Online Course #2 – Are Psychotherapists Really “Informants”? The Ethical Implications of Disclosing Confidential Information

 

Are Psychotherapists Really “Informants”?  The Ethical Implications of Disclosing Confidential Information
Mary Alice Fisher, Ph.D., Clinical Psychologist, Executive Director of the Center for Ethical Practice

2 CE Credits – 14 test items – $50

This is an “intermediate level” course, appropriate for mental health professionals from all professions and at all levels of training.

 

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This page contains learning objectives, course outline and complete text for this CE course.  You can read the course online, print the course or save it to your computer. 

At the bottom of the course there is a link that allows you to purchase the test. You will be required to create an account (using your email address) so that you will be able to complete the test immediately, or on your schedule.  You may also begin the test and save it to finish at a later time.

Once you submit the online test, it will be automatically graded. You may take the test up to 3 times in order to pass (80% correct out of 14 questions).  

TO GET YOUR CE CERTIFICATE:  Once you pass the test, you will be required to complete an evaluation form, after which you will be able to immediately download a certificate of CE credits.

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LEARNING OBJECTIVES:

This is a beginning to intermediate course. After completing this course, you should be able to:

1. List examples of circumstances in which you have voluntarily disclosed patient information without the patient’s informed consent.
2. List examples of laws that can require you to disclose patient information involuntarily.
3. Describe the potential impact on patients or on you in those situations.
4. List some things you can do to avoid being an “informant.”

 

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COURSE OUTLINE:

I. Ethically Important Distinctions
     A. Ethical Duties vs. Laws
     B. Confidentiality vs. Privilege
     C. Voluntary vs. “Involuntary” Disclosures
     D. Legally Required vs. Legally Allowed Disclosures

II. Why Did Bollas Call Psychotherapists “Informants”?

III. What Are The Current Realities?

IV. Learning The Ethics of “Conditional” Confidentiality  
      A. Ethical Responsibilities
      B. Legal Complications
      C. Using the Ethical Practice Model

V. Can You Avoid Being An “Informant”?   
      A. Challenge #1: Protect Confidentiality to the Extent Legally Possible
      B. Challenge #2: Prevent “Preventable” Disclosures In Your Own Setting
      C. Challenge #3: Collaborate With Colleagues; Educate Supervisees & Students About Confidentiality

VI. Thoughts On “Reaching For The Ethical Ceiling” About Confidentiality

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COURSE CONTENT:

 

INTRODUCTION

In 1995, when Christopher Bollas (psychoanalyst) and David Sundelson (attorney) published their book, The New Informants, it created quite a stir. Today, few people mention that book, and this CE course does not require you to read it.  But we will review some of their claims and consider the predictions they made twenty years ago. 

Confidentiality has been described as “the cornerstone of professionalism” for mental health professionals (Woody, 1999, p. 607) and “the bedrock of psychological services” (Gonsiorek, 2008, p. 369). Ethics texts have emphasized its importance:  Koocher and Keith-Spiegel (2008) suggested that it has long been regarded as “a cornerstone of the helping relationship” (p. 190); Haas and Malouf (2002) described it as a central factor underlying public trust in mental health practitioners. The Ethics Office of the American Psychological Association has punctuated its importance: “Confidentiality is a core value of our profession.  It is, as they say, bred in our bones” (Behnke, 2005, p. 76).

In fact, mental health professionals were once ethically free to make promises such as “Everything you tell me will remain in this room,” because they could honor those promises by protecting confidentiality absolutely.  Now, they are often legally required to disclose confidential information even if the client does not give consent. This creates the risk that the information confided to a psychotherapist might later be obtained by others and used in ways the patient considers harmful.

Is it fair to call psychotherapists “informants”?  If not, why not?  If so, is this a problem that has a solution? 

To avoid confusion, we will begin with some definitions, because the topic of confidentiality can be very difficult to discuss unless the terms are carefully defined.  Also note that in this CE course about the ethical implications of disclosing information without the “truly informed consent” of the prospective client or patient, the terms “client” and “patient” are used interchangeably.

