Confidentiality Document

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					                                                                                       APA Document Reference No. 870001

                                 Guidelines on Confidentiality
                                         RESOURCE DOCUMENT
                                      Approved by the Board of Trustees, June 1987
                                         Approved by the Assembly, May 1987

         "The findings, opinions, and conclusions of this report do not necessarily represent the views of the officers,
         trustees, or all members of the American Psychiatric Association. Views expressed are those of the authors."
         -- APA Operations Manual.

This statement was drafted by the Committee on Confidentiality.*


   Whatsoever things I see or hear concerning the life of man, in any attendance on the sick or even apart
   therefrom, which ought not to be voiced about, I will keep silent thereon.
                                                                                       —Hippocratic oath

Psychiatrists should not discuss their patients with anyone who is not directly involved in their patients' care. They
should limit the material that they enter into their patients' records to only that which is clearly necessary for their
patients' care, and they should protect these records from being divulged to anyone without their patients' freely
given and informed consent. Where a patient has been judged incompetent to make these decisions for him- or
herself, the court-appointed guardian should act on the patient's behalf; where there are clinical questions about a
patient's competence to give a valid consent but no such legal determination has been made, it is advisable to obtain
the concurrence of responsible family members to any consent obtained.

Keeping patients' confidences is part of a psychiatrist's ethical and legal duty. Any breach of such confidence by a
member of the American Psychiatric Association (APA) may lead to admonishment, reprimand, suspension, or even
expulsion. In a number of states, breach of confidentiality may also be judged to be unprofessional conduct and
grounds for suspension or revocation of the psychiatrist's license to practice medicine. It can even be a basis for civil
litigation or criminal action against the psychiatrist. Psychiatrists should be careful, however, not to inadvertently
use confidentiality as an excuse to avoid working with relatives involved in their patients' care. The concerns of
relatives for information about seriously disturbed patients need to be addressed and should not be dismissed
summarily under the guise of confidentiality.

At times, psychiatrists' duties regarding confidentiality come into conflict with their other professional
responsibilities. When this happens, the psychiatrist must balance the welfare of the patient against the welfare of
society. Almost all states have statutes requiring psychiatrists and other physicians to report to government
authorities certain conditions, such as infectious diseases and child abuse. In cases involving imminent danger to
others, psychiatrists must balance their duty to protect their patients' confidences against their responsibility to the
members of the public at risk. Whenever feasible, psychiatrists should inform their patients of the general limits of
confidentiality at the onset of treatment.

The application of these principles is at times fraught with difficulty. The guidelines that follow are intended to help
the practicing psychiatrist deal with the issue of confidentiality in a variety of special circumstances. When in doubt,
  The committee included Aron S. Wolf, M.D. (chairperson and Assembly liaison), Richard Bridburg, M.D., J.
Richard Ciccone, M.D., Edward C. Kirby, Jr., M.D., Daniel A. Deutschman, M.D., Anthony J. Reading, M.D.,
George R. Caesar, M.D., Cynthia Rose, M.D., and Jerome Beigler, M.D. (consultant).

                                The American Psychiatric Association is a national medical specialty society, founded in
                                1844, whose 36,500 physician members specialize in the diagnosis and treatment of mental
                                and emotional illnesses including substance use disorders.

                                The American Psychiatric Association
                                1400 K Street NW • Washington, D.C. 20005
                                Telephone: (888) 357-7924 • Fax: (202) 682-6850 • Email:
                                                                                 APA Document Reference No. 870001

however, the wisest course of action is to consult a senior colleague or the ethics committee of the local psychiatric
association. As the details of statutes about confidentiality and records vary considerably from state to state,
psychiatrists should become familiar with the requirements of the localities in which they practice. The APA or the
county medical society can generally be contacted for such information. However, no set of fixed guidelines about
confidentiality can be fully responsive to new and emerging societal issues or changing circumstances of practice,
such as the problems of confidentiality currently posed by AIDS infections. As APA continues to address these
issues, These guidelines will be appropriately revised and updated.



