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Confidentiality: Its Limits and Uses

by Edward Bruce Bynum, Ph.D., A.B.P.P.


There is a mounting crisis in one of the residence halls. A professor has been aware for several weeks now of a student’s conflicts, communicated in vaguely suicidal and sometimes bizarre written statements to the professor. The roommates have noticed a change, especially in the last three or four days. There has been a shift in eating and sleeping patterns. Everyone has noticed his ability to concentrate has really gone down. One evening, inexplicably, the student seems to explode after the smallest provocation. After that, the student withdraws into his room, prompting a resident assistant to contact the University Health Services and the UMass police. After a confrontation and a contact with University Health Services, the student is transported to a local hospital. Everyone in the residence hall knows about this. Then after four days, the student is back in the dormitory and not a word is said. Everyone is bewildered and anxious. What are we to do?
    Often in the university community there is a perceived conflict of interest between the rights of privacy and confidentiality and the right, and perhaps the need, of the wider community to be aware of a difficult and sometimes serious stress to the health and safety of the community. This can occur not only in the above situation, but in many others. For instance, a family's concern about their son or daughter whom they have not spoken to for months. The student is actually a patient at the University Health Services’ Division of Mental Health and actively does not wish to speak with their family. Also, in the situation described in the hospitalization case, the student may not want the parents to know about this at all and does not want the bills to go to the parents’ home. Another is a situation in which there are legal ramifications brewing after an incident in the community. The persons involved wish to keep this very private until the situation is clarified, yet all the time the community, newspapers, and the administration are very concerned and want information because of potentially negative effects on other staff, faculty, and students. The University Health Services’ Division of Mental Health may see a student, faculty, or staff member whose child is considered at risk or involved in some other complicated situation, and there needs to be privacy for the family while simultaneously addressing the community's concerns, both clinically and legally.
    More often than you might imagine, the University Health Services Division of Mental Health has been in these complicated situations and must “sit on” sensitive information that is critical to all concerned. Of course, the "identified" patient always has the right to share their information with other professionals, physicians, psychologists, and clinical social workers. Permission for a mental health professional to release information is secured only by written permission. Forms are easily gotten for this at the University Health Services. Most often, however, individuals wish to keep such intimate situations confidential and to themselves and therefore invoke statutory laws of confidentiality on their side.
    All the situations described above bring to light subtle and complicated legal, ethical, and clinical issues around confidentiality. After all, confidentiality is one of the cornerstones of effective psychotherapy. Assurances of confidentiality communicate respect, dignity and autonomy to the patient by both the psychotherapist and the larger community of which the institution is a part. Without confidential communication, there can be no trust nor the sustained empathy necessary for work and exploration of intimate material in the person’s life. The right to confidentiality and privacy of records extends even beyond the death of the patient!
    The United States Supreme Court has even taken note of the importance of confidentiality specifically in the psychotherapeutic context. They have stated that

“Effective psychotherapy . . . depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories,
and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.” (Jaffee vs. Redmond, 518 U.S.1.)

Indeed, it is a cornerstone of the Ethical Principles of Psychologists and Code of Conduct (American Psychological Association, 1992) and laws of the state of Massachusetts. Psychiatry and clinical social work have similar ethical and professional requirements. In the case of the clinical psychologist, the ethical principles clearly state that “Psychologists have a primary obligation to take reasonable precautions to respect the confidentiality rights with whom they work or consult, recognizing that confidentiality must be established by law, institutional rules, or professional or scientific relationships.”
(Standard 5.02) The statutory laws of the state of Massachusetts indicate that “all communications between a licensed psychologist and the individual with whom the psychologist engages in the practice of psychology are confidential.” (Massachusetts General Law, Chapter 112, Section 129A)
     In general, then, the guidelines are the following. A clinician has both an ethical and a legal obligation to keep information confidential unless a patient consents in writing to reveal this information. A student, faculty, or staff who receives treatment at the University Health Services is, in addition to being a faculty, student, or staff, is also a patient. It is this legal status of being a patient that gives rise to the mental health provider's duty to protect confidentiality. The clinician is free to attempt to persuade the patient to release information if it appears to be in the patient's best interest. However, even in circumstances like these, the patient may at times elect not to do so.
     There are, however, a few legal, clinical, and ethical situations that do recognize the limits of individual confidentiality and the greater need of the community to know. These situations generally focus on some imminent threat to health or safety. Disclosure of confidential information without or over the consent of the patient can occur in the following limited circumstances. All health care professionals are mandated to report suspected abuse or neglect of a child, elderly adult or disabled person. This is a situation in which confidentiality rights are trumped by the need to protect those who are more vulnerable. Second is a court order when the court has decided the data held in confidence sheds significant light on the “truth finding mission” of the judicious proceedings. The third situation is when there is an imminent threat to seriously harm an identified individual in a community, together with means and intent to carry out the threat. This is the Tarasoff duty to warn principle. Each state has a subtle variation on this duty to warn an individual of impending danger.
     The last is rather new and involves the insurance industry and their requirment to gather information for acute or longer term care, based on criteria for "clinical necessity". Generally, managed care plans will provide up to 8 outpatient mental hath sessions without review. However, when there is a request for insurance payment beyond 8 sessions, or for more acute care such as inpatient treatment, there generally is a requirement for your mental health provider to provide clinical data that would establish clinical necessity. While the managed care insurer is obliged to keep this information confidential within its organization structure, if that organization structure changes, such as may occur in a corporate acquisition, that information may then be accessed by other health care systems within the new structure. Some feel uncomfortable with this release. It generally is a good idea to discuss this with the provider and/or your insurer.
     It is important to repeat that because a parent or faculty or staff may wish to know about a student or other significant other’s psychological or emotional state when that person is not deemed at imminent risk, suicidal or psychotic or at risk of injury to themselves or to others does not therefore free the mental health clinician from the legal and ethical duty to protect confidentiality. This at times can feel quite absurd to the family or staff member of the person involved, since they are aware this person is actually seeing the clinician. In such situations, a delicate negotiation may ensue. However, the guiding principle is the right to confidentiality, except in those narrowly prescribed circumstances, as outlined by Federal Law, Massachusetts Law and Professional Codes of Ethics. Without this as assurance of confidentiality, psychotherapy cannot proceed.

REFERENCES

Behnke, S.H. Year 2000, Confidentiality at Student Health Services: Private Rights, Community Interests. Published by Massachusetts Psychological Association
Quarterly, Volume 44, Number 2 – 3, Pp. 33- 36

“The Ethical Principles of Psychologists and Code of Conduct,” American Psychological
Association, Washington, D.C., 1992.


© 2000 Obelisk Foundation, Inc.