Telehealth: CONFIDENTIALITY IN CYBERPSYCH
THERAPIST-CLIENT CONFIDENTIALITY IN TELEHEALTH
By George J. Alexander, J.D., J.S.D.,
Sutro Professor of Law at Santa Clara University
December, 1999
As the century draws to a close, information flows more generously and privacy
withers. This is true of the general society but has even more ominous effects
in psychology. This note is an encapsulated version of a paper delivered at
the A.P.A. meeting in 1999. It surveys the present state of therepist-client
confidentiality in Telehealth and makes a few modest predictions about the
immediate future.
- Clients expect privacy beyond the ability of practitioners to provide it.
- Confidentiality is probably an important prerequisite to treatment.
- The United States Supreme Court has upheld its importance but
- The law forces reporting of child abuse and, in some states, elder abuse.
- Tarasoff requires warning an identified potential victim.
- The therapist may use client information involuntarily to commit.
- The therapist may use client information in legal self-defense.
- Insurance companies want client information related to payments.
- Managed care providers want even more information
The federal government, notably but not exclusively in HIPPA, has required
confidentiality but has made exceptions that are very broad
The Secretary of H.H.S. promulgated rules which allow overriding client
confidences in areas of national priorities. Four were identified:
- to combat waste and fraud
- to control infectious diseases
- to promote research
- to assist law enforcement
The latter two are frighteningly broad although present specific
interpretations are not.
Furthermore, a national register of all patients and clients is required and
the federal government is to be its guardian with client/patient control
sometimes limited to their being informed that their records have been provided
to others.
The historic notion of a client's real control of the release of medical
information seems substantially subordinated.
Perhaps Daniel Ellsberg's records could have gone to the Nixon
administration if there had been such a law then. The information that can be
subordinated to the national interests includes information which identifies
specific patients. On the other hand, state legislation dealing with cyberpsych
(Telehealth in psychology) is expressly more protective of privacy.
The California Telemedicine act expressly preserves patient confidences. It is a model for the new class of express cyberpsych legislation. Among other requirements of the Act is a requirement that records of telemedical sessions be maintained.
Other provisions of the act exclude telephone and electronic messages from the
act and require real time or near real time sessions. Those provisions, plus
obvious professional advantages, drive sessions toward interactive video.
Arguably, tapes of those sessions would constitute parts of the required
record.
We have no experience with the availability of verbatim session records.
Consider what a trial lawyer in a malpractice case might do with them.
Before the repressed memory cases, there was a dearth of malpractice litigation
growing out of talk therapy.
Such records might change that as forensic psychologists testify about missed
opportunities and damaging suggestions once they have studied the specific
conversations.
Professor Alexander teaches Law and Psychiatry and is coauthor of Law
and Mental Disorder and of numerous other books and articles. He was
Dean of the Law School for fifteen years, is a past President of the
Society of American Law Teachers and a frequent public lecturer. He
can be reached at Gjalexander@aya.yale.edu,
through Santa Clara University, http://scu.edu,
or at (408)554-4053.
For more information on this topic, subscribe to one or more
of
Dr. Maheu's free email discussion
services.
|
