Once you know what’s in your treatment record you can choose to give permission for others to read it. This can include other therapists if you transfer your care, or your attorney. Technically, it can be anyone you choose. It’s not a good idea to give that permission too freely and your therapist might advise you not to share your personal information with too many people or some individuals in particular. Seriously consider the therapist’s advice. However, the ultimate decision is up to you- not your therapist.
There could be a number of situations where someone will ask your permission to examine your record. Technically, you have the right to decline. Realistically, there are an increasing number of situations where it seems like you have been “made an offer you can’t refuse”.
For example, if you applied for job with a security clearance, life insurance, or disability insurance you may be asked to list all your health care providers including mental health. You can refuse but a refusal may impede or derail your obtaining the benefit you seek. Therefore, it may not seem like much of a choice.
In addition, others may examine your records without your permission. Attorneys can subpoena your record in situations where someone is alleging that your mental condition is a relevant factor. It could be a divorce proceeding or a custody battle or you may be suing someone for damages and the defense is claiming your mental state was a significant contributing factor. All the more reason for you to know what in that record that could help or hurt.
When your records are subpoenaed and you do not consent, your therapist has an obligation to assist you and your attorney to fight the release. They should resist, through legal means, and they should try to get the subpoena squashed. However, in that situation, it will go before a judge and the judge will agree to either squash the subpoena or issue a court order for your therapist to comply. Once a judge issues a court order, your therapist has few options but to release the record or face contempt of court, which is not a very pleasant prospect.
Now some therapists have done that and have gone to jail. I know several therapists that proclaim loudly that they would also. However, most when read the riot act by a judge will fold like any decent poker player with a pair of deuces. Judges tend not to bluff.
I have never made any such promises to any patient. I will do as much as I can but I can be of little help to them or anyone else behind bars. That is where I draw the line.
In the electronic and computer age there are many intrusions on your privacy and your mental heath record is unfortunately not immune for these intrusions. As stated earlier if you use insurance you gave permission to your therapist to submit some information about you to your insurance company. Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) your insurance company may actually sell some of this information to third parties. In March we will have a guest on the Labyrinth, Michael Freeny, who will discuss the many incursions to privacy in the technological age.
Questions to ponder:
You and your spouse see a therapist for marriage counseling. It does not work and you are in the middle of a messy divorce and custody battle over the children. Your spouse says,” Ha! If I could get my hands on the records of our joint marital counseling sessions it would show you are a “slob” and how unstable you are.” She was a patient too and has every right to see the record as you do. Where do you stand in keeping that out of the divorce proceedings?
You teenager has been seeing a therapist for sometime. You are not happy with the results. As the legal guardian can you see your child’s record? After all you are the one who is responsible for making informed decisions for the minor. How can you make such decisions without adequate information? The therapist is refusing to tell you much on the grounds of confidentiality. What are your rights as a parent?
Turn the questions around. You are the teenager or you are the spouse who does not want the records involved.
We will discuss these thorny questions and more in the next article.
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