Parents and legal guardians are entitled to relevant medical information about children for whom they are
responsible and, where appropriate, should be included in the treatment. Minors themselves also have rights
regarding confidentiality and must feel free to talk about their parents and other adults without fear of reprisal.
Extraneous information that the child would not want the parents to know should not be discussed with the parents
or included in the chart. However, information that parents need to make informed decisions about their child's care
must be provided to them. Child and adolescent patients should be informed about the nature of the information
about them that may be shared with their parents. At a level appropriate to the child's age, he or she should also be
informed about the limits to confidentiality in the particular therapeutic situation.

Parents of young minors have the authority to make decisions, the right of access to information, and the power to
waive the patient-physician privilege. Unless information is sensitive, embarrassing, or likely to exacerbate the
problem, parents should be kept informed. The issue of parental authority is less clear with teenagers, especially as
they approach the age of majority. Although the rights of adolescent patients to confidentiality may be limited, the
need for confidentiality in their treatment parallels that of adults. Withholding of information from the parents is
often a necessary condition for therapy, except when risk to life or other major danger justifies a breach of
confidentiality. In most situations, adolescent patients should be encouraged to inform their parents themselves
about matters the parents need to know. No matter how tedious and complex, confidentiality considerations exert a
powerful influence on treatment outcome in teenage patients.

To release information about a minor patient, the signature of either parent is generally adequate except in a case of
divorce or custody, in which case the signature of a custodial parent or agency is required. In releasing information
about an adolescent, however, it is desirable to have both patient and parent sign the consent document. In a case of
actual or suspected child abuse, the legal obligation to report the relevant information takes precedence over
confidentiality in order to protect the child. These statutes differ among jurisdictions and, for the most part, neither
authorize nor require the psychiatrist to disclose all information about a patient or every instance of abuse. For
example, some states require the reporting of all instances of past abuse, while others limit this duty to individuals
who are minors at the time the psychiatrist learns of the allegation. Similarly, some states specifically delineate what
information the psychiatrist is required to report. For this reason, psychiatrists should take care to acquaint
themselves with the laws governing the states in which they practice. Psychiatrists usually have qualified immunity
for permitting release in such cases.

Group and Family Therapy

Although all group therapy participants should be expected to respect the confidences shared with them by other
group members, the psychiatrist generally has no way of enforcing this. Some jurisdictions do, however, have legal
requirements for group therapy participants regarding confidentiality. All new group members should be apprised of
their responsibility to keep confidential matters that are discussed in the group and of the inherent limitations
associated with this process. Because of these limitations, issues of trust and distrust can be expected to surface in
the group and may be explored by it in a productive manner. In keeping records of group therapy, no reference to
other patients in a manner that would identify them should be included in any individual chart. To keep a separate
record of group interactions, the psychiatrist may make notes about the group that are not included in the individual

                                        Guidelines on Confidentiality (2 of 9)

                  The American Psychiatric Association • 1400 K Street NW • Washington, D.C. 20005
                       Telephone: (888) 357-7924 • Fax: (202) 682-6850 • Email:
                                                                                  APA Document Reference No. 870001

In family therapy, although it may be preferable to keep records on a family basis, it is usually more practical to
keep them in one of the participant's individual charts, as most facilities maintain records in this manner. Since
authorization from the patient named in the chart is generally sufficient for the release of information, care must be
taken about information included about other family members. Whether or not the record is kept on an individual or
a family basis, it may be wise to have all of the involved family members sign a statement at the beginning of
therapy acknowledging that it will contain information about all of them and specifying which signatures or
combination thereof will be required to authorize access to the chart or release information from it. In the event of
substantial family change, such as divorce or a child's reaching majority, particular care should be exercised not to
release information inappropriately.

A Patient’s Death

Many patients are concerned that their affairs not become public knowledge after they die. Psychiatrists should
remember that their ethical and legal responsibilities regarding confidentiality continue after their patients' deaths. A
psychiatrist may be asked to disclose information about a deceased patient to relatives coping with their reactions to
the death, contemplating a malpractice action, or contesting a will, to law enforcement agencies, such as the police,
or to the Internal Revenue Service.

States that permit patients' access to their own records generally permit access by specified third parties (executors,
administrators, or next of kin). The release of information about a deceased patient to other parties should be made
only after the receipt of appropriate court documentation. In cases in which the release of information would be
injurious to the deceased patient's interests or reputation, care must be exercised to limit the released data to that
which is necessary for the purpose stated in the request for information.

