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Considerations of privacy and confidentiality are an integral component of any psychiatric encounter. Aspects of privacy and confidentiality relating to communication with other medical professionals and with sources of collateral information have been discussed above ( Sections I.A , I.B, II.C, and IV.A.2). In general, the default position is to maintain confidentiality unless the patient gives consent to a specific intervention or communication. However, the psychiatrist is justified in attenuating confidentiality to the extent needed to address the safety of the patient and others (10, 11). This includes the ability to communicate necessary information about the patient to medical personnel in the context of an emergency situation. It is also permissible for the psychiatrist to listen to information provided by family members and other important people in the patient's life, as long as confidential information is not provided to the informant.

The Health Insurance Portability and Accountability Act (HIPAA) contains guidelines for release of the results of psychiatric evaluations. State laws may be more restrictive, and if so, state laws take precedence over HIPAA. According to HIPAA, information can be released without a specific consent form for purposes of "treatment, payment, and health care operations." Otherwise, patients must sign an authorization form that indicates the information to be used or disclosed, the purposes to which it will be put, the recipient of the information, and an expiration date. HIPAA gives special protection to psychotherapy notes if they are kept in a separate part of the medical chart (193, 194). The interpretation of HIPAA and other federal and state laws about confidentiality continues to evolve, and legal or risk management consultation should be sought if there are questions about the regulations related to release of information and protection of psychiatric records (195).

For individuals in treatment for substance use disorders, the provisions of 42 CFR '§2.11 will apply (196) and will generally be more strict and supersede the provisions of HIPAA (197). As with HIPAA, necessary information may be disclosed to medical personnel in the context of treating a condition that poses an immediate threat to the health of any individual and that requires immediate medical intervention. Under such circumstances, documentation in the medical record needs to include "the name of the medical personnel to whom disclosure was made and their affiliation with any health care facility; the name of the individual making the disclosure; the date and time of the disclosure; and the nature of the emergency" (42 CFR '§2.51 [196]).

Medical records may also be viewed by others in addition to the clinician writing the note (198) or other members of an interdisciplinary treatment team. These include third-party payers, quality assurance/peer review evaluators, the patient, and, in certain jurisdictions, the executor of an estate after a patient's death. Furthermore, records may be part of future or current legal or administrative hearings, including disability litigation, divorce and custody adjudication, competency determinations, and actions of medical licensing boards. Such accessing of patient's medical records needs to be taken into consideration when documenting the evaluation, formulation, diagnosis, and plan of treatment.

References

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