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Confidentiality in the Age of HIPAA: A Challenge for Psychosomatic Medicine

Received May 7, 2007; revised July 9, 2007; accepted July 25, 2007. From the Dept. of Psychiatry, North Shore University Hospital, and the North Shore Long Island Jewish Health System, Mount Sinai School of Medicine. Send correspondence and reprint requests to Hindi Mermelstein, M.D., FAPM, Dept. of Psychiatry, North Shore University Hospital, North Shore LIJ Health System, Mount Sinai School of Medicine, 91 Bayview Ave., Great Neck, NY 11021. e-mail: hindi{at}att.net
© 2008 The Academy of Psychosomatic Medicine

ABSTRACT

TOP ABSTRACT INTRODUCTION REFERENCES

 
This review, a work project of The Standards and Ethics Committee of The Academy of Psychosomatic Medicine, examines the challenges posed for consultation–liaison psychiatrists as they struggle to maintain the trust between patient and physician while balancing compliance with the increasing complexities of confidentiality with the provision of enough information to our medical colleagues for good clinical care. The authors discuss the moral, legal, and ethical issues that arise from the many-layered state and federal regulations, especially the impact of the Health Information Portability and Accountability Act (HIPPA) and make recommendations for practical application in the clinical setting.

INTRODUCTION

TOP ABSTRACT INTRODUCTION REFERENCES

 
Trust between the patient and physician is the foundation upon which the therapeutic relationship is built. Confidentiality, with which the individual’s privacy is guarded, has been a tenet of the medical profession since Hippocrates:

"Whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad ... I will not divulge, as reckoning that all such should be kept secret. While I continue to keep this Oath inviolate, may it be granted to me to enjoy life and the practice of the art, respected by all men, in all times. But should I trespass and violate this Oath, may the reverse be my lot."¹

This pledge has been reaffirmed in the code of medical ethics formulated by the American Medical Association² and specialty organizations;³ it is referenced in common and state law; it is part of the standards for medical care;⁴ and it has now been codified in the Federal system under the privacy rules of the Health Information Portability and Accountability Act (HIPAA).⁵ Similar models integrating the moral, ethical, and legal basis for the protection of physical privacy, informational privacy, or even decisional privacy are basic components of medical ethics in many parts of the world.⁶

Privacy, Confidentiality, and HIPAA
The tradition of confidentiality is based on the belief that it is beneficial for patients to speak with their physicians without any hesitation so as to receive the best medical care and that it is beneficial to society for its citizens to have access to and avail themselves of such care. Autonomy, beneficence, non-malfeasance, and justice are the cardinal elements governing medical ethics. A physician’s maintenance of patient confidentiality is a hallmark of respect for the individual’s autonomy. A poll commissioned by the California HealthCare Foundation reported that although most Americans felt it was much harder to keep personal information private than it was in the past, they still had faith in their physicians to keep information confidential all or most of the time.⁷ However, what this means to the public may vary from person to person and may differ from what doctors think.⁸ When women were asked to define medical "confidentiality," the most common response was that the information, especially if potentially embarrassing, would be held closely between doctor and patient, as between personal friends, perhaps not even written, and shared little, if at all. When questioned further, many of these same women recognized that there would be a medical record and that the information might be discussed with other healthcare personnel.⁹ This seeming contrast to the "real-life" expectation of patients is possibly a reflection of just how precious, and therefore immutable, trust remains to the doctor–patient relationship.

Adolescent subjects observed several medical-visit vignettes incorporating varying degrees of confidentiality assurances. A teen’s willingness to seek medical care, to be forthcoming with the doctor, and to return for follow-up visits matched the closeness to unconditional confidentiality portrayed in each scenario presented.¹⁰ When physicians and medical students who scored high on rating scales for depression were asked why they did not seek care, approximately 35% cited their fear of disclosure, resulting in significant rates of untreated depression, with its attendant suicide risk, in a population already at considerable risk.^11,12