Evaluation on Behalf of a Third Party

Psychiatrists are often requested to evaluate individuals on behalf of third parties, such as courts, employers,
government agencies, the military, prisons, workmen's compensation boards, or employee assistance programs. Care
must be taken before proceeding with the evaluation to inform the individual of the need to make a report to the
third party and of the limitations this places on confidentiality. The psychiatrist also has a responsibility to the
individual to limit the material contained in the report to matters relevant to the purposes for which it has been
requested, excluding any extraneous material that the individual has disclosed in the course of the evaluation. The
medical record should contain a notation that the individual has been advised that anything he or she says during the
evaluation may be included in the report that the psychiatrist has to make. While the report and related medical
record should not be released to the individual without the consent of the third party authorizing it, permission to do
so is generally forthcoming. The psychiatrist may request such authorization as a condition of performing the

Treatment at the Request of a Third Party

Psychiatrists are asked at times to undertake treatment of patients on behalf of third parties, such as workmen's
compensation boards, the military, or prisons. The third party may require access to the ongoing record in the
patient's medical chart as a precondition of such treatment. The patient should be clearly informed of the limitations
on confidentiality in the particular case and advised to act accordingly. In such an instance, the psychiatrist should
take care to limit the record to information that is necessary for treatment.


Maintaining Records

In many jurisdictions, psychiatrists are required to keep contemporaneous and retrievable records of the evaluation
and treatment of all patients for whom they undertake medical responsibility. Each of the following items may be of
value in such a record, all documented by date: 1) relevant information obtained, 2) findings on examination, 3) tests
and procedures ordered and the results thereof, 4) diagnostic conclusions, 5) treatment prescribed, and 6) plans for
further care. For psychiatric patients, such issues as suicide, commitment, and potential dangerousness should also

                                         Guidelines on Confidentiality (3 of 9)

                    The American Psychiatric Association • 1400 K Street NW • Washington, D.C. 20005
                         Telephone: (888) 357-7924 • Fax: (202) 682-6850 • Email:
                                                                                 APA Document Reference No. 870001

be fully documented. The well-kept record serves a number of functions. It provides a longitudinal archive for the
treating psychiatrist, it allows for an orderly transfer of patient care should this become necessary, it allows a clear
and concise way to substantiate billing, and it provides a clear record of what has occurred should there be any legal
proceedings. The medical record must be maintained for a given period after treatment has been terminated,
although the time limit for this varies from state to state.

The psychiatrist should be particularly sensitive to the difficulties involved in protecting the confidentiality of
psychiatric records in settings where access is difficult to control, such as hospitals and public clinics. Because of
this, and because of increasing demands to release information to third parties, the information in a medical record
should be limited to that which is necessary to meet the requirements of law and to maintain a documented data base
appropriate for continued treatment. Extraneous and irrelevant material should be kept to a minimum, as should
material that is sensitive or potentially damaging to the patient or other persons.

The psychiatrist may keep informal personal work notes on a given case, independent of the official medical record.
These should be kept physically separate from the medical record and should not be used as a substitute for it.
Psychiatrists can record their impressions and speculations in these work notes, as well as verbatim and process
notations, other sensitive information, and information from third parties. Psychiatrists should be aware, however,
that such personal notes are protected from disclosure only in a limited number of jurisdictions.

Patient Access to Records

In the current atmosphere of increased participation by patients in their own care, requests are often made that they
be given their own records or be permitted access to them. Actual medical records made and maintained by
psychiatrists belong to them or to the clinics or hospitals in which they work, and there is no obligation to relinquish
them to patients. In many jurisdictions, however, the patient has the right to inspect and/or have a copy of the
medical record if he or she requests. Some states limit this access and permit the psychiatrist to withhold from the
patient information that would have a negative impact on his or her health or well-being, although the record must
be released to other physicians of the patient's choosing. Psychiatrists should become familiar with the laws
governing patient access to records in the jurisdictions in which they practice.

