Regretfully, some therapists are not always clear with their patients. Some may merely not have a clue as to what standards and laws govern the protection of information that a patient shares with a therapist. Others fear that if you truly knew all the possible ways and reasons the information you share with a therapist can get into the hands of others you would not share anything. So they neglect to tell you or gloss over it in the hope that you won’t ask too many questions. Perhaps you will be reluctant to share some things. But whose choice is it to decide? I think it should be yours based on the facts. So make sure you clarify the issues of privacy and confidentiality with your therapist before you go too deeply into sensitive information.
SO WHAT IS CONFIDENTIAL ANYWAY?
Here are some facts:
If you choose a psychotherapist who is a provider on the panel of your insurance company, the first pieces of information that will be requested from the therapist are identifying information –– your social security number or that of the family member who is the main subscriber –– along with your diagnosis or diagnostic code and the dates on which you came for treatment.
At some point in the process an outpatient treatment report (an OTR) will probably be required. Your therapist will send the insurance company some or all of the following information: medication prescription and monitoring (if applicable), counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.
The insurance company might decide to audit your therapist for a “Quality of Care Review”. This means that another licensed clinician employed by the company can review your entire record. The purpose of these reviews is so your insurance company can assure itself that your therapist is meeting its standards of practice.
But this means that others besides your own therapist will have access to your records. And remember, both you and your therapist agreed to all of this –– you when you joined the managed care plan and your therapist when he/she signed on to become one of its providers. You each signed something that gives the company permission to view whatever records it chooses.
SO AM I SAFE NOW?
“Well,” you opine –– “I can breathe a sigh of relief. MY therapist does not accept third party insurance and I pay his/her fee out of my pocket; I haven’t threatened anyone and I haven’t abused my kids or my spouse. So, that must mean what I reveal to him/her is safe –– both private and confidential. Right? Isn’t it?” Can I breathe? "
Unfortunately, you can’t. Not yet. There are other ways that some or others can legally view all of the information you gave to your therapist.
Suppose you have an accident on your job or in a car or someplace else. If it’s serious enough, you’ll probably be applying for disability payments or suing for damages (doesn’t everyone?). In such an instance, it’s almost guaranteed that somewhere along the line you’ll be asked for a list of your health providers, past or present. Legally speaking, you’ll be obliged to supply such a list. This will include any psychotherapy treatment. There’s a possibility you’ll be asked to sign authorizations to allow the opposing attorneys or the disability insurance people to look at your records. Why would they want this information? What might they do with it?
They will be diligently searching for ANYTHING that might show that your current state is a “pre-existing condition”. Discover of such a state might help them turn down your claim or fight your lawsuit. They may then try to prove they are less liable or that your condition may be psychosomatic. Often this is a “fishing expedition,” but if you don’t agree or if your lawyer does not successfully object this can get in the way of your case. You can refuse to sign such an authorization but it may delay the processing of your claim or litigation. In such situations, ALWAYS seek out legal advice.
If you are truly interested in all the ins and outs of confidentiality, you may want to take a look at my article on the subject. It touches on subjects such as: what is a record; privileged communication; subpoenas court orders and the infamous psychotherapy notes that some therapists do not want you to see. It’s long and technical but it could be an eye opener for the therapist and the consumer. See http://www.ric.edu/jriolo/confidentiality.htm You then can use the book marked links to go to the specific sections that interest you
I’M GETTING NERVOUS. IS THERE ANYTHING ELSE?
There are any number of OTHER situations where medical or mental health records can be subpoenaed. If you are involved in a custody dispute as part of a divorce, or if you are a victim of a sexual assault, your mental health records may be sought. There are other possibilities, too.
Obtaining a subpoena is a relatively simply for an attorney. Now, before your records are handed over, your therapist, working together with your attorney, MIGHT try to get the subpoena quashed by a judge. There is no guarantee of this, of course. And in cases involving custody, family violence or criminal proceedings, it can go either way. If the judge rules that your therapist must produce your records, he/she has little choice unless she is willing to go to jail for contempt of court.
Also, now much of your medical history including mental health history is electronically stored and transferred. To find out more about some of the potential of others to have access to your mental health information, read Are Your Secrets Safe With Us? by Michael Freeny, a therapist and privacy expert. You will need Adobe Reader to view this document. If you don't have it, you can get a free download from Adobe.
All this is not to make you paranoid. However, knowledge is power. Know what your therapist has written about you in his/her records sooner rather than later.