Medical settings such as emergency rooms, hospital wards, and surgical waiting rooms may have de-facto lessened expectations of privacy, where incidental disclosures are, to some extent, unavoidable and may not be preventable.^13,14 Although it is incumbent on the physician to make every effort to respect patients confidentiality, private space for gathering information is often limited by the physical setting (e.g., curtains in the emergency room or patient rooms with two beds); yet the psychiatrist must make every effort to assure the maximum privacy possible. Even when patients and physicians accept that disclosures are likely, it can have a negative impact on the doctor–patient relationship and the delivery of medical care. Of those who reported a privacy violation in the emergency room (hearing about others; believing their case was overheard; being physically exposed or seeing others exposed), 10% acknowledged changing or withholding information rather than risk a confidentiality breach.¹⁵ Even though individuals who were hospitalized in semiprivate rooms acknowledged the need for shared space, the relative lack of privacy through the curtain constrained what they told their physicians and hospital personnel.¹⁶ In the California HealthCare poll, approximately 15% of those surveyed recalled giving inaccurate or inadequate information or simply foregoing medical care because of their privacy concerns, thus raising the risk of less-than-optimal treatment and outcome.⁷

Nowhere in medicine is the need for confidentiality more evident than in psychiatry. We ask our patients not only to tell us about their symptoms but also to share with us their innermost thoughts and feelings. Also, the problems that drive individuals to seek mental health treatment may include drug abuse and overdose, psychosis, sexual abuse, violence, suicide attempts, family disputes, disorders of thinking, and other conditions most people find embarrassing and stigmatizing. These individuals are highly vulnerable and dependent on physicians to protect the very same "shameful secrets" that needed to be divulged in order for care to take place.

The uniquely sensitive nature of psychiatric communication has been recognized in society and the law. Many of the confidentiality standards have addenda specifically addressing mental health treatment. This extra layer of protection for psychiatric records is mirrored in our legal system, with state law becoming primary as enthusiasm for general doctor–patient privilege has waned.¹⁷ In recent years, the courts have extended and reaffirmed this stance, culminating in the United States Supreme Court’s 1996 landmark case in Jaffe v. Redmond. The decision was to not force the release of a psychotherapist’s notes. It assigned psychotherapy–client privilege absolute status, trumping the judiciary’s usual stance of truth-seeking above all. It was seen as a very strong expression of society’s appreciation of the value, special nature, and requirements of psychiatric treatment.¹⁸

Other changes relevant to medical privacy have taken place in medicine, as well. More doctors have formed group practices, and health care is increasingly being delivered using a team approach. Also, large healthcare databases have been developed to improve the efficiency and effectiveness of medical care, and advances in technology have heralded the electronic medical record as the wave of the future. These shifts have further loosened the bonds of the individual doctor–patient relationship. The traditional model of individual attention and consent regarding medical information has become less meaningful and less practical. In response to society’s concern about the corresponding growing threat to medical privacy, a systematized set of rules regarding individually-identified health information, HIPAA was enacted by the federal government.³

However, the right to privacy in medicine is not absolute. Indeed the very practice of medicine requires some crossing of both physical and information privacy boundaries. The right to privacy is a prima facie right. It is the standard of care to be met, in the absence of other compelling and competing considerations. Individuals can elect to forgo their right to privacy, to waive their testamentary privilege except if they are patient-litigants or for legally-defined conditions. The extent and exact nature of the exceptions is dependant on the locale.

Physicians and nurses can contact family members if necessary for the good of the patient. Psychiatrists can break confidentiality if a delay in treatment would increase the risk of harm to the patient or endanger a third party. Society requires reporting of specified circumstances such as communicable diseases, in spite of its impact on an individual’s right to privacy, in the interest of the welfare of its citizens.¹⁹ Other instances arise in medical practice when the physician uses professional judgment as to when it is in the best interest of the patient to disclose information; for example, whether or not to give information to the parents of a very mentally disabled, dependent 20-year-old man. It is important to recognize that HIPAA standards permit disclosure of medical information in the interest of caring for patients and protecting patients or the community unless one is specifically requested otherwise. Even then, certain emergency situations (e.g., suicidality) will permit disclosure against the patient’s will. Until some questions are more clearly answered, however, these decisions should be based on an assessment of the necessity for patient care, the likely effect of the communication, the benefit-versus-risk ratio, and the efficiency of any alternative methods that may exist. Because it is the individual’s privacy and expectation of confidentiality that is at stake, patients should be aware of anticipated disclosures and should participate in these decisions.^20,21 In this way, we can return some of the respect for autonomy and the related value of privacy to the doctor–patient relationship, which is where it belongs.