I. MAKING ETHICALLY IMPORTANT DISTINCTIONS

We begin by providing some definitions and making some distinctions.  The topic of confidentiality is difficult enough to discuss even when we all speak the same language about it, but unless we define our terms, the conversation can become very confusing.  In this course, we will use definitions such as those below:

A. Ethical Duties vs. Laws: Confusing one’s legal requirements with one’s ethical obligations can place patients’ confidentiality rights at risk.  It is important for mental health professionals to know the difference between the two — and to notice whenever they come into conflict — because they have certain ethical responsibilities when laws conflict with their profession’s Ethical Standards.  The focus should therefore be first on the ethical duties about confidentiality, because these arise from the Ethics Code of their own profession. The Ethical Standards for each profession apply nationally, but the laws affecting confidentiality vary from state to state.  It is ethically important to learn the laws that apply in one’s own setting, in order to avoid being taken by surprise by them. For example, “psychologists faced with a legal reporting requirement for the first time may realize too late that they were unaware of the existence of such a law, that they were unsure how to respond to it, and that they had failed to adequately inform the client at intake about this potential limit of confidentiality”  (Fisher, 2012, p. 351).

B.  Confidentiality vs. Privilege: These terms are sometimes used as if they were synonymous, but they are not. For the psychotherapist, protection of confidentiality is an ethical duty. For patients, the right to confidentiality is the right to prevent information about oneself from being made available to others.  Therapists of all professions have an ethical duty to protect that right, although each profession’s Ethics Code does contain some exceptions to that duty.  In contrast, “privilege” is a legal concept that applies only in court-related circumstances.  Information from certain relationships can be protected from use as evidence in court proceedings by laws that grant them “privileged” status (e.g., husband-wife privilege, doctor-patient privilege, lawyer-client privilege, etc.)  Unlike psychotherapists’ Ethical Standards about confidentiality, which apply nationally, the laws affecting confidentiality and privilege vary greatly from state to state.  Since each state imposes different exceptions to privilege, the level of legal protection will depend upon where one receives mental health services.  

C. Voluntary Disclosures vs. “Involuntary” Disclosures: A disclosure of confidential information can be considered “voluntary” if the patient was free not to give consent for the disclosure and the psychotherapist was legally free not to disclose.  This course will use the term “involuntary” to describe any disclosure required by law, because a psychotherapist is not legally free to ignore such a law, even if the patient refuses to give consent for disclosure. Note that by this definition, “involuntary” is not synonymous with “unwilling.” (That is because a disclosure can be legally required even if the psychotherapist would have been willing to disclose voluntarily, and even if the patient was willing to consent.)

Ethically speaking, this is a very important distinction: According to professional Ethics Code, psychotherapists are ethically responsible for (1) informing prospective therapy patients at intake about any foreseeable limits of confidentiality, which would include both voluntary and “involuntary” disclosures; (2) obtaining the patient’s informed consent before making any voluntary disclosure; and (3) responding ethically when faced with a legal demand for “involuntary” disclosure of information.  Legally speaking, this is also a very important distinction: Psychotherapists are legally responsible for knowing when their laws require them to disclose something (e.g., report child abuse), because sometimes there are legal penalties for failing to obey such laws.  But if they disclose without the patient’s consent when they are not legally required to do so, there can also be penalties — both ethical penalties and legal penalties.

D. Legally Required vs. Legally Allowed Disclosures: Legally speaking, laws that require you to disclose patient information are very different from laws that merely “allow” you to disclose. A legal requirement sometimes gives you no legal choice, whereas a law that merely allows certain behavior legally leaves the choice to you. Ethically speaking, a “legally-allowed” disclosure is therefore a voluntary disclosure (meaning that the patient remains free not to give consent and the therapist remains free not to disclose the information). Before making voluntary disclosures, it is ethically important to obtain the patient’s consent. “In other words, since these disclosures are not legally required, the most patient-protective practice for the therapist who intends to make such disclosures is to inform prospective patients about those potential limits of confidentiality at intake, and to obtain their consent to receive services under those conditions” (Fisher, 2013, pp. 24-25). Consent for “legally-allowed” disclosures can also be obtained and documented at any later time, using a “Consent for Release of Information” form before the voluntary disclosure is made.

II. WHY DID BOLLAS CALL THERAPISTS “INFORMANTS”?

Bollas believed that mental health professionals had allowed the destruction of confidentiality between clinician and patient by being willing to disclose information from what had once been a strictly private relationship.  “I shall argue that there have been so many qualifications to confidentiality that it exists only in name and not in fact” (Bollas & Langs, 1999, p. 1).

