Protecting Privacy with the Absence of Records

 by Ivan Miller, PhD*

 Is it within the standard of practice to protect privacy by treating a client without assigning a diagnosis? - By working with a client who is using a pseudonym - Or by not recording sensitive material in the record? In Colorado, 519 Psychologists endorsed a petition indicating that they supported these practices. Confidentiality is always threatened when there is a record that can be misplaced, subpoenaed by an adversarial attorney, or obtained by coercing the client to sign a release of information. Recognizing that records are vulnerable to such breaches of privacy, professionals protect privacy in some circumstances by not recording sensitive information or at times, by treating clients under a pseudonym. Moreover, many times therapists offer services without performing a diagnostic evaluation or recording a formal diagnosis. Nonetheless until now, withholding information from records has not been formally endorsed as an acceptable standard of practice.

The Colorado petition was a response to a state licensing board proposed rule that appeared to require that all people seen by a psychologist must: (1) be diagnosed, (2) have their identities recorded, (3) have their reasons for consultation recorded, and (4) have the content of each meeting recorded. To protest the proposed rule, a group of psychologists organized the Colorado Psychologists’ Ad Hoc Committee on Record Keeping and mailed a letter to all of Colorado licensed psychologists.  Each letter included seven pages of explanation and a postcard petition that psychologists were asked to sign and return. Of the 1917 psychologists contacted, 519(27%) returned signed postcards supporting the petition. The statements in the petition that pertain to privacy were the following:

I object to the requirements

In today’s world, mental health clients are stigmatized and penalized when they receive a diagnosis. Although a national survey indicates that within any year at least 29% and over a lifetime 48% of the population meet the criteria for a mental health diagnosis (Kessler et. al., 1994), it is only those who seek treatment who actually receive a diagnosis. Once diagnosed, clients may be unable to obtain affordable health insurance or be denied life insurance. The stigma can affect how health care professionals and others who learn of the diagnosis treat them. An erroneous diagnosis is often difficult to remove from one’s record. Increasingly, there are clients who do not want to be diagnosed - self-paying psychotherapy clients, coaching clients, and other clients who want to consult with a mental health professional but are not asking for a diagnostic evaluation.              

On the other hand, there is strong societal pressure to diagnose every client.  Some insurance companies are frustrated if they are conducting an underwriting evaluation, and they are told that a client only consulted with a psychologist for personal and interpersonal concerns, not for treatment of a DSM-IV diagnosis. These companies want a diagnosis so they can categorize the client, and often, they use the diagnosis to restrict the client’s pending insurance policy. Furthermore, within the profession, proponents of the medical model believe that the profession is enhanced when clients are given a medical diagnosis, and in many medical settings, diagnosis is required.

Consumers, however, have a different position regarding diagnosis. Consumers only want a diagnosis when it will clearly lead to better treatment or some benefit greater than the potential discrimination or stigma. In psychotherapy, many times the DSM-IV diagnosis does little to guide treatment, and it is often not necessary. Moreover, there is no clear dividing line between psychotherapy and the processes of problem solving, consultation, or coaching - services that do not require a diagnosis. Considering the negative repercussions of a mental health diagnosis, it is not surprising that in many situations consumers wish to be able to talk with a professional or use the tool of psychotherapy without either a diagnostic evaluation being conducted or a diagnosis being recorded. The petition documents that a large proportion of psychologists supports the right to talk with a mental health professional without receiving a formal diagnosis.

The best guarantee of complete privacy is to be treated under an alias or pseudonym. Such a practice leaves no evidence of the consultation. In spite of our profession’s commitment to confidentiality, psychotherapists have frequently accepted a role as social control agents (Bollas and Sundelson, 1995), and as a result, some professionals have wondered if treating clients under an alias is ethical.  Although treatment under an alias should not be used as a way to promote a criminal activity, people’s right to have a private discussion should outweigh the right of insurance companies and government to have access to their private issues. Supporting this practice, at the hearing regarding the licensing board’s proposed record-keeping rule, three psychologists testified that they treat clients under pseudonyms.  One client who was in treatment under a pseudonym wrote an eloquent (but unsigned) letter to the licensing board describing how she believed that she was only able to enter therapy because her therapist agreed to the privacy of treating her under a fictitious name.

At these hearings, there was strong protest against requiring a record that includes the client’s reasons for treatment and the content of sessions. Such a record would often contain the information that clients most want kept private, and some clients request treatment without these records. This concern about potential breeches of confidentiality is more than theoretical. At times, records can end up harming a patient by being subpoenaed in a future lawsuit. This can happen if the client is injured and sues for psychological damages. Once a person’s mental health is introduced in a trial, all previous records are open to examination by the opposing attorneys, and these opposing attorneys can use the information in the record to embarrass the client. One therapist had a district attorney remove a record through a no-knock search because his client was involved in a shooting. Another therapist reported that a victim of domestic violence killed herself after a beating, and the abusive husband subpoenaed her record in order to sue the therapist for the suicide. There are other reports of records being sold or accidentally released. If mental health professionals are in treatment, they may not want the professional peer reviewer to see their personal concerns. These examples demonstrate that once a record exists, it can end up somewhere the client did not want it.

In spite of the many ways that records can create a potential for loss of privacy, most of the literature encourages thorough records. An interview with a malpractice attorney was quite illustrative in describing the conflict between the pressure to record a client’s private concerns and the consumer’s perspective. When advising psychotherapists on how to protect themselves from malpractice, he emphatically recommended recording as much as possible based on the principle that if it isn’t in the record, it may not have happened. He then took the other side and from the role of a consumer he said, “However, in the case of a guy like me, I’d like to see someone who did not diagnose me or keep records. That’s why I like the idea of coaching.” In the words of another consumer, “If a psychologist is going to give me diagnosis and make a record of my personal secrets, I think I’ll just talk to  a friend over a beer.” Most people have at least some personal concerns that they would prefer never appear in any record.

Although the petition protested legally required records, most of the psychologists who signed it keep records as an aid to their memory. Nevertheless, they had many ways to protect client privacy, and they wanted these methods protected from the state record-keeping rule. Some write records in a personal shorthand that is intended only to stimulate their memory and cannot be accurately interpreted by a third party. A few clients are seen under an alias. In some cases, therapists agree to see clients without keeping records, and usually in these cases, the therapist advises the client that the lack of any records will make remembering previous sessions more difficult. Even in situations where the therapist believed that thorough record keeping was important, most admitted that there were times that sensitive information was deliberately not entered in the record.

Desire for the greatest privacy is one of the motivations for clients seeking self-pay therapy and coaching, and the best guarantee of privacy is consultation without records or a diagnosis. Complete privacy is threatened by pressure from insurance companies, proponents of the medical model, government agencies like the licensing boards, and malpractice attorneys who advocate for a standard of practice that does not allow for treatment without complete records. Fortunately, it does not take a majority vote to establish a standard of practice; a substantial minority can establish that a practice is within accepted standards. The 519 Colorado Psychologists have established that a substantial number of psychologists believe that it is within the standard of practice to both omit records for privacy concerns and only conducting a diagnostic evaluation upon request.

References

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