Psychiatric News-From the President images/pnmasthead.gif From the President

Privacy Under Fire

Harold Eist, M.D.
APA President

Psychiatrists know, better than any other medical specialists, the importance of confidentiality in patient treatment. Confidentiality is the sine qua non of the doctor-patient relationship. In 35 years of medical practice and 30 years of organizational activity, I have found that the single most important concern of our patients of all ages, even before consideration of the competency of their doctors, is the trustworthiness of the doctor-patient relationship. Children have said to me, "You can't tell anyone what I tell you, can you?"

Any erosion of the doctor-patient relationship diminishes our effectiveness and our standing as professionals. We have ethical, moral, and legal obligations to do everything in our power to assure that these erosions do not take place. Our nation's Constitution and all reasoned concepts of human rights assume and assert the imperative of privacy. Rights demand responsible behavior; those that breach them must be held accountable.

The privilege of our patients has regularly been compared with the privilege between church members and their clergy and between clients and their lawyers. Recently, in Oregon, an overzealous district attorney, Doug Harcleroad, trampling on the sanctity of the priest-penitent relationship, arranged for a confessional to be bugged. He showed no consideration for the wider social implications of his egregiously improper behavior, deep insensitivity, and profound disregard for common law. Doctors and lawyers are sued when they breach confidentiality, and they pay heavy penalties. Knowing of the importance of this privilege, on the basis of our Constitution and our law, if not that of ethics and morality, he clearly should have known better. His failure raises serious questions regarding his competency to practice the law and be entrusted with the legal authority of the state.

John Cardinal O'Connor called for the destruction of the tape, and I support him fully in this. As he put it, "This is not simply a ‘Catholic issue.' The privacy of privileged communication between an individual of any religious persuasion and his or her clergy must be respected at all costs."

This is true also of confidentiality in the doctor-patient relationship, which has been undermined in the Bennett Bill (the Medical Records Privacy Protection Act of 1995), which allows patient-identified confidential information to be released to third parties, including researchers, insurers, and police without patient knowledge or consent or without the knowledge of the doctor. Removing us from the information-transmission loop prevents us from advising our patients of attempts made to invade their privacy and from addressing these from the point of view of the consequences of disclosure.

Unfortunately, legal personnel in our armed services also want to run roughshod over patient confidentiality. Recently an Air Force judge advocate demanded the psychiatric records of a victim of a crime. Her only crime: she was an active duty serviceman's family member who was seen by a psychiatrist at an Air Force mental health clinic. The treating psychiatrist and the family objected most strenuously to releasing the records. In fact, the mother of the child, in justifiable rage, tore up the records rather than surrender them.

As the rights of individuals have been increasingly marginalized in our society, our basic values of social justice, fairness, and equity have been eroded. This has been so much the case that even decent people, mesmerized by their own bottom line, which is some form of personal gain, have knowingly violated confidentiality.

I am pleased to report, however, that the U.S. Supreme Court gave the psychotherapist-patient privilege the backing it deserves in its decision last month in the case Jaffee v. Redmond, et al. (see page 1). In late 1995 APA submitted an amicus curiae brief in this case supporting federal court recognition of a broad psychotherapist-patient privilege for all licensed mental health care professionals. Such privilege is protected to some degree in all 50 states, but few people realized that no such privilege existed at the federal level.

In a 7-2 decision, the Supreme Court recognized the patient-therapist privilege on the federal level, saying that, "Effective psychotherapy depends upon an atmosphere of confidence and trust, and therefore the mere possibility of disclosure of confidential communications may impede development of the relationship necessary for successful treatment." The Court also noted that the privilege serves the public interest as well, since "the mental health of the nation's citizenry, no less than its physical health, is a public good of transcendent importance."

As the moral leaders of American medicine, APA has been working diligently to have the Bennett Bill modified. The "information industry" sees the medical record as a gold mine and is pushing hard to have the Bennett Bill passed as is. We, in contrast, see protecting confidentiality as necessary for the preservation of the sanctity of the doctor-patient relationship.

We must pledge ourselves to speak out against any breaches of privacy and confidentiality wherever they occur, because an attack on privacy in one area is an attack on privacy in every area.

(Psychiatric News, July 5, 1996)

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