Bollas acknowledged that countless others might benefit from obtaining information held by psychotherapists and psychoanalysts, but he did not consider this a valid reason for breaching confidentiality.

First it was the abused child who had to be protected by mandatory reporting, then the potential victim of a violent crime, then the innocent lover of a human immunodeficiency virus (HIV) client, and the list is now growing as different groups submit claims for protection.  The “duty to protect” has now spread its wings to include an increasing number of people who would benefit from clinical informants. (Bollas & Sundelson, 1995, p. 73)

Bollas bemoaned the fact that mental health professionals were giving way to these encroaching laws.  He asserted that psychotherapy patients should have the same right of confidentiality as attorneys’ clients (Bollas & Langs, 1999). Instead, he believed that because mental health professionals had not refused to obey such laws, they would increase in number and scope.

Lawyers still have privileged relations with their clients, priests with their penitents, journalists with their sources, but therapists have allowed their privilege — equally if not more important to the practice of their profession — to be destroyed.  With the mandatory reporting laws and managed care requirements, what patients say will now often be used against them. . . . It seems almost inconceivable that psychotherapy — more dependent on privacy than any other profession — should come to such a pass. (Bollas & Sundelson, 1995, p. 73)

Bollas’ arguments were focused not on ethical concerns but on clinical concerns.  He indicated that whereas some therapists and counselors might decide to begin their relationships by advising patients at intake about the limits of confidentiality (as required by Ethics Codes), that conversation was not clinically appropriate behavior for psychoanalysts or others who took seriously the concept of the “unconscious.” (For his clinical rationale, see Bollas & Sundelson, 1995, pp. 164-165 and Bollas, 2003, pp. 161-162.). Interestingly, that intake conversation about the limits of confidentiality is ethically required only if confidentiality will actually have limits that patients should be informed about.  Bollas argued that the only clinically appropriate solution was to place no limits on confidentiality — to refuse to disclose any patient information, even when disclosure was legally compelled — so there would be no limits that needed to be described at intake.

In other words, Bollas explicitly advocated that mental health professionals engage in civil disobedience, refusing to obey reporting laws or court orders, in the service of protecting patient confidentiality absolutely. He acknowledged that this could put mental health professionals at risk for severe financial penalties and even incarceration, and he recommended that they band together to support each other through such complications. He believed that such actions could create legal changes toward better confidentiality protections for patients.

III. WHAT ARE THE CURRENT REALITIES?

Twenty years later, what are the realities now?   Some believe that “the porousness of confidentiality” is increasing, just as Bollas predicted it would, and that young therapists are tending to seek ways of making exceptions to confidentiality in order to serve other social or personal interests, rather than seeking ways to protect confidentiality in the patient’s best interest (Gonsorek, 2008, p. 374).  It has been suggested that in balancing their ethical duties against laws that demand disclosure of information, therapists sometimes tilt too far toward obeying laws that protect others in society, and too far away from practices that protect the client’s confidentiality. “Psychologists seem increasingly inclined to disclose confidential information or seek opportunities to disclose confidential information even when there are other clinical or legal options” (Donner, 2008, p. 369).

Meanwhile, contrary to Bollas’ prediction, there has not been a demise of psychotherapy and psychoanalysis, even though confidentiality continues to be eroded.  Is that because mental health professionals are not being completely honest with patients in advance about the limits to confidentiality?  In other words, are patients entering mental health treatment presuming more confidentiality protections than they actually have?

Bollas still considers it essential to promise and provide absolute confidentiality in psychoanalysis, in spite of the potentially severe consequences (2003); Kipnis (2003, 2006) would argue that the same protections should apply to medical information. However, it is almost impossible today to find a medical or mental health professional who is willing to incur the risks of civil disobedience in order to protect a client’s confidentiality absolutely.  It would seem that, if anything, disclosures are increasing as new laws place further limits on confidentiality.

As the legally-compelled disclosures become increasingly common, it is easy to think that the voluntary breaches of confidentiality will also grow. It has been suggested that the legally-imposed exceptions to confidentiality have become so commonplace that therapists may be experiencing “figure-ground reversal,” in which they begin treating the exceptions as if they were the rule, allowing the confidentiality rule itself to fade into the background (Beck, 1990, p. 5). As a result, therapists have become so accustomed to disclosing patient information that their voluntary breaches of confidentiality may be increasing. This could include such things as providing extensive information to managed care companies without first informing patients about what is being disclosed.

