I will also afford them the same courtesy that they afford their patients. I will not use their names and will disguise their identities somewhat in the same manner they claim to disguise their patients when they talk about them on discussion groups and listservs. The difference being that I am under no obligation to maintain their privacy whereas they have an obligation to maintain the privacy of their patients. My not using their names is simply a matter of courtesy and not because of any professional, ethical or legal requirement. It is important to give some information about them to indicate that they are not neophytes or people whose views are not worth considering, Each of their comments should be considered and weighed along side the comments of the experts who were willing to state their views publicly in the Confidentiality Series. To date the comments fall into three categories:
This Is Nothing New
One comment challenges our premise that it is a concern at all. They ask, “Are you also interested in presentations of case materials in "non-encrypted" books or journals and in public lectures/conferences? If not, do you think there should be a different standard for such discussions on the Internet than in these other media? And if so, why? I am assuming that such presentations have a reasonable level of disguise” They report that they include a paragraph in their HIPAA Notice of Privacy Practices that informs clients about my participation in various sorts of prfossions that employ case material. This they believe meets any informed consent requirements. There is also an implied assumption that there is no difference between online case discussions and books or journals and in public lectures/conferences where patients are discussed.
You the reader will have to answer that question after reading the responses of Reamer, Groshong, Seidel and come to your own conclusions.
Then, there is the question of whether my colleague’s consent in actually informed. Does the phrase various sorts of professional dialogues sufficiently explain that some of these dialogues may be on the Internet where case material may go out in written form to hundred of people many of whom are totally unknown to the therapist? This commentator disagrees with Groshong when she says, I doubt any client would say yes to the question, “Can I use your material for supervision purposes an online discussion on a non-secure website without knowing who will be reading it or where it might be sent, even if I disguise details of your life?” This speaks to the question of what does informed mean in the phrase informed consent?
In fairness to our commentator while I chose not to name the individual, he/she is a well-respected psychoanalytic mental health practitioner and a list owner or moderator for more than one listserv. His or her credits include extensive writings on mental health issues, psychoanalytic theory and biographies on some of the great historical figures in psychoanalysis. He or she is a respected name.
The Poor Don't Care
Another comment came from a therapist who works with a large number of minority and poor families at a fair sized social agency. According to this expert on minority families poor people talk about their problems to each other all the time and would not seem to care if we discuss them online.
So the argument here is the poor don’t care. Whether or not they talk about their problems among themselves the question is do we have the right to talk about them among ourselves without their informed consent? Another question arises, since my colleague also works for a rather large social agency and is not a private practitioner. In an agency the CEO and the board of directors often have a fiduciary responsibility to consumer/clients that receive services. This could be true whether or not the practitioner has an independent license. So in such cases should permission to discuss cases also be obtained form the agency officials? As they may also face liability if it turns out the clients care after all.
We Don't Have To Be HIPAA Compliant
My last comment comes from a long time colleague and friend whom I have known and respected for some time. She or he (remember I am trying to disguise their identity) states that he/she has had some positive perspectives on it in some cases, but wouldn’t make an outright endorsement. He/she has already used listservs to get feedback on a case or two, but agreed that there are a lot of caveats that must be observed.
On the plus side it is helpful to hear what other professionals have to say, and also have some of the anonymity and privacy which wouldn’t be experience in a face-to-face consultation. But protecting the confidentiality of the client is so important. He/she believes that it's in violation of HIPAA, although this person reports that they do not need to be HIPAA compliant since the/she is not an covered entity under HIPAA.
The above comments raise a number of important points. Is the discussion of cases where any patient identified material is discussed in open or semi-open electronic forums a violation of HIPAA regulations? Who are covered entities that must comply with HIPAA regulations? Even if one is not a covered entity according to HIPAA regulations, are there other laws and professional standards what would apply? Perhaps most importantly can any assurances of true anonymity be afforded to either the therapist or their patient in such forums? One might need to consider that Yahooand MSN Groups, which were never designed for confidential communications and list owners and moderators, can and have made mistakes and revealed the identity of the actual clinician.
Hopefully as therapists come forward from both sides on the record answers to the questions will be forthcoming.