This article is a reprint of the one which first appeared in the San Francisco Recorder on 07/24/96

Though recently protected from disclosure in the federal courts, therapists’ records remain under siege by insurance companies

By: Mark Levy, M.D.

Confidentiality is the core of a patient/therapist relationship. Trust, the very foundation of therapy, is eroded by a threat to privacy.

And in June, the U.S. Supreme Court decided that all psychotherapist-patient communication is protected from compelled disclosure in federal courts. The ruling in Jaffee v. Redmond, 1996 WL 315841, marks an enormous victory for patient confidentiality — but it does nothing to protect patients from insurance companies, Medicare and other organizations and agencies.

Inspectors from a major insurance company — Albany, N.Y.- based Physicians Health Plan — regularly monitor therapists’ record-keeping by entering offices and reading files. Even the federal government’s Health Care Financing Administration has claimed that inspectors from Medicare insurers have the right to read therapists’ records to assure that Medicare patients receive the same treatment as others. This sham explanation hides the insurers’ true goal — to invade the doctor-patient privilege. Because of the possibility of such inspections, some therapists now routinely decline to see any patients covered under the Medicare program. Forget whether patients can trust that their therapy is confidential — they may not get the treatment they need in the first place.

In managed care, mental health professionals are required to state a specific diagnosis and treatment plan to obtain authorization for what is usually a very brief period of care. It is virtually impossible for a patient to give informed consent to this release of information: When an individual is hurting, her priority is to make the pain go away, not to think about the implications of disclosure.

For example, many people occasionally think about suicide, if only in passing. If the psychotherapist notes every instance of suicidal thoughts, the patient might be branded as a suicide risk and subsequently denied life insurance. A patient can’t validly consent to allow access to sensitive information if that patient cannot fully comprehend the consequences of his decision.

If you think the assault on patient confidentiality is a purely hypothetical one, consider a suit brought by a coalition of groups helping AIDS patients in Boston. The suit was aimed at stopping auditors at the Department of Health and Human Services from disseminating the names of AIDS patients to various government agencies. Worse, according to Time magazine, several years ago a banker who served on a state health commission obtained a list of every cancer patient in his community and proceeded to call in their loans. The banker’s name was not made public, and he was never punished.

The Dangers Of Progress

Many states, including California, are considering the development of a comprehensive, computerized database for medical records. Maryland’s Health Care Access and Cost Commission, which is responsible for annually reporting variations in fees charged and the use of physician services, has already done so.

Placing medical information in centralized computer systems may improve efficiency, but it raises privacy concerns. Such records are useful only if they are widely accessible. Though Maryland’s HCACC maintains that confidentiality is protected because each patient is identified by an encrypted number, opponents say the main threat to security comes from within.

“The larger the scope of the [HCACC]’s activities, the larger number of insiders who may become involved. As long as data are considered valuable by some parties . . . there will be security risks,” according to professor Beverly Woodward of Brandeis University, who is writing a book about medical databases.

To combat the threat to confidentiality, the American Psychoanalytic Association, affiliated with the San Francisco Psychoanalytic Institute and the San Francisco Foundation for Psychoanalysis, has recommended an extreme, but logical solution — that therapists keep no record of individual treatment sessions. Issues of privacy are most pronounced for those patients seeking psychoanalysis, where disclosing intimate details is an integral part of treatment.

While the Jaffee v. Redmond decision guards patient privacy in federal courts, it does not protect sensitive information from other prying eyes.

AUTHOR: Mark Levy, M.D., is an assistant clinical professor of psychiatry at the UCSF School of Medicine and president of the San Francisco Foundation for Psychoanalysis.

The Supreme Court ruling in the Jaffee v. Redmond Case

On June 13, 1995 the U.S. Supreme Court ruled 7-2 that the communication between a licensed psychotherapist and a patient (for diagnosis or treatment) is PRIVILEGED and that the therapist cannot be compelled to reveal the content of such communication in a Federal court without the patientÕs consent.

This milestone ruling, in effect, creates a new privilege in law at the Federal level. The ruling is particularly strong in that it is not left to the descretion of judges in individual cases to decide whether the need for evidence in a particular case should override the patient’s virtually absolute privilege of blocking all access to such material.