IV. LEARNING THE ETHICS OF “CONDITIONAL” CONFIDENTIALITY

For those who are unwilling to commit civil disobedience in order to protect confidentiality absolutely, what are the alternatives?  Can psychotherapists avoid the personal risks of absolute confidentiality and still protect patients’ confidentiality rights?  Is it possible to obey laws that require you to breach confidentiality and still avoid being an “informant”?

Professional Ethics Codes provide psychotherapists with some patient-protective alternatives to absolute confidentiality. However, Ethics Codes are broad documents, not confidentiality guidebooks, and ethical duties affecting confidentiality are scattered throughout each of the professional Codes.  This is apparent in the charts provided by the Center for Ethical Practice (2015).  Since lists that provide Ethical Standards in numerical order are not very helpful, these charts instead organize the relevant Ethical Standards into the three categories suggested by Knapp and VandeCreek (2006): (1) “Key Standard;” (2) “Clarification, Amplification, and Application Standards;” and (3) “Exceptions to the Key Standard.”  Fisher (2013) provides appendices with similar charts, using both numerical lists and lists by category, using the Ethics Codes for counselors, psychiatrists, psychologists, marriage and family therapists, and social workers.  This makes it easier for psychotherapists to understand how to remain ethical about this aspect of practice if they intend to place conditions on confidentiality rather than protect it absolutely.

However, these lists do not indicate how the laws that limit confidentiality will fit into the ethical picture. For that purpose, the Ethical Practice Model provided by Fisher (2008, 2012, 2013) can be useful for all psychotherapists.  For psychotherapists who think they want to offer their patients absolute confidentiality, it will help them prepare to see which laws they must be prepared to disobey in order to keep that promise.  For psychotherapists who offer their patients “conditional” confidentiality, they can prepare to explain the legally-imposed “conditions” to prospective patients.

A. Ethical Responsibilities

The Ethical Practice Model (Fisher, 2008) was constructed from psychotherapists’ Ethical Standards about confidentiality.   Unlike Ethics Codes, however, this Model breaks down ethical responsibilities about confidentiality into six discreet steps, presented in a logical sequence in which they are most likely to be applied in clinical practice. It also places into ethical perspective the laws that potentially limit patients’ confidentiality protections.

This Model is available online (Center for Ethical Practice, 2008) and is discussed in detail below.  However, as abbreviated, the six steps would be as follows:

STEP 1: Prepare
STEP 2: Tell Prospective Patients the Truth
STEP 3: Disclose Nothing Voluntarily Without Patient Consent
STEP 4: Respond Ethically to Laws that Demand “Involuntary” Disclosures
STEP 5: Avoid Preventable Disclosures
STEP 6: Talk About Confidentiality

In a more humorous vein, Fisher (2013) suggests that the steps of the Ethical Practice Model might be titled (and subtitled) as follows:

“STEP 1. Figuring Out How You Intend to Behave About Confidentiality
                 (or “Scrambling to Come Up With A Clear Plan Before the Next Intake”)

          STEP 2. Telling Prospective Patients Your Real Intentions About Their Secrets
                         (or “Now That I Know What I Will Do, Dare I Say So?”)

          STEP 3. Ensuring That Each Patient’s Consent is Properly Informed
                         (or “When is A Signed Consent Form  Not  Informed Consent?”)

          STEP 4.Withstanding the Vicissitudes of Practicing Ethically Under My State’s Laws
                         (or “What Can I Do About Those *** Reporting Laws and Subpoenas?”)

          STEP 5. Avoiding the Preventable Disclosures
                         (or “Talking Less, Training Staff, and Wearing Fewer Hats”)

          STEP 6. Refusing to Keep Confidentiality Problems a Secret
                         (or “Talking More About Confidentiality and Trying On Some New Hats”

(Adapted from Fisher, 2013, p. 41)

B. Legal Complications

It complicates matters that while the confidentiality standards in their Ethics Codes apply nationally, psychotherapists in each state face a different set of laws that affect their ability to protect patients’ confidences.  These laws can either protect or limit confidentiality, and some laws actually do both!

How do laws fit into the Ethical Practice Model?  Using the color-coded version of the Ethical Practice Model below, it is easy to place state laws and federal HIPAA regulations into ethical perspective. A similar annotated version of the Model is available online at the Center for Ethical Practice (2010),

             

A review of Figure 1 makes it clear why it is so important to learn at STEP 1 the laws that will apply in one’s practice or setting, since psychotherapists must be prepared to explain the implications of those laws to prospective patients at STEP 2 and prepared to respond to them in an ethical manner at STEP 4 whenever they arise.