Release of Records to a Third Party

Psychiatrists and other physicians are constantly asked by a variety of third parties to release information about their
patients. The majority of these releases are from insurance carriers, but they may also be from other health care
providers, from administrative bodies, and from various components of the legal system. Generally, such a request is
accompanied by a written authorization signed by the patient. Many states have statutes that address the form and
duration of consent, the type of information that may be released, and restrictions governing disclosure. Psychiatrists
should thus familiarize themselves with any special provisions that apply in the jurisdictions in which they practice.

No information about patients should be released to parties not directly involved in their care without their explicit,
written permission unless such releases are required by law or by court order. The patient's consent to the release of
information from his or her medical record should be informed and given freely, without threat or coercion. In
practice, however, this is often not the case. To receive insurance benefits to which they are otherwise entitled, for
example, patients are frequently requested to sign open-ended, blanket releases without restrictions on the type of
information to be released. For their consent to be informed, patients should appreciate the nature and content of the
information to be released, the purposes for which it will be used, the manner in which it will be protected, and the
extent to which any of the information may be redisclosed to other parties. Logically, it is not possible to give a fully
informed authorization before the care itself has been rendered and the patient has had an opportunity to review the
information involved. Authorizations that accompany requests for release of information, however, frequently
predate much of the information requested.

In the absence of clear legal guidelines on how to proceed when the authorization for the release of information is
questionable, the psychiatrist should take care to protect the patient's interests. If he or she has any questions about
whether the patient understood the nature and extent of the disclosure involved or is concerned about the release of
sensitive or harmful material, the psychiatrist should contact the patient and discuss these matters before releasing

                                        Guidelines on Confidentiality (4 of 9)

                  The American Psychiatric Association • 1400 K Street NW • Washington, D.C. 20005
                       Telephone: (888) 357-7924 • Fax: (202) 682-6850 • Email:
                                                                                  APA Document Reference No. 870001

the information. As always, the psychiatrist should take care to limit the information disclosed to that which is
relevant to the particular purpose of the request.

Psychiatrists may occasionally receive requests for information about patients over the telephone or through other
informal channels. Except in matters of medical emergency, no release of information should be made without the
patient's specific approval and no information should be given or sent to anyone unless the psychiatrist has
reasonable certainty of that individual's identity. A psychiatrist should not acknowledge that an individual is or was
under his or her care without the patient's specific approval.

Sharing Records with Consulting Health Care Professionals and Agencies

Generally, the sharing of clinical information with a consultant directly involved in the care of a given patient does
not require specific authorization, provided that the patient has approved of the consultation. Similarly, a letter of
referral to another health care professional or a letter in reply to such a referral does not need specific authorization
if the patient has approved the referral. Care must always be taken to limit materials sent through the mail and to
indicate clearly that the material is “Personal and Confidential” for the addressee. Where there is any doubt about
the appropriateness of sharing clinical information with another professional, a release from the patient should be

Many practitioners and psychiatric clinics have formal joint service and consultative arrangements with other health
care providers that involve conjoint care of certain patients. Whenever clinical information is shared between such
practitioners and agencies, written agreements should be developed that specify the amount and type of material that
may be transmitted between them in providing collaborative care. Patients should be notified of the arrangements
and have the option of having their records not shared in this manner, even if this deters optimum care.

Redisclosure of Records

Psychiatrists may possess copies of patients' medical records that have been obtained from other health care
providers. Patients' authorizations for psychiatrists to release information to other parties do not cover the release of
these records unless they are specifically included in the release and their re-release is not otherwise prohibited.

The laws about redisclosure of medical information that has been sent to insurance companies, government
agencies, and others not involved in providing health care are much less clear. In many instances, these bodies are
not legally prohibited from releasing medical information to other parties. The ever-present possibility of such
redisclosure should caution psychiatrists to be extremely prudent about the information released to them.
Nonmedical agencies and organizations are not bound by the same ethical standards as health professionals
regarding the confidentiality of medical records that come into their possession. Although most take reasonable
precautions to protect such data, access to these data is not formally regulated and redisclosure to other parties may
occur with relative ease.

