"Whatsoever things I see or hear, concerning the life of men, in my attendance on the sick ... I will keep silence thereon, counting such things to be as sacred secrets."

Confidentiality is a requirement for high quality health care and is especially essential to psychiatric treatment. Knowing that confidences will be kept private, individuals entrust physicians with sensitive and personal information and expect this knowledge will be used to help treat them. In turn, physicians are sensitive to their role as guardians of confidential medical records; this is impressed upon them in their training and underscored by their professional standards.

The importance of medical record privacy is recognized by the U. S. Supreme Court. The Supreme Court's staunch support of the rights of individuals to keep their medical records confidential was reaffirmed in the1996 case, Jaffee v. Redmond. The Supreme Court decision stated, "The mere possibility of disclosure of confidential communications may impede the development of the relationship necessary for successful treatment."

Confidentiality Guidelines

Individuals seeking or receiving psychiatric treatment should ask how confidential information is protected and what information is disclosed to payers. When confidentiality is not secure, job security, job promotion, health care benefits and life insurance of patients can be jeopardized. Only when confidentiality is ensured can the unique trusting relationship between patient and psychiatrist develop and fully effective medical treatment be provided.

Requests to release medical records to a third party – such as an insurance company, employer or government agency – must be accompanied by a permission form signed by the patient authorizing release of the information. Unfortunately, a patient has little choice but to sign the form if he or she wants to be reimbursed. In these cases, information disclosed should be limited to the minimal amount of information necessary for the purpose at hand, and the consent only should be valid for a limited period of time.

The American Psychiatric Association is unwavering in its support of patients' right to privacy with respect to their medical records. The American Psychiatric Association Guidelines on Confidentiality state, "The patient's consent to the release of information from his or her medical record should be informed and given freely, without threat or coercion. For their consent to be informed, patients should have an appreciation of the nature and content of the information to be released, the purposes for which it will be used, the manner in which it will be protected and the extent to which any of the information be redisclosed to other parties."

Threats to Confidentiality

Today, a rapidly changing health care delivery system, increased computerization of medical records, expanded use of data banks and growing concern that information may be used to withhold services or insurance coverage accentuate the need to understand the prerequisites of confidentiality. Also, as the understanding of genetics expands, one can expect the possible harmful or discriminatory actions resulting from knowledge of a person's genetic code to multiply. Safeguards need to be enacted.

Legislative proposals that address medical record confidentiality, however, are often inadequate. For example, a September 1997 proposal by the U.S. Department of Health and Human Services allowed states to adopt more protective privacy laws and also proposed harsher penalties for breaches in confidentiality. However, this same bill had loopholes that, in effect, broadened the number of agencies, including law enforcement agencies and private corporations, that could have access to medical records.

Exceptional Circumstances

Two principles define the essence of confidentiality between the psychiatrist and patient:

Patients should be able to choose when their confidential medical records will be released. A psychiatrist may release confidential information only with the authorization of the patient or when compelled by law.

Once permission is received, psychiatrists may disclose only material that is relevant to the matter at hand.

While these defining principles are clear, information requests from managed care organizations or health insurance providers may compromise these principles, and questions may arise in a variety of situations. However, only extremely exceptional circumstances can cause confidentiality to be waived, such as when a patient threatens the safety of another individual. Some states require the psychiatrist to notify the threatened individual and the police. Almost all states have laws that require psychiatrists and other physicians to report to government authorities certain conditions, such as child abuse, abuse of the elderly or infectious disease.

But these scenarios represent exceptional cases and are in no sense representative. The ethical, legal and professional issues involved in treating potentially dangerous patients are among the most difficult ones faced by psychiatrists and are issues for which psychiatrists often will seek guidance from professional and legal experts.

Release of medical information in response to law enforcement requests can be done without patient consent, but federal law should provide patients with due process protections, such as requiring that a court order be obtained before the record is released. This action would by no means be automatic; the Supreme Court's Jaffee v. Redmond decision severely restricted the power of the courts to compel disclosure of records to further minimize the aforementioned "mere possibility" that confidential mental health information be disclosed and medically necessary treatment compromised.

Trust is basic to a successful physician-patient relationship, and a guarantee of confidentiality is at the heart of this trust. Individuals should speak with their physician, employee benefits manager, managed care provider and insurance carrier to assure that their confidences are safeguarded.

Bibliography

ABA Forum Committee on Health Law: Health Care Facility Records: Confidentiality, Computerization and Security. Chicago, Ill., American Bar Association, 1995.

APA Committee on Confidentiality: Guidelines on Confidentiality (Official Actions). The American Journal of Psychiatry, 1987; vol. 144: pp.1522-1526.

Bollas C, Sundelson D: The New Informants: The Betrayal of Confidentiality in Psychoanalysis and Psychotherapy. Northvale, N.J., J. Aronson, 1995.

Forbes S: Fact and Comment: Malpractice Bill. Forbes Magazine, Oct. 6, 1997, p. 27.

Medical Files, or Fishbowls? (editorial). The Washington Post, Sept. 23, 1997, p. A16.

Slovenko R: Psychotherapy and Confidentiality: Testimonial Privileged Communication, Breach of Confidentiality, and Reporting Duties. Springfield, Ill., Charles C. Thomas Publishers, 1998.