Figure 2 lists the types of laws that might affect confidentiality.  In preparing to make decisions in advance, it can be helpful to begin by learning about the laws in Category I, since they can be useful in making arguments protective of confidentiality.  In considering how to respond to legal demands, it can be helpful to organize them according to the type of demand that is involved.  For example, your state’s laws that can limit your ability to protect patient confidentiality can be organized according to the types in Category II.  For an example of how this might be done, see the online version of “Virginia Laws Affecting Confidentiality” with links to each law (Center for Ethical Practice, 2014)

C. Using the Ethical Practice Model to Protect Patients’ Confidentiality Rights

Clients enter psychotherapy relationships hoping that they will be a safe environment for confiding their most important thoughts and feelings.  To have that information unexpectedly disclosed to others without their consent is naturally experienced as a betrayal.  Below, using the outline in Figure 1 that is based on recommendations from psychotherapists’ Ethics Codes, we elaborate on some of the actions that psychotherapists can take to protect patient confidentiality, and to inform them in advance about the limits of that protection.

STEP 1 – PREPARE

This step is the most important step in the Ethical Practice Model.  Its content is self-explanatory.

This step is not mentioned in psychotherapists’ Ethics Codes.  However, neglecting this step can make it impossible to effectively carry out all of the other steps which are ethically required.

Ordinarily, a therapist’s ethical obligations toward a client do not begin until the relationship begins.  However, like it or not, it is now impossible to practice ethically about confidentiality without spending time preparing to practice ethically.

In a 21st-century legal climate, protection of confidentiality rights may need to begin before the prospective client ever enters the consulting room. . . Unless they first inform themselves, therapists will be unable to accurately inform prospective patients about what confidentiality’s limits will be; and, unless they have made some important personal decisions in advance, they could easily find themselves unable to live up to some of the confidentiality promises they make at intake. (Fisher, 2012, p. 345)

The necessary preparation can be extensive, because it involves being clear about exactly what confidentiality policies will apply in the clinical settings where one practices, because these can vary from setting to setting.  Even more extensive is the work involved in planning how to respond to the legal demands that might arise at STEP 4.  “Pausing now to learn about each law, and the legal options available for responding to it, will simplify the decision-making process and will result in policies that are clearer and more likely to be implemented. Note that therapists would have no ethical obligation to tell patients about a particular law if they planned to always disobey that law in order to protect their patients’ confidences, but they do have an ethical obligation to be prepared to inform patients if they intend to obey that law and disclose patient information”  (Fisher, 2013, p. 53).

Therapists must take responsibility for engaging in personal decision making about each law that can require them to disclose information without patient consent. “This involves asking oneself such questions as, ‘Am I willing to risk the consequences of disobeying this particular law in order to protect a patient’s confidences?’” Therapists who answer “Yes” to that question are advised to be clear about the potential legal, financial, and personal consequences of disobeying that particular law in their own state. Therapists who answer “No” must instead be prepared to explain to prospective patients what this law might require them to disclose, when, and to whom. Either answer should be preceded by some serious personal soul-searching, which is probably the primary reason why therapists often fail to make clear decisions about this in advance. Yet, this may be the most important part of the preparation. (Fisher, 2013, p. 51)

As suggested in STEP 6, it can be helpful to collaborate with colleagues in gathering the ethical and legal information, clarifying one’s “bottom line” position about confidentiality, and preparing in advance for the foreseeable ethical/legal dilemmas.

STEP 2 – TELL PROSPECTIVE PATIENTS THE TRUTH ABOUT THE LIMITS OF CONFIDENTIALITY

This step of the Ethical Practice Model protects the informed consent rights of the prospective psychotherapy patient.  The only way for prospective patients to learn what the rules will be about confidentiality is for them to be informed in advance by their prospective psychotherapist. This is true even if they have been in therapy before, because the confidentiality rules and exceptions will vary from one practice setting to another.

