Can I Communicate With My Adult Patient’s Caregiver?
Caregivers (who many times are family/friends/guardians) of adult individuals with mental illness can play a vital role in the patient’s psychiatric treatment, often providing important background information that may not be gleaned from an in-office visit, such as information related to patient compliance and troubling behavior patterns, as well as providing physical care and support for the patient. A recent study, however, indicated that a large percentage of these caregivers felt excluded from the patient’s care because health care providers refused to discuss the patient’s condition with them due to concerns about violating federal/state privacy laws.
Generally, under the Health Insurance Portability and Accountability Act (HIPAA) and state privacy laws, although providers can always receive information about their patients, they cannot disclose patient information without patient consent, particularly mental health/substance use information. Under certain circumstances, however, the HIPAA privacy rule recognizes the integral role that family and friends play in a patient’s health care, and allows routine—and often critical—communications between health care providers and some third parties. While there are no easy answers, the Department of Health and Human Services addresses these situations and answers the following questions in detail about HIPAA and mental health on its website at http://www.hhs.gov/hipaa/for-professionals/special-topics/mental-health/.
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Does HIPAA allow a health care provider to communicate with a patient’s family, friends, or other persons who are involved in the patient’s care?
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Is a health care provider permitted to discuss an adult patient’s mental health information with the patient’s parents or other family members?
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When does mental illness or another mental condition constitute incapacity under the privacy rule? For example, what if a patient who is experiencing temporary psychosis or is intoxicated does not have the capacity to agree or object to a health care provider’s sharing information with a family member, but the provider believes the disclosure is in the patient’s best interests?
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If a health care provider knows that a patient with a serious mental illness has stopped taking a prescribed medication, can the provider tell the patient’s family members?
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What options do family members of an adult patient with mental illness have if they are concerned about the patient’s mental health and the patient refuses to agree to let a health care provider share information with the family?
Remember that state privacy laws apply and often require more stringent protections than HIPAA; thus, it is important for you to be aware of all applicable laws. Please note also that “psychotherapy notes” as defined and maintained under HIPAA receive a heightened level of protection from disclosure and may not be disclosed without patient authorization.
Before disclosing patient information to an adult patient’s caregiver, psychiatrists should keep in mind the following risk management considerations:
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Know your state’s laws regarding patient privacy in addition to HIPAA.
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Understand your state’s duty to warn laws.
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Seek the assistance of an attorney in the state in which you practice to develop policies and guidelines for sharing and/or releasing patient information to third parties.
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Inform patients at the outset of your policy on communicating with others and under what circumstances that would occur.
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Obtain necessary consents, if possible, at the outset of treatment.
Lawful communication with an adult patient’s caregivers can often help psychiatrists deliver quality care and is not necessarily prohibited by federal and state privacy laws. Psychiatrists should understand their obligations under applicable privacy laws and should consult their local attorney or risk management professional before disclosing information without the patient’s or legal guardian’s consent.
For other risk management topics, please see the online risk management courses available on APA’s Learning Center risk management page. ■
This information is provided as a risk management resource and should not be construed as legal, technical, or clinical advice. This information may refer to specific local regulatory or legal issues that may not be relevant to you. Consult your professional advisors or legal counsel for guidance on issues specific to you. This material may not be reproduced or distributed without the express, written permission of Allied World Assurance Company Holdings, AG (“Allied World”). Risk management services are provided by or arranged through AWAC Services Company, a member company of Allied World.
Biographies
Moira Wertheimer, J.D., R.N., is assistant vice president of the Psychiatric Risk Management Group of AWAC Services Company, a member company of Allied World.
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Published online: 24 June 2016
Published in print: June 18, 2016 – July 1, 2016
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