Physician’s Death or Retirement

When psychiatrists sell their practices or are about to retire, the confidentiality of their records must be maintained,
as these are kept available for patients who desire access to them. A useful procedure is to notify each contactable
patient of the practitioner's intent and ask the patient to choose one of three alternatives on a return postcard: 1)
transfer of records to a designated successor, 2) transfer of records to a practitioner of the patient's choice, or 3)
transfer of the records to a place of safekeeping until the statutory requirement for retention has expired. When
necessary, a notice may also be placed in the local newspaper requesting former patients to contact the psychiatrist's
office about disposition of their records. In the event of the death of the practitioner, patients should be notified of
the event in the same way and given the same options. Should there be no response from a patient, the records
should be stored in a suitable facility for the required period of time and then destroyed.

                                         Guidelines on Confidentiality (5 of 9)

                  The American Psychiatric Association • 1400 K Street NW • Washington, D.C. 20005
                       Telephone: (888) 357-7924 • Fax: (202) 682-6850 • Email:
                                                                                 APA Document Reference No. 870001

Computerized Records

With the development of large, computerized information networks to process certain aspects of medical records,
the potential for harm to confidentiality is considerable. When the record itself is computerized, either in the office,
the clinic, or the hospital, extreme care should be taken to guard against inappropriate access to the information
contained. Whatever the system of safeguards installed, it is wise to determine whether it is “leakproof” with regard
to confidentiality by having an outside expert challenge it. When there is electronic transfer of data between
different information systems, such as between a clinic and a third-party payer, particular care must be taken to limit
the information transferred to only that which is necessary for the purpose involved, abiding by the same standards
as in the transfer of written material. The security of such linked systems should also be tested from time to time to
determine their ability to safeguard confidentiality. Psychiatrists should be aware that once medical data are entered
into nonmedical information systems, little can be done to protect these data from unwarranted access or
inappropriate use. The psychiatric profession has a responsibility to limit the amount of information transferred into
such systems, to help monitor them, and to educate the public about the potential dangers involved.


Private Practice

Psychiatrists in private practice must set up record-keeping systems in such a manner that confidentiality is ensured.
Patient charts should be kept where they can be securely locked up when not in use. All personnel working for the
psychiatrist should be informed of the tenets of confidentiality and made aware that they may not talk about patients
or give out any information about them to anyone without the patients' explicit permission. Office personnel should
be instructed to check that the authorization statement is signed and appropriate before releasing written information
to anyone, including third-party payers. When in doubt, they should be instructed to check with the psychiatrist
before acting.

Psychiatric Clinics and Hospitals

In multipractitioner mental health clinics and facilities, record storage is generally centralized in such a way that a
number of people have access to records. All personnel handling medical records should be apprised of their
confidential nature. Procedures should be established to ensure that access to a patient's chart is limited to personnel
directly involved in the patient's care and that information is not released without appropriate authorization.
Nonetheless, psychiatrists in these settings should take care to limit information contained in medical records to the
minimum required for good care and documentation.

The sharing of relevant information between psychiatrists and the other clinic and hospital personnel who are
involved in the direct treatment of their patients does not require authorization. However, caution must be exercised
in these settings not to reveal personal information about patients without their authorization to other personnel or to
representatives of other agencies involved in the patients' care, such as schools or social service programs.

Psychiatrists should be aware that special federal regulations govern confidentiality in federally funded drug and
alcohol abuse programs covered under PL 92-282. Further information about these additional restrictions on the
release of information can be obtained from the relevant state agencies.

General Hospitals and Multispecialty Clinics

In a general hospital, multispecialty clinic, or health maintenance organization, the psychiatric record may be
included in the general medical record. The psychiatrist should be aware that it may not be possible to protect access
to such records with the same care provided for records that are strictly psychiatric in nature. Because of this, the
psychiatrist should exercise particular care not to include sensitive or embarrassing material in these records. When
discussing a patient with another member of the staff, the psychiatrist must also exercise care to limit what he or she
says to only the information necessary for the patient's care, omitting all other aspects of the personal history with
which he or she has become acquainted.

