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Necessary Secrets Privacy, Confidentiality, and Privilege in Mental Health Services. Gerald P. Koocher, Ph.D., ABPP. Values underlying Confidentiality. Stigma Trust Privacy Autonomy. Stigma. Public fear and superstition Stereotypes associated with violence and dangerousness

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necessary secrets privacy confidentiality and privilege in mental health services

Necessary SecretsPrivacy, Confidentiality, and Privilege in Mental Health Services

Gerald P. Koocher, Ph.D., ABPP

values underlying confidentiality

Values underlying Confidentiality

Stigma

Trust

Privacy

Autonomy

stigma
Stigma
  • Public fear and superstition
  • Stereotypes associated with violence and dangerousness
  • Discrimination against mentally ill is prohibited under the ADA of 1990 (PL101-336)and Fair Housing Amendments Act of 1988 (PL100-430), but still…
trust
Trust
  • Fundamental to the therapeutic alliance
  • “Effective psychotherapy…depends upon an atmosphere of confidence and trust in which the patient is willing to make frank and complete disclosure…”

(Jaffe v. Redmond, 1996)

privacy
Privacy
  • Court decisions in regard to procreation, death, and dying, and mental health illustrate the significant societal concern for privacy
autonomy
Autonomy
  • Competent individuals’ right to self-determination, including the decision to seek, select, or forgo health care
typical exceptions to confidentiality
Patient consent

Other treatment providers

Reimbursement

Disclosure to patient

Disclosures to families

Quality control and program evaluation

Research

Public health reporting

Protection of third parties

Disclosures to law enforcement

Disclosure in court proceedings

Typical Exceptions to Confidentiality
definitions
Definitions
  • Privacy
  • Confidentiality
  • Privilege
    • Prevents disclosure in legal proceedings
    • Established by common law, refined by statute and case law
      • Jaffee v. Redmond et al. U.S. Sup. Ct. [June 13, 1996]
mandated reporting
Mandated Reporting

Child abuse/neglect:

  • Reasonable cause to believe or reasonable suspicion
  • Sexual abuse may require additional actions

Abuse/neglect of dependent persons:

  • Elderly
    • May include financial abuse
  • Disabled
    • May allow more discretion
  • Dangerous driver
discretional breaches
Discretional Breaches
  • Lawsuits (seek release)
  • Ethics complaints (seek release)
  • Within institution
    • Treating colleagues
    • Supervision
    • Utilization review
    • Quality assurance
duties to third parties
Duties to Third Parties
  • Obligations to payers
    • Contractual versus non-contractual
      • Patient’s contract
      • Non-subscriber parties
      • Provider’s contract
  • Targets of violence
    • Tarasoff and progeny
        • Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 551 P. 2d 334, 131 Cal. Rptr. 14. (1976)
      • Risk assessment
      • Identified target
      • Protective steps
duties to third parties1
Duties to Third Parties
  • Family members
    • Child exceptions
  • Following client’s death
    • Privilege can survive death

Swidler & Berlin and James Hamilton v. United States U.S. 97-1192

    • Client’s executor is “in charge”
      • Anne Sexton/Martin Orne
multiple client therapies
Multiple Client Therapies
  • Groups
    • No privilege held in relationship to other group members
  • Couples
    • What is the couple’s contract?
  • Families
    • What is the contract?
    • What will parents allow?
    • What about break-ups?
confidentiality and minors
Confidentiality and Minors
  • What secrets will parents allow their children?
  • Contract at outset; but minds can change
  • Long-term issues
    • When grown children access their own childhood records
subpoenas and court orders
Subpoenas and Court Orders
  • What is a subpoena?
  • What is a court order?
  • A subpoena compels a response.
  • Only a court order can compel a disclosure.