"Medical Records Confidentiality: Issues Affecting the MentalHealth and Substance Abuse Systems"

[Peter Marshall <techdiff@ix.netcom.com>]

http://www.medscape.com/SCP/DBT/1999/v11.n03/d5766.petr/d5766.petr-01.html
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Public Health

Medical Records Confidentiality: Issues Affecting the Mental Health and
Substance Abuse Systems

John Petrila, JD, LLM

[Drug Benefit Trends 11(3):6-10, 1999. © 1999 SCP Communications, Inc.]

Abstract

Confidentiality is a particularly important principle in the provision of
mental health and substance abuse treatment. This is because such treatment
often can be successful only if the individual discloses material that is
intensely personal. However, the current legal framework for protecting
confidentiality in this context is often inadequate and confusing. This
article discusses the role of confidentiality in treating mental health and
substance abuse disorders, the current state of the law, and suggestions for
issues that policy makers might consider in strengthening confidentiality
protections.

Introduction

Few relationships depend as much on an individual's willingness to sacrifice
privacy as the relationship between health care provider and patient.
Because the forced intimacy of the treatment relationship often requires the
disclosure of information that many people would prefer to keep private,
keeping the relationship and details of it confidential has been a matter of
long-standing concern. For example, the Hippocratic oath states that
"whatever in connection with my professional practice, or not in connection
with it, I see or hear in the life of men, which ought not to be spoken of
abroad, I will not divulge, as reckoning that all such should be kept
secret."

The ethical codes of the health care professions also embrace
confidentiality as a major principle.[1,2] The issue has emerged as a major
concern for American citizens, many of whom believe that the privacy of
health care information is not protected as strongly as it should be.[3] In
fact, many characterize confidentiality as a cornerstone of the clinical
relationship.[4]

While confidentiality is a core value, it is not absolute. On occasion, the
law mandates or permits breaches of the confidential treatment relationship.
Examples include child abuse reporting laws and statutes that permit
physicians in some circumstances to make limited disclosures of information
to sexual partners of individuals who are HIV positive.[5-7] In addition,
confidentiality increasingly may be breached outside of the context of the
treatment relationship. Because of changes in the health care system and the
rapid evolution of technology, information disclosed initially for treatment
may be disseminated far beyond the confines of the treatment relationship.
Other parties (eg, companies providing utilization management and companies
seeking health care information for marketing purposes) now routinely come
into possession of such information, and on occasion those parties may
utilize such information in ways that may be inappropriate.[8]

In response to growing public concern regarding the privacy of health care
information, Congress has committed itself to the creation of a national
standard for protecting health care information by August 1999.[9] While
there is no assurance that this deadline will be met, it is evident that
confidentiality has emerged as a core issue in the ongoing debates about the
health care system. This article discusses the issue of confidentiality in a
specialized context -- the treatment of mental illness and substance abuse
-- where concerns regarding the privacy of the clinical relationship may be
even more acutely felt.

The Importance of Confidentiality

The ethical and legal principle of confidentiality is anchored in a set of
values and assumptions about the treatment relationship and the consequences
of disclosing private information. In the context of treating mental
illness, these values include the following.

First, confidentiality is considered important because of the continuing
stigma that is often associated with seeking mental health treatment. Until
the late 1960s, the law often endorsed discrimination against people with
mental illness. Because a diagnosis of mental illness was often equated with
incompetence in decision making, treatment could result in the loss of key
civil rights, including the right to enter into a contractual relationship,
the right to vote, and the right to execute a will. While these legal
consequences have generally disappeared, mental illness still may cause
negative consequences for the individual. For example, it is worth noting
that before the recent political preoccupation with sexual issues, a way of
discrediting an opponent politically was to reveal that he or she had been
treated for mental illness. Examples included the attempted theft of Daniel
Ellsberg's psychiatric records after he disclosed the Pentagon Papers; the
removal of Senator Thomas Eagleton from the Democratic ticket in 1972 after
it was revealed that he had undergone electroshock treatment for depression;
and the distribution to the media during the 1992 elections of the treatment
records of a Congressional candidate who had been treated for
depression.[10]

Confidentiality also is considered important in creating trust in the
clinical relationship. Many mental health professionals assume that mental
health treatment is most likely to be successful only when the client trusts
the clinician.[11] The United States Supreme Court endorsed this assumption
in a recent case creating a psychotherapeutic privilege in federal court
proceedings. The Court wrote 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."[12]

The creation of trust as a predicate for treatment may be particularly
important when the prescribed treatment consists of verbal therapies in
which the person is asked to be as unguarded as possible. Disclosures in
this context, described by one commentator as "confessional" in nature, may
be particularly important to protect because they often reveal material that
is fundamentally private.[13]

Confidentiality also advances the related values of privacy and autonomy. In
the past 3 decades, the law has given increased weight to the value of
privacy, while expanding individual autonomy in health care decision making.
Confidentiality is important because of its assurance that individuals will
have privacy in the health care relationship, which in turn may increase the
likelihood that people will exercise autonomy by seeking needed
treatment.[14]