                                        Guidelines on Confidentiality (6 of 9)

                   The American Psychiatric Association • 1400 K Street NW • Washington, D.C. 20005
                        Telephone: (888) 357-7924 • Fax: (202) 682-6850 • Email:
                                                                                 APA Document Reference No. 870001

Training Facilities

Maintaining confidentiality in training settings often poses special problems. All trainees should be informed of the
professional responsibilities they are assuming and of their obligation to hold in confidence information they receive
about patients. Special care must be taken by faculty and trainees alike not to discuss patients in corridors, elevators,
or other public places where they may be overheard. When patients are presented at teaching conferences, their
freely given consent must be obtained and care must be used not to identify them unnecessarily or to divulge
sensitive material not directly pertinent to the presentation.

Training facilities should make their teaching role and its implications explicit in the documents that patients sign at
the time of admission. Specific authorization is then not required for physicians to discuss the cases with trainees
participating in programs approved by the institution. Trainees who make entries in patients' medical records should
be instructed carefully about the issues of confidentiality involved and the need to exercise appropriate caution in
what they include. Psychiatric residents who wish to make detailed “process” notes for discussion with their
supervisors should generally keep these separate from official records and destroy such notes as soon as their use is

In training institutions, audio and video recordings of patients are occasionally made for teaching purposes.
Disclosure of these recordings to persons not directly involved in the care of the patients cannot be made without the
patients' written authorization. When making such recordings, it is wise to have patients authorize both the
recordings themselves and the specific educational purposes for which they may be used, making provision for the
patients to withdraw their consent at a later time if they so wish. Similarly, psychiatrists should take care not to
disclose or make use of patients' artwork or other creative products in ways that would identify them in lectures and
publications unless the patients' explicit permission is obtained.

Research studies that involve patients should not identify these patients in any way without their specific, written
approval. Even then, care must be taken to limit access to confidential material and safeguard patients' privacy. Case
material used for teaching purposes and in scholarly reports should be edited carefully to remove all identifying
information about patients. When this cannot be done, patients' written authorization for use of the material should
be obtained.


Physician-Patient Privilege

Physician-patient privilege is a legal concept designed to protect confidential medical information from disclosure in
a judicial proceeding. Physician-patient privilege is created by statute, and its scope and limitations vary from state
to state. Such privilege is the property of the patient, not the doctor, and may only be waived by the patient or his/her
legally authorized representative.

This privilege covers most communications made by the patient during the treatment relationship, the psychiatrist's
observations, conclusions, and diagnoses, and the medical records of these. Communications and observations made
for purposes other than treatment are not covered by the physician-patient privilege; such purposes include
examinations made upon court order, for employment, or for qualification for insurance. Disclosures made to a
physician in the presence of a third party not directly involved in the patient's treatment and disclosures to the
physician's staff may also not be covered by this privilege.
When asked to testify in court or by deposition about privileged information, a psychiatrist must decline to proceed
unless the patient or the patient's legal representative executes a valid waiver or unless the psychiatrist is compelled
to provide the information by the court. Even when so authorized or compelled, if the psychiatrist feels that the
disclosure would be unethical or damaging to the patient, he or she should resist within the full limits of the law by
using the available appeal procedures. If these fail, the psychiatrist may, as a matter of conscience, still refuse to
divulge the information requested, although he or she is then at risk of being held in contempt by the court. When in
doubt, ethical considerations require that the psychiatrist give priority to the right of the patient to confidentiality
and to unimpaired treatment.

                                        Guidelines on Confidentiality (7 of 9)

                  The American Psychiatric Association • 1400 K Street NW • Washington, D.C. 20005
                       Telephone: (888) 357-7924 • Fax: (202) 682-6850 • Email:
                                                                                  APA Document Reference No. 870001

The psychiatrist should always leave the interpretation of the scope and limitations of privilege to the courts and the
legal system. Almost all states limit the physician-patient and psychotherapist-patient privilege in some way. For
instance, these privileges are commonly not available when patients themselves put their mental conditions in issue
in lawsuits and may not be held valid in certain criminal proceedings, commitment proceedings, will contests, and
child custody disputes. Even when privilege is waived or denied, the psychiatrist must be careful to disclose only
material that is relevant to the matter at hand.


A subpoena is a process to cause a witness to appear and give testimony in a legal proceeding. A subpoena duces
tecum is a process by which the court commands a witness to produce a document or record that is pertinent to the
issues of a pending case, generally for use in trial preparation.