If confidentiality will be absolute, the psychotherapist or psychoanalyst can decide whether or not to conduct this conversation; it is not ethically required if confidentiality will have no limits that patients needed to be warned about.  However, when confidentiality will be “conditional”, patients have a right to be informed about the conditions and potential risks before giving or renewing their consent to receive services.  The initial intake conversation is the place where we “inform the patient’s consent” to receive our services.  Without it, we are obtaining “UNinformed consent.” Unless we intend to protect confidentiality unconditionally, we have an ethical obligation to inform prospective patients about what the “conditions” will be. This ethical obligation appears in every therapist’s Ethics Code; and in many states this conversation is also legally required by statutes or licensing regulations.

Yet, mental health practitioners are often reluctant to meet this ethical and legal obligation.  When giving reasons why they do not inform prospective patients about all of the limits of confidentiality, psychotherapists’ give a range of explanations. Some say that beginning the therapy relationship with this conversation seems too much like giving a “Miranda Warning”: “Anything you say here might later be used against you.”  Others say they believe the conversation is “not relevant or necessary,” or that they want to deliberately avoid the “negative impact of explaining confidentiality’s limits;” or that they believe the patient “already has knowledge of the issue” or would be “unable to understand” the details (Somberg, Stone & Claiborn, 1993).

Some of these rationales ignore the fact that the limits of confidentiality can vary from clinician to clinician, and from setting to setting, making it impossible for any prospective patient to already have knowledge of the limits that a particular therapist will impose on confidentiality. For that reason, the initial conversation about it is essential, never irrelevant. Regarding the other rationalizations, it is true that the subject matter can be complex, but that fact does not absolve therapists of the ethical responsibility for trying to help patients understand it, first by providing the information in writing using reasonably understandable language, and then by explicitly providing patients with sufficient opportunity to ask questions and receive honest answers. (Fisher, 2013, pp. 70-71)

HIPAA requires that the psychotherapist’s intentions about confidentiality be presented to patients in writing in a “Notice of Privacy Practices.”   It is important that this document accurately reflect how the psychotherapist actually intends to behave about confidentiality and disclosure, because the HIPAA “Final Rule” (2013) now requires that the “Notice of Privacy Practices” contain the following statement: “Other uses and disclosures not described in the Notice of Privacy Practices will be made only with authorization from the individual” (p. 5623, emphasis added).  This means that before making any disclosure about which the patient was not forewarned here at STEP 2, the psychotherapist must obtain the patient’s explicit consent to release the information at STEP 3.

Finally, it is important to remember that informed consent is an ongoing process, not a one-time event or a signature on a consent form.  The conversation about confidentiality’s limits should be re-opened at any time it becomes clear that the patient does not remember what was said, or if the rules about confidentiality change, whether because of legal changes or policy changes in the setting.  Changes in patient circumstances can also trigger the need for further conversation about potential disclosures, especially if the patient mentions the possibility of becoming involved in a legal case that might trigger a demand for the psychotherapist’s records or testimony.

STEP 3 – OBTAIN “TRULY INFORMED CONSENT” BEFORE DISCLOSING ANY INFORMATION VOLUNTARILY

No information should be disclosed to anyone voluntarily unless the patient has given informed consent, either (a) in advance, at intake (i.e., at STEP 2, where the patient gives consent to accept the limits of confidentiality that will apply to all patients) or (b) by signing a patient-specific “consent for disclosure” form, whether at intake or any time thereafter (i.e., a t STEP 3).

A “Consent for Release of Information” form should include the name of the person to whom the confidential information is to be disclosed, the purpose of the disclosure, the nature of the information to be disclosed, and the date on which the consent will expire. Note that a signature on such a consent form will not qualify as “informed consent” unless the patient is first informed about what will be disclosed and is given the opportunity to consider the advantages and disadvantages of disclosing it.  From that informed posture, the patient can then give consent for it to be disclosed

Ethically, disclosure of identifiable patient information to any third party requires the patient’s informed consent.  This includes disclosures to family members and friends of the patient, as well as to agencies or other professionals. Regarding the sharing of information with other professionals who are providing services to the patient, it is true that the HIPAA regulations legally allow this without explicit patient consent, as long as the patient is advised of this policy in advance in the “Notice of Privacy Practices.” However, this does not meet most ethical requirements, because it is not possible at intake to know exactly what information might later be disclosed, or with exactly which providers it might be shared,   This is an example of the fact that just because something is legally allowed, it is not necessarily ethically or professionally appropriate.  Rather than relying on such “uninformed” consent, we advise that patients sign specific consent forms for disclosure to other providers, whether in the form of ongoing consultations or by providing records, and that their consent be informed consent.

