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Confidentiality in Mental Health Treatment

The Harvard Medical School Mental Health Letter, February 1988

Patients routinely confide potentially embarrassing or distressing information to therapists. When are therapists obliged to keep it secret, and when must they tell others? We asked Thomas G. Gutheil, MD, co-director of the Program in Psychiatry and Law at the Massachusetts Mental Health Center and Associate Professor of Psychiatry at the Harvard Medical School.

Confidentiality is the clinician's obligation not to divulge information to third parties without the patient's permission. (It is distinct from privilege, the right of the patient to prohibit testimony in court about information shared with professionals.) Confidentiality has clinical, ethical, and legal dimensions. Clinically, no patient can be expected to convey the information needed to conduct psychiatric evaluation and treatment without assurances that it will be kept confidential. From an ethical point of view, the right to privacy demands respect for patients' confidences. Legally, breach of confidentiality is a deviation from the standard of care imposed on all clinicians; it is the third most common basis for lawsuits recorded by the American Psychiatric Association's Malpractice Insurance Trust.

Circle of Confidentiality

The 'circle of confidentiality' within which information about a patient may properly be shared without permission includes supervisors who are in the chain of clinical responsibility, as well as nurses, aides, social workers, and other members of the treatment team from whom secrets should rarely be kept. Certain consultants (for example, a gynecological consultant for a hospitalized psychiatric patient) are also inside the circle, assuming that the patient has given permission for the consultation.

To transmit information outside the circle a release from the patient -- preferably written but in certain circumstances oral -- is normally required. (If the patient is incompetent, a guardian or other substitute must consent to the release). The patient's family and attorney are outside the circle. So are previous therapists and the outside therapist of a hospitalized patient. Of course, it is almost always better to share all information with this therapist; the clinician should make a patient's refusal to do so a major issue in treatment. Minors have no separate right to confidentiality, but the clinician may want to make it part of the agreement before undertaking therapy, especially with adolescents.

The police are also outside the circle; a psychiatric hospital or other mental health institution may not give them information without the patient's permission. An appropriate response to police requests is of the following type: "We cannot tell you whether Mr. X is a patient here, but we can make inquiries, and if there is someone here by that name, we will encourage him to get in touch with you to discuss the matter."

All clinicians should be aware of some exceptions to the rule of confidentiality. Reporting to state agencies is often mandatory for communicable diseases and child abuse. Confidentiality can be breached in certain emergencies, including (in many but not all states) involuntary commitment to a mental hospital. In some jurisdictions confidentiality must be breached to protect a third party endangered by the patient. Information can be transmitted to satisfy insurance requirements when the patient has implicitly agreed to this as part of the insurance contract. A judicial order may also require a breach of confidentiality.

Patients Can Inform

Clinicians too often fail to make good use of the fact that patients can legally tell anyone anything about themselves. Whenever the requirements of confidentiality are unclear, I recommend that the patient do the informing. For example, the patient may be the best person to pass on information to outside clinicians or warn third parties of danger.

In any case, patients should be allowed to read or hear every communication about themselves that leaves the circle of confidentiality. This strengthens the therapeutic alliance by showing the clinician's respect for the patient, and also provides a useful opportunity for discussion and dialogue.

President and Fellows of Harvard College, 1988
Reprinted with permission.

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