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Privacy in Mental Health Interactions

Confidentiality and Privacy
The Hippocratic Oath states, “Whatever in connection with my professional practice, or not in connection with it, I see or hear in the life of men, which ought not tobe spoken of abroad, I will not divulge, as reckoning that all such should be kept secret.”

Likewise, the American Hospital Association’s Patient Bill of Rights (1992) states, “The patient has a right to expect that all communications and records pertaining to his/her care would be treated as confidential by the hospital, except in cases such as suspected abuse and public health hazard when reporting is permitted or required by law” (Weissburg, 1995, p. 43).

Confidentiality has been described as a “hallmark of the therapeutic relationship, a sine qua non for successful therapy, and the cornerstone of therapeutic trust” (Parsi, Winslade and Coracoran, 1995, p.78). According to Winslade and Ross, privacy is focused upon the self, whereas confidentiality is concerned with information that was once private (as cited in Parsi, Winslade and Corcoran, 1995).

Winslade and Bell-Smith note that confidentiality requires three elements within a therapeutic relationship (as cited in Parsi, Winslade and Corcoran, 1995). First, there must be private information; second, there must be disclosure from the client to the therapist, and third, there is an expectation of non-disclosure to third (Parsi et al., 1995).
The Latin root of the word, privatus, translates as “belonging to one’s self”. While it is considered to be psychologically healthy to share certain bits of privileged information about oneself with others, such sharing of information invariably leads to a power differential between parties.

Information is power and, as such, self-disclosure carries with it the risk that information revealed will be used by the confidant in a manner that is harmful to the disclosing party.  In ordinary intimate exchanges, however, such risks are mitigated by the phenomenon of mutual self-disclosure (Curtin, 1994).  The revelation of information within the realm of a professional relationship is based upon the understanding that such disclosure will be used to benefit the disclosee.  The client must, therefore, believe that the information will be needed for provision of care; be used to benefit the client; will not be used for any other purpose than care without the client’s express permission (Curtin, 1994).

Privacy is further defined as freedom from the unwanted intrusions of others, including the (physical) presence of unwanted persons, particularly when one is engaged in an intensely personal activity, such as the psychotherapuetic process; freedom from unwanted observations of or by other persons; protection from the dispersion of private information about persons and the spread of inaccurate and misleading information; and, finally, freedom from encroachment on personal decisions made in one’s own sphere (Curtin, 1994). 

Normally, signed informed consent is license to disclose private information, however, care must be exercised to insure that it is understood that private information is legally the personal property of the client and is lent to those involved in his or her care for specific, mutually agreed upon purposes (Curtin, 1994).  Therefore, all professional codes of ethics underscore the client’s right to privacy and are rooted in Constitutional law and are reinforced by statutes, regulations, and standards that impose special restrictions upon professionals (Hamilton, 1996).

Whereas a compelling state interest must exist when intruding upon individual privacy, only a rational basis is required for the state to obtain confidential information. 

Legal protection of client rights is, therefore, weaker for confidentiality than for privacy (Parsi et al., 1995).  It is notable that such protection applies to government action and does not extend to parties within the private sector, such as managed care organizations (Parsi et al.,1995; Corcoran, Kand, and Winslade, 1994).       

In order for a breach of confidentiality involving defamation within the therapeutic/managed care relationship to be defensible, there must, first of all, be proof of malice and, second, such a breach can be defended on the basis of truth, good faith, and the advancement of important patient interest (Parsi et al., 1995).  However, should such a breach of confidentiality occur, legal remedies on the part of the injured client are available only after the fact, when, by definition, damage has already been done (Parsi et al., 1995). 

This sentiment is echoed by written testimony to a congressional committee provided by the Coalition for Health Care Choice and Accountability: “Health care is not like any other commodity.  Certain injuries to health cannot be repaired.  We can’t always return bad health for a better model” (Sleek, 1997).

Corcoran, Kand & Winslade, W.J. (1994). Eavesdropping on the 50-minute hour: Managed mental health care and confidentiality, Behavioral Sciences and the Law, 12, 354.

Hamilton, P.M. (1996). Realities of contemporary nursing. Addison-Wesley Publishing Company.

Parsi, K.P. and Winslade, W.J. and Coracoran, K. (1995). Does confidentiality have a future? The computer-based patient record and managed mental health care. Trends in Health Care Law Ethics, 10 (1-2), 78-82.

Sleek, Scott (1996, Nov.). State laws are reining in managed care. APA Monitor. (online). Available: http://www.apa.org/monitor/nov96/managa.hmtl

Smith-Bell, M. & Winslade, W.J. (1994). Privacy, confidentiality, and privilege in psychotherapeutic relationships. American Journal of Orthopsychiatry, 64, (2), 183.

Weissburg, D. J.(1995). Managed care organizations and confidential patient information: the need for a uniform standard. Journal of Health Care Finance, 21 (4), 42-6.

 

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