For example, when clients request that their providers share records with another provider or entity, clients have a right and a need to know the content of the records.. This need and this right are included in the meaning of informed in the term informed consent and are based on respect for client autonomy and for people’s rights and dignity (Principle E, American Psychological Association [APA] Ethics Code, 2002). Clients may assume that their providers will share only positive information and may not be aware of the contents of their records. Yet, principles of confidentiality and client autonomy suggest that providers need to fully inform their clients about the nature and content of the records that will be released. The most complete way to fully inform clients is to share the record (or the information to be shared) with the client before sending it on. Only then is the client fully informed. (VandeCreek,  p. 373)

Regarding disclosures to third party payers, ethically speaking these are voluntary disclosures that require the patient’s informed consent. In other words, the fact that some person or entity is paying for the services does not, in itself, change the rules about confidentiality. This is true whether the payer is an insurance company, managed care company, agency, or family member. “Confusion about whether disclosures to insurance companies and managed care entities are actually “voluntary” can arise from the fact that, from the therapist’s point of view, these disclosures can feel coerced — “financially coerced.” But patients are free not to use their benefits, and the therapist is free not to sign provider contracts. From this point of view, therapists’ disclosures of treatment plans and other information is voluntary” (Fisher, 2013, p. 80).

Legally, HIPAA allows mental health professionals to disclose information for obtaining third party reimbursement, as long as patients were informed about this policy at intake in the “Notice of Privacy Policies.” However, there is an ethical problem if the informed consent process ends there. Clients who hear nothing further about the issue are not adequately informed about the potential risks, or about the information that will actually be disclosed.

First, clients who plan to seek third party reimbursement need to be informed of the risks, including the confidentiality risks:

Of all the disclosures that therapists ever make, including those in courtrooms, the information therapists provide for the purpose of obtaining third-party reimbursement may be the most likely to follow patients for the rest of their life. This makes it especially important not to short-change the informed consent process in this circumstance. . . During therapy and forever thereafter, information collected by third-party payers may be re-released to national data banks to join information from other health care providers, whence it may again be re-re-released based solely on the patient’s signature on a new application for health or life insurance. (Fisher, 2013, p. 81).

Second, the presence of such risks makes it especially important to inform managed care patients about exactly what information is being supplied before it is disclosed:

When clients request that their information be shared with an insurance company for reimbursement, psychologists can inform clients that information on insurance forms usually does not stop at the desk of the claims manager. In fact, the information likely is further shared with national data banks where the information can be accessed by other insurance companies when the client elects to purchase another insurance product or a large home mortgage. Psychologists can play a helpful role in teaching clients about the risks of sharing their health information, and this information should be shared with them at the beginning of service. (VandeCreek, 2008, p. 373)

Third, if the services are to be paid for by an agency such as Social Services or Court Services, the psychotherapist should clarify the confidentiality rules before providing the services.

It is recommended that, in such cases, the therapist obtain, in advance, a written contract with the agency that not only clarifies the services that will be provided but also stipulates the understandings about exchange of information. Unless such understandings are made clear to all parties in advance, the payer may later demand more information than the patient expected them to obtain, such as progress reports and diagnoses. (Fisher, 2014, p. 82-83)

Finally, it is important not to presume that a consent form obtained elsewhere adequately represents informed consent.

The fact that someone else has obtained the patient’s signature on a “Consent for Release of Information” form does not mean that the patient has been informed about exactly what information will be disclosed. In fact, if the consent is for the release of an entire treatment record, the therapist who created the record is the only person in a position to inform the patient about exactly what content is being disclosed. This means that a signature obtained by someone else likely represents not “truly informed consent” but “uninformed consent.” It is therefore important, when responding to consent forms obtained by others, to contact the patient (or former patient) and discuss exactly what information would be involved, as well foreseeable implications of disclosing or not disclosing it.  (Fisher, 2013, p. 79)

STEP 4 – RESPOND ETHICALLY TO LEGAL DEMANDS FOR “INVOLUNTARY” DISCLOSURE OF PATIENT INFORMATION

Several types of laws can affect patient confidentiality.  Some laws help mental health professionals protect patient information, whereas other laws require them to disclose information, even if the patient objects. Types of laws affecting confidentiality are listed in Figure 2.  A more detailed version of this outline is available as a resource on the website of the Center for Ethical Practice in either html format or pdf format.  There, the outline includes examples of each type of law, with links to specific state and federal laws in each category.