Research suggests that these assumptions have at least some empiric footing.
For example, a number of studies suggest that the relative strength of
confidentiality protections can play an important role in individual
decisions to seek or forgo mental health and substance abuse
treatment.[15-18] In particular, the willingness of a person to make the
self-disclosures necessary to such mental health and substance abuse
treatment may decrease as the perceived negative consequences of a breach of
confidentiality increase.[19,20]

Current Legal Framework for Protecting Confidentiality

Given the general consensus regarding the importance of confidentiality and
its standing with practitioners and patients, one might anticipate that the
legal system would provide clear and unambiguous protection of information
disclosed in the treatment relationship. In fact, each state and the federal
government have laws designed to protect the confidentiality of health care
information in general and mental health information in particular. However,
these laws have been described as a "crazy quilt of federal and state
constitutional, statutory, regulatory and case law" that "erodes personal
privacy."[21]

Despite these laws, or perhaps because of weaknesses in them, a group
charged by Congress with advising the Secretary of Health and Human Services
on a possible federal confidentiality standard concluded that the United
States "is in the midst of a health privacy crisis... Major contributing
factors are ongoing institutional changes in the structure of the health
care system and the lack of modern privacy legislation.[22]

The laws protecting the privacy of mental health and substance abuse
treatment information are subject to the same criticisms. Most would agree
that the protection of mental health and substance abuse treatment
information is important. However, most also would agree that the current
legal framework for doing so is inadequate in many places, confusing in
others, and difficult to apply in a health care environment that is much
different than the environment in which many state mental health laws
initially were adopted.

There are several problems with existing laws. First, state laws govern the
confidentiality of mental health records and information, while federal law
controls the confidentiality and release of information gathered during
substance abuse and alcohol treatment. This distinction exists both for
historical and policy reasons. Traditionally, confidentiality law has been
left to the states; because the treatment of serious mental illness
historically has been a state function, the confidentiality of mental health
information, like the confidentiality of general health care information,
has been a matter of state and not federal law. However, in the early 1970s,
the creation of incentives for people to enter substance abuse treatment
became a matter of federal concern. Most drug-related activity, including
the disclosure of information during treatment, could become the basis of
criminal prosecution. Congress, concluding that this made it less likely
that people would enter treatment, enacted a strong confidentiality law to
strictly limit disclosure of information that could identify an individual
as receiving drug or alcohol treatment.[23,24] This means, as a practical
matter, that practitioners providing treatment to individuals with both a
mental illness and a substance abuse diagnosis may have to refer to 2
different laws -- one state, the other federal, in determining whether and
under what circumstances information can be released.

Second, state mental health confidentiality laws provide varying degrees of
protection. For example, it is generally assumed that treatment information
should be released only with the consent of the patient in most situations.
This assumption flows from the premise that information disclosed in
treatment presumptively belongs to the individual making the disclosure.[25]
However, few states specify in statute the elements of a valid consent to
disclosure of mental health information. As a result, consents to disclosure
are often open-ended, do not describe with any degree of specificity the
parties to whom disclosure is to be made and the amount of information to be
disclosed, and provide little notice to the individual regarding possible
redisclosures of information.[26] While most proposals to create a national
standard would create standards for a valid consent (and the federal
substance abuse law already does), most state mental health laws do not
address this subject.

In addition, while all states create exceptions to confidentiality, state
laws vary as to whether consent is required for certain types of
disclosures. The following types of disclosures of mental health information
without client consent are permitted in at least some states[27]:
disclosures to other treatment providers; to payers of health care services
or other sources of financial assistance to the client; to third parties
that the mental health professional concludes might be endangered by the
patient; to researchers; to agencies charged with oversight of the health
care system or practitioners; to families in some circumstances; to law
enforcement officials in some circumstances; and to public health officials.
However, states do not address these exceptions in a uniform manner, which
is an increasing concern for providers and payers that do business across
state lines.

When disclosure without client consent is permitted, it reflects a judgment
that other values supersede the importance of confidentiality. For example,
permitting a mental health professional to warn a third party that he or she
might be endangered by a client reflects a judgment that the safety of third
parties should take precedence in that situation. Permitting disclosures of
certain types of information to public health officials reflects a
long-standing preference for enabling public health officials to take
actions necessary to promote the public health, even if that means that in
some circumstances individual rights must yield. Confidentiality is not
absolute; most would agree that there are circumstances in which it should
give way.

