Under HIPAA, there is a difference between regular Personal Health Information and “psychotherapy notes.” Here is HIPAA’s definition of psychotherapy notes:
Psychotherapy notes means notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual’s medical record. Psychotherapy notes excludes medication prescription and monitoring, 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.
Here is the HIPAA citation regarding disclosure of this information:
§ 164.508 Uses and disclosures for which an authorization is required.
(a) Standard: authorizations for uses and disclosures.
(1) Authorization required: general rule. Except as otherwise permitted or required by this subchapter, a covered entity may not use or disclose protected health information without an authorization that is valid under this section. When a covered entity obtains or receives a valid authorization for its use or disclosure of protected health information, such use or disclosure must be consistent with such authorization.
(2) Authorization required: psychotherapy notes. Notwithstanding any other provision of this subpart, other than transition provisions provided for in § 164.532, a covered entity must obtain an authorization for any use or disclosure of psychotherapy notes, except:
(i) To carry out the following treatment, payment, or health care operations, consistent with consent requirements in § 164.506:
(A) Use by originator of the psychotherapy notes for treatment;
(B) Use or disclosure by the covered entity in training programs in which students, trainees, or practitioners in mental health learn under supervision to practice or improve their skills in group, joint, family, or individual counseling; or
(C) Use or disclosure by the covered entity to defend a legal action or other proceeding brought by the individual; and
(ii) A use or disclosure that is required by § 164.502(a)(2)(ii) or permitted by § 164.512(a); § 164.512(d) with respect to the oversight of the originator of the psychotherapy notes; § 164.512(g)(1); or § 164.512(j)(1)(i).
When you track down the various citations, the end result is that the only time a provider can disclose psychotherapy notes — things you have talked about with your doctor, case manager, etc. — without your express authorization is in cases where the information can be used by an authority to prevent imminent and serious harm of a person or persons, and the need for the information is immediate. The legal definition of “serious”, as in “serious harm”, is harm that could result in death. So basically a behavioral health professional can only divulge information received from a patient in treatment is no save someone’s life.
Addtionally, in 1996 the Supreme Court ruled that psychotherapy notes were not discoverable with a Court order. That case was Jaffee v. Redmond, 518 U.S. 1. You can read all about that landmark decision here.
Here’s how these guidelines may play out in practice:
- If the provider informs the police that a client has revealed that he/she is an abuse during treatment, the treatment of that client effectively stops. The treatment would likely have made a difference in the client’s abusive behavior and could have stopped it altogether. The likelihod of a client who has been turned into the police going back to therapy and getting effective treatment is very small. If enough clients with abusive behaviors are turned in to the authorities instead of being treated for their probem, then soon we would have a society where hardly any person with abuse issues will be gertting necessary behavioral health treatment. The result of that will be a rise in incidences of child abuse.
- If a provder tells their clients that they will report incidences of abuse to the authorities, as the clinic that gave you the client rights flyer does, they are assuring that the clients know that the provider has priorities that override his or her best interests. This has a negative effect on the client/therapist relationship and inhibits successful treatment.
- Informing clients that their provider will report him/her to the police also ensures that if any of the clients do have issues that result in abusive behavior they will lie about or not divulge their problem, making successful treatment almost impossible.
- The only way a behavioral health provider can treat a client is if the client honestly discloses his or her thoughts, feelings, and actions. There are no MRI’s to turn to if the client feels that he/she must lie to their provider.
- It’s wrong to ask a client to confide in you in order to be treated and then turn around and provide the client’s statements to a 3rd party to be used against the client. This should go against the principles of any ethical provider.
The practice of reporting a client to the police if they disclose abuse issues or other criminal behavior is one of the most serious and widespread rights violations we as consumers face today. The reason this practice has been allowed to continue is that the population of individuals who are mentally ill and who have confided in their provider that they have behaviors which may be criminal in nature are very unlikely to file complaints because the complaint process usually involves further disclosure of their private statements.
This article was written by Katy Welty, Consumer Advocate (firstname.lastname@example.org), and it only reflects her views. It is not legal or professional advice.