Confidentiality in Psychosomatic Medicine
The conflict between the need for completeness and the need for confidentiality is a challenge to all clinicians, and even more of a dilemma for psychiatric practitioners, and perhaps most problematic in consultative subspecialties such as psychosomatic medicine. In order to have collaborative relationships with other practitioners, there is an expectation and need for a bidirectional flow of information. The psychiatrist as a consultant is hired by the other physicians, not by the patient, thereby raising the question of to whom the information belongs. This double-duty dilemma may add to the patient’s reluctance to confide in the consultant, who is unfamiliar to him or her, thereby intensifying feelings of mistrust.²¹ If psychiatric consultation is initiated by the patient, he or she must be informed that the consultation results will be rendered to the requesting primary physician, and the information will be incorporated into the patient’s medical record.

Physicians in psychosomatic medicine work in medical settings where there are many persons with physical access to charts, and the number of persons with administrative rights to patient records is larger still.²³ Analogous to their office-based psychiatric counterparts, consultation–liaison psychiatrists gather personal information from and about patients, yet most of the findings are documented in the general hospital record. At present, the more stringent state mental health and federal substance abuse-related boundaries regarding confidentiality do not apply to charts in nonpsychiatric or addiction treatment facilities. Even so, society maintains a different standard of expected confidentiality of behavioral health records, which adds to the burden of trying to integrate behavioral health/psychiatric information into general medical records.²⁴ Most of the psychiatric consultations and follow-up visits occur in the emergency room or hospital setting, where patients are subject to the same problems as other hospitalized patients, with curtains and cubicles that ill-afford privacy. Add the crowding, the busy nurses’ stations, and the mix of visitors or other members of the staff who are commonly on the floor, and the risk of leaks abounds.^25,26 Still, we ask our patients to confide in us, and we are obligated to honor the confidence in us that they have characteristically shown.

The physician is also beset by an ever-increasing demand for documentation and access to patient records by auditing/reviewing agencies, third-party payers, and even the patients themselves. The privacy rules (HIPAA) were an attempt to create a single standard for confidentiality, with initially hoped-for increased privacy protection. The rules require that individuals are given a Notice of Privacy Practices (NPP), which includes information about the way identifiable health information is handled in the medical office or center, information about the disclosure process, including its requirements and exceptions, and information about the complaint process and the designated privacy officer. There are many required provisions in the notice, making it too long to read and perhaps too complicated to comprehend.²⁷ There is no requirement to discuss the notice, unlike the process with informed consent, which historically has governed the release of medical information. Furthermore, once the patient has received the NPP, the sharing of information for treatment, payment, or other broadly defined healthcare operations does not require further notice or consent. Under HIPAA rules, the individual has a right to refuse release, not a requirement to actively consent. HIPAA-mandated Minimum Necessary Guidelines require that any information disclosed be the least amount needed for the purpose at hand. But this does not apply to active treatment requests under the presumption that this limitation has already been incorporated in the initial inquiry. The added privacy protections for Psychotherapy Notes cover a very limited type of entry, and even these may be subpoenaed. It does not cover information that belongs in the main body of the chart, including diagnosis, medication, prognosis, and so forth, nor does it apply to psychiatric documentation in medical or general-hospital charts.^28,29 Ironically, the Jaffee record that served as the impetus for this "special attention" would not be protected under this provision.¹⁷ Thus, the advent of HIPAA may have lessened privacy protection while inducing so much confusion and anxiety about compliance that it has interrupted practice processes already in place.^30,31 There are many unanswered questions regarding the application of HIPAA rules in day-to-day medical practice. These will likely be delineated in retrospect, based on challenges or responses to the complaints filed for alleged inappropriate disclosure and disclosures beyond the Minimum Necessary Guidelines. In the meantime, we retain the opportunity and responsibility to use our clinical judgment as physicians practicing psychosomatic medicine.