In STEP 1 of the Ethical Practice Model, the law-related tasks included: “Learn the Laws that Affect Your Ability to Protect Patients’ Confidences (Including Those that Help You Protect Confidentiality and Those that Limit It)” and “Decide How You Plan to Respond to Each Law that Can Limit Confidentiality.”  This requires some soul-searching about each type of law:

Therapists must take responsibility for engaging in personal decision making about each law that can require them to disclose information without patient consent. “This involves asking oneself such questions as, ‘Am I willing to risk the consequences of disobeying this particular law in order to protect a patient’s confidences?'”  Therapists who answer “Yes” to that question are advised to be clear about the potential legal, financial, and personal consequences of disobeying that particular law in their own state.  Therapists who answer “No” must instead be prepared to explain to prospective patients what this law might require them to disclose, when, and to whom. (Fisher, 2012, p. 346).

Here at STEP 4, when you actually face legal demands for information, those decisions you made in STEP 1 can be put into practice. With that preparation, you can often anticipate legal demands and can prepare patients to respond proactively in their own behalf.  Ordinarily, the first action when responding to a legal demand is to inform the patient (or ex-patient) that confidential information has been sought.  If the patient, informed about the implications, wants you to disclose the information that is being legally demanded, then s/he can sign a consent form.  At that point, this becomes a STEP 3 procedure.  But if the patient does not want you to disclose the information that is being legally demanded, then your task here at STEP 4 is to engage in actions that protect confidentiality to the extent legally possible.  When appropriate, you can collaborate with the patient’s attorney in that process. Details of some possible responses are outlined in a later section, “Challenge: Protecting Confidentiality to the Extent Legally Possible.”

Where legal issues are involved, attorneys are often involved.  As noted at STEP 1 of the Ethical Practice Model, it can be important to identify, in advance, an attorney who can be your consultant if legal issues arise.  It should be someone who is familiar with mental health law in your state and who will respect and support your position about protection of confidentiality. Do not accept legal advice from the person who is sending you a subpoena or other legal demand.

Unfortunately, many attorneys do not understand that psychologists have limited discretion for releasing records. Attorneys representing patients (or sometimes attorneys representing parties adverse to the patient’s interests) may misinform psychologists of their legal obligations and instruct them to release records in response to a subpoena alone. Do not be bullied by these tactics. It is best to seek legal consultation in situations in which the requirements are unclear. (Bennett et al., 2006, p. 111)

In a later section, there are more detailed recommendations about responding to legal demands.  See “Can You Avoid Being an Informant?” below.

STEP 5 – AVOID “AVOIDABLE” BREACHES OF CONFIDENTIALITY

Unlike the previous step, the protective actions in STEP 5 are usually entirely within the psychotherapist’s control. This includes abstaining from “informal” discussions about patients with colleagues who have no professional reason to know about the case.  It also includes conversations that might fall in the category of “gossip.”  For example, Woody has suggested that “a substantial number of well-meaning mental health practitioners inadvertently lower their guard and inappropriately reveal confidential information to family members and others” (Woody, 1999, p. 607).

Some of the avoidable confidentiality pitfalls are listed in Figure 3.  The categories are largely self-explanatory, but Fisher (2008, 2012, 2013) has provided detailed discussion of each category.

 

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The Center for Ethical Practice is approved by the American Psychological  Center for Ethical Practice is approved by the American Psychological Association (APA) to sponsor continuing education for psychologists. The Center maintains responsibility for this program and its content.

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The Center for Ethical Practice has been approved by National Board for Certified Counselors (NBCC) as an Approved Continuing Education Provider (ACEP No. 6768). The Center is solely responsible for all aspects of the programs. Programs that do not qualify for NBCC credit are clearly identified.

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The Center for Ethical Practice (provider #1287), is approved as an ACE provider to offer social work continuing education by the Association of Social Work Boards (ASWB) Approved Continuing Education (ACE) program. Regulatory boards are the final authority on courses accepted for continuing education credit. ACE provider approval period: 3/21/2021-3/21/2024. Social workers completing this course receive 2 ethics continuing education credits.

 

 

The Center for Ethical Practice
977 Seminole Trail, Charlottesville VA 22901
Tel: 434-971-1841
CenterForEthicalPractice.org