Awake and Doctor-Patient Confidentiality

Today’s post was inspired by a question from Andrew, who wrote about the television show Awake: “In the most recent episode, [the main character, a police officer] is involved in a hostage situation, and a psychiatrist is in the room, and talks about the hostage taker’s mental health in detail. Given the circumstances, was that legal?”

This is a pretty complicated question.  First, we have to determine which law applies, and there are several to choose from.  Often when people talk about doctor-patient confidentiality they are actually referring to the physician-patient privilege, which is a rule of evidence in some jurisdictions, including California.  Cal. Evid. Code § 994.  Since this incident didn’t involve the psychiatrist testifying in court, it doesn’t apply.

Apart from the evidentiary privilege, there is also a duty of confidentiality, which is both an ethical and a legal duty.  At the state level, California has the Confidentiality of Medical Information Act, and at the federal level there is the Health Insurance Portability and Accountability Act, better known as HIPAA.  Both of these apply in this case, but there are exceptions to both.

California was one of the first states to recognize that therapists have an affirmative duty to warn others when a patient may have violent intentions.  Tarasoff v. Regents of the Univ. of Cal., 17 Cal.3d 425 (1976).  The Tarasoff case is fairly famous, and is frequently discussed in law school torts casebooks.  Notably, however, the Tarasoff case was decided before the CMIA was passed, and the CMIA does not contain an exception for protecting others from a violent patient.  This left therapists in a tricky position, relying on the exception in the evidentiary privilege to find an implicit exception in the duty of confidentiality.

This recently changed with the passage of AB 1178 in 2007, which amended the CMIA to allow disclosure of medical information

consistent with applicable law and standards of ethical conduct, by a psychotherapist … if the psychotherapist, in good faith, believes the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims, and the disclosure is made to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.

Cal. Civ. Code § 56.10(c)(19).  As it happens, this exception is taken almost verbatim from a similar exception in HIPAA.  From 45 C.F.R. § 164.512(j):

A covered entity may, consistent with applicable law and standards of ethical conduct, use or disclose protected health information, if the covered entity, in good faith, believes the use or disclosure:
(i)(A) Is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and
(B) Is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat;

I didn’t do a detailed review of the case law, but I suspect disclosing a patient’s mental health information to a police officer handling a hostage situation probably counts.

So, to sum up, the exceptions to the state and federal duties of confidentiality allow the psychiatrist to disclose the information, and the Tarasoff case imposes a duty to do so.  It looks the psychiatrist was in the clear.

7 responses to “Awake and Doctor-Patient Confidentiality

  1. I got the impression that the patient was incarcerated by the state in connection with some crime (attempting to blow up a building iirc). If so, does the state’s involvement in his involuntary commitment enter into the equation at all?

  2. Is there an implied or actual limit in scope to the disclosure regarding the pertinence of the information to disclose?

    • I think the statutes are pretty clear that the scope of the disclosure is limited to information that “the psychotherapist, in good faith, believes … is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims.”

  3. Don’t doctors, of all stripes, have a duty not to reveal information about patients, but only in so far as not proactively. For example if I call patient X’s doctor in a murder trial the doctor can refuse to answer certain questions under the idea of confidentiality, at least until the judge tells them they have to answer. That’s the way it works in Canada at any rate.

    The basic way I’ve always had it described to me is that it docoto0’s don’t actually have privilige, at least not like attorney’s or spouses do. Doctors have formal rules about confidentiy but it’s not the same a court supported privilige of lawyers.

    • Melanie Koleini

      In the US, doctor patient confidentiality IS legally binding but not absolute.
      Health care providers cannot discuss health information with out the patient’s consent.

      If Brucie Wane told his psychiatrist he killed the Joker the psychiatrist could not be completed to testify against him. However, if Wane told his doctor he was planing to kill the Joker, the psychiatrist could tell someone.

      Two of the most common loopholes in doctor-patient confidentiality are health insurance and pharmacies. To get health insurance to pay for a service, the patient must agree to let the healthcare provider discuses his case with the insurer. Also, pharmacies track how many and what type of prescriptions doctors write. Even if this information isn’t attached to a specific patient name, in the age of Google, attaching a patient’s name to the drug they are taking isn’t hard even if they pay for it out of pocket.

      Once health information is in the hands of third party, it is often no longer covered by HIPAA.

      So if you live in the Marvell Universe and what to hide your mutant status from for your employers, don’t use the company’s health insurance!

  4. If I remember correctly, I thought that HIPAA does not provide a private cause of action for breach. I’m probably thinking of something else, but on the off chance that I’m not, doesn’t it have absolutely no impact on the individual whether or not they are protected by HIPAA (or more specifically, their information) because even if they could prove that there was a breach of the duty, they have no cause of action enforceable under the law? And in that case, all they have recourse to is an ethical inquisition if the licensing board decides it’s appropriate, right?

    • In the research training I had (for fMRI-based scientific research on subjects), it was mentioned that a breach of duty would likely result in IRBs not approving future studies, and there are possible fines. Also, research that doesn’t follow proper ethical guidelines is considered as possibly tainted as that which doesn’t follow good scientific guidelines; journals might refuse to publish such papers. I don’t know if there are similar provisions for non-research-related subject/patient confidentiality requirements under HIPAA, but it’s possible if there are many of them are similarly reputational and might result more in loss of opportunities or loss of status in private bodies rather than legal sanction.

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