At the same time, many state mental health laws were written before the
changes of the past decade swept the health and behavioral health care
systems. As a result, confidentiality laws written in one era can have
unintended consequences in a new era. For example, state laws permitting
disclosure without client consent of information necessary to obtain
reimbursement for services were often written before the emergence of
utilization review systems that insist on the repeated disclosure of
significant clinical information. In other words, the amount and type of
information requested today is often far in excess of what was required to
obtain reimbursement when many state mental health laws were written. In
addition, these laws were written before the emergence of technology that
enabled the storage and rapid dissemination of vast amounts of health care
information. Today, a $15 billion "health information technology industry"
exists, designed to support the national and in some cases international
health care enterprises that have emerged in the 1990s.[28] State mental
health laws in many states are virtually blind to the emergence and impact
of this industry.

State mental health confidentiality laws in other circumstances may create
barriers to exchanges of information that could improve care. For example,
some states permit only limited disclosures of information between
providers, or do not address the question at all. In general, obtaining
consent to such disclosures is to be preferred. However, in the time that
has elapsed since many state mental health laws were adopted, networks of
providers, bound by contractual relationships, have emerged as primary
caregivers in many places. State laws often do not recognize this
development; on the other hand, revised state laws might facilitate the
exchange of information within such networks by describing what types of
consents would permit such exchanges to occur. In particular, state law
could facilitate the use of single consent forms by a provider network. The
providers within the network could be listed on the form, so that the
individual would be informed regarding where information might be
disseminated: the use of a single form might ease an administrative burden
in providing continuity of care within the network.

In short, state mental health laws vary from state to state and are often
inconsistent with the federal law governing substance abuse and alcohol
treatment. The laws were written in an environment starkly different from
the current health care environment, and so may not address the types of
confidentiality questions that are most important today. The federal law
provides stricter protection for substance abuse and alcohol treatment
information than most state laws do for mental health information, but the
differences between state and federal laws may create difficulties in
administration for providers treating people with dual diagnoses. The
current legal framework needs revision. The question is, What shape will
such a revision take?

Issues for Policy Makers

A threshold question is whether reform should occur at the national or state
level. While the confidentiality of health care information generally has
been left to the states, there has been since the mid-1990s significant
interest in Congress in creating a national standard. A variety of proposals
for creating one have been introduced in Congress, including proposals
introduced by Representative Jim McDermott (D-WA),[29] Representative Gary
Condit (D-CA),[30] Senators Bob Bennett (R-UT) and Connie Mack (R-FL),[31]
Senators Edward Kennedy (D-MA) and Patrick Leahy (D-VT),[32] Senators James
Jeffords (R-VT) and Christopher Dodd (D-CT),[33] and HHS Secretary Donna
Shalala on behalf of the Clinton Administration.[34] Each proposal, in
creating a national standard, would extend the obligation to protect the
privacy of health care information beyond the treatment relationship to at
least some of the other parties (eg, insurance companies, researchers) that
come into possession of otherwise confidential information. Each would also
strengthen penalties for unlawful breaches of confidentiality, and each
would create explicit requirements for consent to disclosure, while
detailing when, if ever, disclosure might occur without individual consent.

The proposals do differ in some critical areas, primarily regarding the use
of consent as a predicate for disclosure. Some of the proposals would
require consent before every disclosure, while others would permit use of a
single consent to cover multiple disclosures. At least 1 of the proposals
would create a presumption that the individual consents to disclose
information to other providers and to payers of service; individuals could
"opt out" of specific disclosures, but otherwise the practitioner would have
the discretion to disclose information to providers and payers without
explicit consent.[35]

Each proposal would create a minimum standard that states would have to
meet. States would be free to create greater protections for confidentiality
than the federal standard, and so the current confusion among state laws
would not be completely eliminated. This makes resolution of some of the key
differences between the proposals important: Whether a national standard
requires consent before each disclosure or presumes consent in many
situations has obvious ramifications because the former is a much stronger
standard than many states currently have, while the latter is weaker than
the standards of a significant number of states. Most of the proposals
before Congress would also leave intact the federal laws protecting the
confidentiality of substance abuse and alcohol treatment information, which
means that the current dual standard that governs the privacy of behavioral
health care information (ie, state law controls mental health information
and federal law controls substance use information) would be maintained.

In addition, none of the proposals address mental health information as a
separate issue. Rather, such information is treated the same as general
health care information, and would be subject to the same standards.
Therefore, if a primary care physician was in possession of behavioral
health information, he or she would be bound by the new national standard
(if the new standard was more protective of confidentiality than the state
in which he or she practiced) or the applicable state law (if the state law
was more protective).

Regardless of the ultimate outcome of the debate over a federal standard,
states may begin to reconsider the laws governing the confidentiality of
mental health information in light of the changes that have transformed the
behavioral health care field. As noted earlier, some changes, for example,
establishing requirements for valid consent, would be comparatively simple.
Others, such as establishing new standards for disclosures to payers or for
disclosures within networks of providers, might be more difficult to
accomplish, because of differing views among consumers, practitioners, and
other parties regarding the role of consent in such situations. However, the
effort may lead to stronger confidentiality protections in an area where the
lack of protection appears to cause at least some individuals to forgo
potentially helpful treatment.

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