Wednesday, May 11, 2016

Privileged Communication, Respect of Persons, and Informed Consent

As medicine has adopted electronic records systems and pushed for integrated health care operations (the actual working definition of which varies widely), concerns about privacy and oversharing records have arisen. A recent Google search for this erosion of privacy resulted in 97,600,000 hits. In 2015 an estimated 100 million health care records were stolen, affecting approximately one out of every three Americans, an increase of 11,000 percent over the previous year. Clearly security has not kept pace with developments in the technology involved. This situation is ripe for lawsuits.

Some have warned that such records systems can lead to other types of damages, pointing to 147 such adverse events in 2013 alone, and have clearly advised for the separation of physical and mental health records. There has also been a successful movement in Minnesota which is using legislation to challenge forced shared records adoption by psychologists in health care settings. Its leaders cite two main motivations: potential for harm, and the right of psychologists to govern their own practices.

As if this was not of enough concern, some of these operational models, which may include mental health services, also build in compulsory "consent" to share records with unnamed "healthcare professionals". I say compulsory because this consent is required in order to receive services. This consent process occurs when one is under the duress of suffering, and before one can know what exactly is in the record, the purpose of the sharing, and who specifically will receive it. This means that such a process fails to secure informed consent, part of the ethical bedrock of the mental health professions, something we learn almost from the moment we set foot in training programs.

In all 50 states clients of a variety of mental health professionals are granted the right of privileged communication in therapy. Aside from exceptions having to do with harm to self or others this right is absolute; no third party has an entitlement to this information. Compulsory consent processes force therapy clients to waive the right of privilege in toto; once it is waived there is no longer any privilege. No other professional services for which persons may claim privilege (clergy, attorneys) engage in compulsory consent in order to receive their assistance.

This is so because it is ethically and morally wrong.

In addition to the violation of informed consent and right of privilege, these practices fail to respect the autonomy of persons, their right to self-determination and choice. They also fail to act with integrity, beneficence and non-maleficence in carrying out professional services. These duties are spelled out in the ethical codes of all mental health professions in one way or another.

Compulsory and total consent processes are sought after presumably for two reasons: perceived ease of communication, and the convenience of business procedures including billing (in all honesty I think the latter is the real motivation). It is claimed that such conveniences result in improved outcomes, but research support for that is mixed. Where support exists it regards those who cannot speak for themselves, such as the very young, the very old, and those who have been deemed incompetent. It is an injustice to treat all persons in this same manner. Further, an informed consent process at the point information is needed has always been available. In 25 years of practice I have never known this to not work well.

Combine lack of security with totally open mental health records and you have an enormous problem. Oversharing and failure to respect persons will lead to injury and therefore litigation. That is one way to resolve these predicaments. The media will also get involved, and that is another potential pathway to resolution. Or we could all just go ahead and do the right thing.