Clinical Care
As physicians, our primary responsibility is to our patients. The Academy of Psychosomatic Medicine and The American Psychiatric Association have published guidelines for the evaluation of adults and for the psychiatric consultation to medically ill patients.^31–34 The basic elements include history from the patient and collateral sources; mental status examination, with appropriate laboratory tests and consultations; assessment of character style and level of functioning; and investigation into comorbid conditions (including medications), with the goal of arriving at a diagnosis and initiating a treatment plan in collaboration with the referring physician or clinical service.

In order to arrive at the most accurate diagnosis, it is important to ask all the questions and collect all the data. However, because of the sensitive character of psychiatric communication, accentuated by the susceptibility of the chart to wide exposure, what is recorded should be limited to the clinical problem at hand. Ethically, for the benefit of the patient, anything that is related directly or indirectly to the problem should be documented, even with the risk of disclosure. In HIPAA terms, what is documented should follow minimum guideline standards or, as noted in an article titled, "Paranoid Record-Keeping," as if the record were being read aloud in court.³⁵

"Ms. R," age 45, hospitalized with pyelonephritis, complained of difficulty falling asleep. Upon psychiatric evaluation, she revealed that her uncle had molested her when she was 10 years old. The consultant wrote that Ms. R had undergone significant trauma in childhood, which may have exacerbated feelings of anxiety in unfamiliar settings, but omitted any specifics because they would not alter the acute treatment of her situational insomnia but could cause Ms. R embarrassment if released.

In contrast, "Ms. N," age 25, admitted with a complex urinary tract infection, also complained of trouble sleeping. She sheepishly spoke of "sexual experimentation" while in graduate school. In this case, the consultant included the recent history of multiple sexual partners, even though disclosure might cause Ms. N humiliation, because, in his judgment, it could potentially have significant impact on diagnostic considerations. The same restricted writing should be considered in outpatient charts because they, too, are subject to release.^36–39

Even psychotherapy notes may be subject to release on the basis of some state laws, thus losing the slim safeguards afforded under HIPAA. "Mr. C," age 30, in outpatient treatment for a mood disorder after his mother’s death, reported "bloody dreams" to his therapist. The medical record for this visit could and should include a general statement of his feelings and functioning, his mental status, especially risk for harm to self or others, and history of same, but not the elaboration of his fantasies and their psychodynamic underpinnings. Waivers that allow state law to supercede the federal privacy rules are one of many types of post-hoc decisions regarding the conflict between local and federal privacy and disclosure regulations. Some centers have begun to encourage the use of a standardized evaluation form to capture what is required, and little more. Professionally, the need to become almost reductionistic in our written records and not document the holistic narrative of an individual is a difficult transition to make. But, as what was once thought to be secure and held private is being made more and more public, it is a change worth considering.

In terms of diagnosis, a similar approach is worth contemplating. The exploration of an individual’s character style in the face of a medical illness is invaluable. It allows us to more fully appreciate the person and to formulate a comprehensive treatment plan. However, in contrast to pre-HIPAA guidelines, consultation psychiatrists should describe the problem and limit the diagnostic labeling in the written record. In the article, "Clinical Experience with the Management of Schizophrenia in the General Hospital," Freudenreich and Stern write "the word ‘schizophrenia’ evokes fear in the heart of staff members. Expect that the patient with schizophrenia is perceived as irrational, oppositional, and lazy. It is twice as difficult for the psychiatric patient to appear half as normal."⁴⁰ A local Institutional Review Board demanded an independent assessment of capacity for every patient prescribed antidepressant medication by a psychiatrist before consenting for enrollment in a naturalistic research study, while not requiring such capacity examinations for the same patient population whose medication was prescribed by an internist. When the words "substance abuse" appear on a chart, it leads to both delegitimizing pain complaints and rumors about the patient. Likewise, HIV status has additional protection under state and federal law, as it is universally recognized how often it serves as the topic of speculation.

