Confidentiality Issues Present More Pitfalls Than Ever

The following questions raise issues about the expanding scope of confidentiality concerns that psychiatrists face today.

A. It is quite common for psychiatrists in private practice to outsource to third parties a variety of functions such as transcription services, billing services, collection agencies, record-storage companies, and telephone-answering services. While there are many relevant general-business issues to consider before outsourcing a function, such as reputation of the entity to whom you outsource, the most important professional liability concern is the issue of patient confidentiality. Because psychiatrists remain primarily liable for safeguarding the security and confidentiality of patient information under state and federal laws, as well as ethical requirements, care must be taken when outsourcing any function that involves the disclosure of confidential patient information.

Confidentiality agreements with third parties accessing patient information are recommended for all psychiatrists, and in some cases may be required by law. For example, psychiatrists who are required to comply with the Health Insurance Portability and Accountability Act (HIPAA) are required under the federal privacy rule to have business-associate agreements with third parties that access patient information. These agreements address the third party’s duty to maintain confidentiality. In these agreements, psychiatrists may want to prohibit third parties from redisclosing patient information to others, such as the third party’s subcontractors, without the psychiatrist’s approval. Approval for any such redisclosure should be conditioned on the subcontractor’s entering into a confidentiality agreement with the third party. Nonetheless, psychiatrists considering allowing the release of information beyond our nation’s borders should understand that it may not be possible to enforce an agreement made with a party outside the United States.

Several states are considering enacting laws related to the outsourcing of medical and other personal information. California, for example, has several bills pending, including at least one that would prohibit physicians and facilities from outsourcing medical information abroad.

A. No—absolutely not. While losing your supply of free samples may cause short-term hardship for some, drug company sales representatives may be more easily replaced than the trust of your patients.

As you know, good psychiatric care requires that the psychiatrist maintain patient confidences with regard to information revealed during sessions to the fullest extent possible. This means that only those individuals necessary for treatment should be present. Generally this means only the psychiatrist and the patient, but there may be situations in which a family member, caregiver, or other significant person also might be present. To insist upon or invite individuals who have no clear, direct association with the patient’s treatment to attend sessions could well be construed as unethical or illegal behavior.

Conceivably, the patient could give permission to allow an observer into the session, but whenever considering treatment-related activity, the analysis for the psychiatrist always starts with the question, “How will the patient benefit from this course of action?” While observing the psychiatrist at work might make for a better drug representative, it is difficult to fathom how the patient would benefit as a result of being observed. Additionally, whatever training the drug representative is referring to is probably not the kind of training that is primarily intended to benefit patients. This scheme raises the very serious possibility of exploiting the patient. ▪