about whatever I may see or hear in treatment, or even without treatment, in the life of human beings – things that should not ever be blurted out outside – I will remain silent, holding such things to be unutterable [sacred, not to be divulged]’’ (Von Staden, 1996). The elegant simplicity of this statement of principle is now pitted against conflicting legal demands and societal values. The Tarasoff case (discussed below) and its progeny, the increas-ing use of subpoenas for psychiatric records, the complexity of interfacing with managed care, and confidentiality guidelines related to human immunodeficiency virus infection (HIV) are just some of the issues that complicate the psychiatrists’ oath of confidentiality.

Confidentiality

In the APA’s Principles of Medical Ethics with Annotations Es-pecially Applicable to Psychiatry (1993), Section 4, Annotation 1 reads, “Confidentiality is essential to psychiatric treatment. This is based in part on the special nature of psychiatric therapy as well as on the traditional ethical relationship between physician and patient’’.

Appelbaum and Gutheil (2000) looked at practice in psy-chiatric facilities, and devised the concept of a “circle of confi-dentiality’’ (Figure 6.1). Within the circle, information about the patient is shared without the patient’s consent. For instance, for a hospitalized patient, the resident psychiatrist, the psychiatrist’s supervisor, the staff and essential consultants are considered to be within the circle of confidentiality. The patient’s family, the patient’s attorney, the patient’s outside psychiatrist, the patient’s previous psychiatrist and the police are outside the circle. As Appelbaum and Gutheil note, although the patient is inside the circle, the patient may speak to anyone outside the circle without restriction.

The duty of confidentiality is sometimes understood in terms of the treatment contract between the patient and psy-chiatrist. There is agreement between the legal system and the psychiatric profession that confidentiality is not an absolute value. There are several major exceptions to the obligation of

confidentiality, the most common of which is when the patient consents to information being released. Psychiatrists and their patients should be aware of the implications of releasing infor-mation to insurance companies, family members, employers and so forth and should work collaboratively in making these deci-sions (Table 6.3).

As a rule, the psychiatrist should get the patient’s consent in writing and, optimally, the patient should read any information that leaves the office before it is released.

The second exception is based on the duty to protect, wherein the value of safety is given priority over the value of confidentiality.

The third set of exceptions includes reporting statutes, which mandate physician reporting of certain conditions. All states have such laws in one form or another, and generally in-clude incidents of infectious diseases, child abuse and elder abuse. If they are following any of these statutes in good faith, psychiatrists run little risk of liability. See the discussion of child abuse reporting, below.

The fourth set of exceptions includes emergencies. For instance, when a psychiatrist is evaluating a patient in an emer-gency department and the patient is grossly psychotic and unwill-ing to participate in the interview, the psychiatrist is presented with the dilemma of whether to contact family members or prior treaters without the expressed written consent of the patient. This involves a risk–benefit assessment that the evaluating psychiatrist must make. Psychiatrists must be aware of their states’ standards concerning emergency breach of confidentiality; one state may require an identifiable harm to be prevented, while another may permit breach when it is necessary in the clinician’s judgment to gather the relevant information to make a proper diagnosis or disposition for the patient.

Medical insurance has brought its own challenges to the is-sue of confidentiality. Insurance companies may ask mental health providers to sign a contract agreeing to release information to the insurer. Patients may ultimately have to decide which they value more: their privacy or the benefits obtained through the managed health company. Mental health providers who are negotiating con-tracts with insurers should be mindful of any obligation to provide confidential information without the patient’s consent.

Appelbaum and Gutheil (1991) state that psychiatrists in the position of having to breach confidentiality should observe certain basic principles. First, they should alert patients, whenever pos-sible, of their intention to breach confidentiality before doing so. Secondly, psychiatrists should use a hierarchy of confidentiality. Psychiatrists do not need to jump to breach confidentiality in all situations where it is necessary to communicate confidential in-formation. They often have time to discuss issues with a patient, to consider alternatives and thus avoid such confrontations. Finally, Appelbaum and Gutheil state that psychiatrists should bear in mind that the alliance is based on the “healthy side’’ of the patient against the patient’s illness. They suggested that when the patient is expe-riencing impulses to harm another person, the psychiatrist and the patient should attempt to make the call to warn the person together. The healthy side of the patient is thus supported actively by the psy-chiatrist, as opposed to having the psychiatrist “blow the whistle’’ on a patient who has become dangerous. These recommendations emphasize the importance of the therapeutic alliance and remind us that confidentiality is an important aspect of that alliance.

Psychiatrist–Patient Privilege

Privilege is defined as the patient’s right to prevent testimony by a psychiatrist in a court setting (Gutheil, 1994; Appelbaum and Gutheil, 1991). It rests on two primary justifications: 1) it protects the patient’s interests in the privacy of treatment matters; and 2) it may encourage patients to speak openly with their psychiatrists. The scope of privilege is generally limited to the patient’s com-munications with the psychiatrist. Observations of the patient’s demeanor, or his or her conduct or even words in a public setting may not be covered within the privilege.

Privilege is a right belonging to the patient and may be waived by the patient. Although the privilege does not belong to the psychiatrist, he or she may have a duty to assert it in legal proceedings, unless and until one of the exceptions to privilege applies. In the absence of a release or waiver of privilege by the patient, psychiatrists should consult with legal counsel if they are called to testify about their communications with a patient.

Exceptions to the doctrine of privilege vary from state to state and include situations when a patient has introduced his or her mental state into litigation to which the patient is a party. In some states, privilege does not apply in competence to stand trial, or criminal responsibility evaluations. There are often exceptions in cases of child custody, involuntary commitment proceedings, will contests, or malpractice claims filed by the patient against a psychiatrist. Finally, state law may vary on the scope of the exception once it is invoked.