Lawyer Offers Warnings About Confidentiality Pitfalls

In 1996 the U.S. Supreme Court established a federal-level psychotherapist-patient privilege in Jaffee v. Redmond, which stated that effective psychotherapy depends on an atmosphere of trust in which the patient is willing to disclose emotions, memories, and fears freely to his or her therapist.

The Department of Health and Human Services issued more comprehensive medical privacy regulations in April that will require that physicians keep two types of patient records, said Willick. The regulations will go into effect in April 2003.

Psychiatrists will need to keep regular medical records and a separate set of psychotherapy notes, which the regulations define as notes analyzing or documenting the contents of conversation during a private counseling session.

The reason for the separation of the psychotherapy notes is their enhanced protection under the new federal rules, said Willick. “If psychiatrists start keeping medical records and psychotherapy notes together, there is a heightened chance that the notes from therapy sessions will be disclosed to a third party,” he cautioned his audience. The third party might be a managed care or health insurance company, for example. “Health plans and insurers cannot require the disclosure of psychotherapy notes as a condition of enrollment or treatment, but they can require disclosure of a patient’s medical records,” he said.

But that’s not all. Under the new regulations, patients have the right to see both types of records and identify parts they believe are wrong and want corrected.

In California, according to Willick, when a patient demands to see his or her records and the psychiatrist refuses to comply with the request, “that refusal can result in an ugly complaint to the psychiatrist’s medical licensing board.”

Sometimes, however, disclosure of psychotherapy notes is not protected, he stressed. For example, if a patient makes a threat against a third party during a psychotherapy session, the psychotherapist is permitted, and in some states required, to disclose the threat.

For example, Willick filed an amicus brief on behalf of the California Psychiatric Association to protect the confidentiality of psychotherapy sessions in the high-profile murder case of Lyle and Eric Menendez, who confessed during a session with a psychologist to shooting and killing their parents. He explained that in two other counseling sessions the brothers threatened their therapist with violence if he disclosed the confession.

At that point, said Willick, the psychologist was required to testify in court about the threat to his safety and thus about the content of the session that produced the threat—the murders. The Menendez brothers were convicted in large part due to this testimony.

Willick warned psychiatrists not to disclose psychotherapy notes in more typical forensic situations, such as personal injury cases. If a patient of a psychiatrist is in an auto accident, for example, and sues the other driver claiming to be suffering emotional distress, the patient’s lawyer will likely ask the psychiatrist for the patient’s records to use in the lawsuit. “Never hand those records over unless the patient signs a release form permitting the disclosure,” advised Willick.

If an attorney does subpoena a patient’s records, to what extent should the therapist fight to keep those records private? Should the therapist necessarily hire an attorney to protect this information? “No,” said Willick. “After you inform the patient that someone is trying to subpoena those records, it is the patient’s obligation to try to quash, or stop, the subpoena.”

“Get malpractice insurance” to protect yourself, Willick also urged. “A claims adjuster from your malpractice insurance company will often provide you with a swift and accurate answer to your legal questions, and may even provide you with an attorney at no cost to walk you through a legal problem you may be having.”

Common situations that could lead to a malpractice claim are boundary violations such as those involving sex, business relations, or social relations between therapist and patient.

Willich said, “Some of the warning signs of boundary violations are that [the psychiatrist] may not keep records of the patient’s treatment, is not billing the patient for services, or is exchanging gifts with the patient in a social context.”

However, psychiatrists should know that malpractice insurance doesn’t necessarily cover every legal problem, he emphasized. Some policies have exclusions for certain types of claims or limitations for coverage of those claims. This is typically the case with sexual relations between therapist and patient, he said.

A number of psychiatrists came to the session with legal dilemmas of their own.

One psychiatrist had been treating a patient in psychotherapy, and the patient bought the office space where the two met. “Should I terminate the therapy or move my practice?,” asked the psychiatrist.

“It’s your choice,” said Willick, but he acknowledged that it would be a bad idea for the therapy sessions to continue between the psychiatrist and his new landlord. “You are in a situation where the patient may want to start bartering rent for treatment, or the therapy sessions may spill over into the business relationship,” he said.

Another psychiatrist decided that a child she was treating needed psychopharmacological intervention. One parent approved of this type of treatment, and the other objected. “How do I proceed?,” she asked.

“You might want to find out if the child’s custody order mentions medical treatment,” Willick advised, noting that if both parents can’t reach an agreement, the parents’ divorce lawyers may be able to seek a resolution to the impasse. “It becomes more difficult if the child is in immediate need of treatment,” he acknowledged and urged the psychiatrist to consult an attorney expert in such matters.

Another psychiatrist was treating an adolescent patient whose parent demanded to see the psychiatrist’s records from the therapy sessions. “Do I need to disclose the records to the parent?,” she asked.

Willick acknowledged that state law would determine whether the parent had this right, and those laws vary considerably. He advised the psychiatrist to talk to her malpractice insurer about the law in her state.

“In general,” he pointed out, “the best way to stay out of trouble is to recognize the important issues and get legal help when you need it.” ▪