Our experience in the field of mental disorders, with the stigma that occurs, tells us that other diagnoses, especially in the personality-disorder spectrum, can evoke related "gossip-like" reactions. We are careful not to record our hypotheses about the transference or dynamic reactions that may be contributing to the problems. So, too, should we protect our patients by restricting our diagnostic labeling of personality disorders. A better approach may be to identify and describe the predominant symptoms and symptom clusters much as we do with comorbid medical conditions that have an impact on patients, have an impact on the disease states, are not in the patient’s control, and are the focus of therapeutic recommendations. In the same way, there is no need to list or expound on personal history of trauma, abuse, etc., unless it needs to be directly addressed at the time. Clinical judgment should apply as to which elements of the past or past treatment to include in written records.

"Mr. W," a 63-year-old man with severe chronic obstructive pulmonary disease, was referred to Psychiatry for difficulty weaning from the ventilator. The psychiatrist felt that the patient was fearful, anxiously anticipating being unable to breathe without mechanical assistance. His teenage history of an arrest for vandalism was not relevant and hence not part of the "here-and-now"–focused consultation report.

The psychosomatic medicine consultation follows a crisis model that focuses on safety, symptom relief, ability to comply with medical care with the goal of stabilization, and the return to ongoing chronic care. When discussing cases with the referring physicians, other consultants, and other medical or hospital personnel, it is important for the consultation–liaison psychiatrist to consider the setting and the risk of incidental disclosure. There may be alternative places to talk where the likelihood of being heard is decreased. For instance, "Mr. D" was brought to the emergency room after a motor vehicle accident. Once it was determined that there was no evidence of cognitive impairment, substance use or abuse, suicidal or parasuicidal activity, or other significant psychiatric factors contributing to the accident, the physician suggested that Mr. D, who described himself as being "a bit wild" in the past, hold off on providing further details until he was moved from the emergency room corridor. Technological advances in communication, such as e-mail and even fax transmissions, require attention to security issues that need to be taken into account.^41–43

HIPAA sets the floor and not the ceiling on privacy rights. It deals with authorization for release but does not prevent the physician from requesting consent.⁴⁴ If there is a conflict between HIPAA and state law, generally, the more stringent rule applies. In some centers, information sheets were added to the general-consent forms, which affords an opportunity to discuss the limits of confidentiality with patients. When appropriate, the psychiatrist should discuss the relevant issues with the individual and request additional consent forms before releasing records. However, because the psychiatric consultant notes are part of the general-medical record and do not require a separate request or even a notice of release, this would not be feasible in the consultation–liaison setting, thus making it even more important that we use our discretion and narrowly limit our documentation to only what is necessary for patient care while maintaining our approach to the broadest possible understanding of our patients. This is what we should model to our trainees. Their professional world will always be filled with these new tensions and those that expand as technological advances continue. We need to aggressively monitor new developments and assess their potential impact for jeopardizing the psychiatric care we give. It is our role as psychiatrists and supervisors to help the trainees learn how to negotiate this gauntlet of challenges to the privacy and confidentiality ethos that is crucial to our field. In this way, we can continue to fulfill our obligations to care for our patients, to do no harm, and to keep precious and safe the stories and secrets they have entrusted to us.

ACKNOWLEDGMENTS

 
The authors specifically acknowledge Dr. Maurice Steinberg for his support of this project and thank the members of the Committee for their guidance and assistance.

This paper and project were conceived and completed with the support of the Academy of Psychosomatic Medicine Committee on Standards and Ethics.

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Abstract Full Text (PDF) Alert me when this article is cited Alert me if a correction is posted Citation Map Email this article to a Colleague Similar articles in this journal Similar articles in PubMed Alert me to new issues of the journal Add to My Articles & Searches Download to citation manager Citing Articles via Google Scholar Articles by Mermelstein, H. T. Articles by Wallack, J. J. Search for Related Content PubMed Citation Articles by Mermelstein, H. T. Articles by Wallack, J. J. Confidentiality

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