A subpoena does not in and of itself represent a legal compulsion to release information. Subpoenas are issued
routinely by a clerk of the court and represent only a “command to appear.” It is the psychiatrist's responsibility to
protect the confidentiality of the patient by making certain there is an appropriately authorized release of
information. A subpoena, by itself, does not represent an appropriate release, for the court has not studied or ruled
on the confidentiality of the information involved. Upon receipt of a subpoena, however, the psychiatrist is
compelled to make a response.

If a subpoena is accompanied by an appropriately signed consent form and the psychiatrist is satisfied that the
authorization is informed and voluntary, he or she is free to testify at the proceedings and provide any documents
requested. If there is no consent form attached, the psychiatrist should contact the patient or the patient's attorney to
determine if the patient will consent. If the patient does not wish to consent, the psychiatrist has two choices. The
first is to retain an attorney or cooperate with the patient's attorney to file a motion to quash the subpoena on the
grounds that the communication involved is privileged; in most cases, the ruling on this motion by the court will
settle the issue of whether the psychiatrist must testify and turn over the records. The psychiatrist's second option is
to attend the deposition or trial on the date specified, bringing any documents called for, but, when first asked about
the patient, assert the physician-patient privilege and refuse to answer any further questions until the court rules on
whether he or she has to testify.

Deposition and Testimony

Psychiatrists are occasionally called to testify at depositions or trials about the health and emotional status of present
or former patients. In any such case, the psychiatrist is obligated to assert any rights the patient has with regard to
the privileged nature of their relationship. There is generally no difference between a deposition and a trial in the
nature of the privilege or of the psychiatrist's duty, although at a trial a judge will be present to rule immediately on
questions regarding the scope of privilege.

If the privilege has been waived by the patient or the patient's legally appointed guardian, the psychiatrist is free to
testify and to provide documents concerning his or her testimony. However, the psychiatrist retains an ethical
obligation to disclose only information that is actually relevant to the purpose at hand. If the information requested
seems far afield, the psychiatrist should question the need for disclosing it until a judge has had the opportunity to
rule on its necessity. At a trial, the judge will generally make such a ruling at the time the issue is raised; at a
deposition, it may be necessary for the psychiatrist to refuse to testify on this matter until a judge has had an
opportunity to rule.

Psychiatrists may also be asked for purposes of the court to examine and evaluate individuals with whom they do
not have treatment relationships. Depositions and testimony in such cases are not covered by physician-patient
privilege. In these instances, it is essential that before commencing the psychiatrist inform the individual of the
nature and purpose of the evaluation and of the limits to confidentiality.

                                         Guidelines on Confidentiality (8 of 9)

                  The American Psychiatric Association • 1400 K Street NW • Washington, D.C. 20005
                       Telephone: (888) 357-7924 • Fax: (202) 682-6850 • Email:
                                                                                 APA Document Reference No. 870001

Reporting Statutes

The responsibility that psychiatrists have to keep their patients' confidences may come into conflict with other
responsibilities they have to the community at large. Over the years, society has decided that it has an overriding
interest in protecting certain needs of the public, even at the risk of disclosing some information patients might wish
to be kept confidential. The prototype of such laws is the reporting of contagious diseases, beginning over a century
ago. More recently, statutes have been enacted requiring that psychiatrists and other physicians report cases of actual
and suspected child abuse to appropriate public authorities, including cases of child sexual abuse. Now a growing
number of states have begun to require the reporting of abuse of the elderly.

The intent of these laws is to protect the public from future harm. Except for child abuse, there is generally no legal
requirement to report past instances of crime or misdeeds. Learning that a patient has committed a serious crime in
the past, however, presents many difficulties in the therapeutic process. Because of these complexities, consultation
with a senior colleague and a knowledgeable attorney is well advised in such cases.

The Duty to Protect—the Tarasoff Doctrine

For psychiatrists, probably the most perplexing area of conflict between their duties to their patients and to society
involves what has come to be called the Tarasoff doctrine. Following a California case decided in 1974, this doctrine
has gradually evolved to the point where psychiatrists today may be held responsible for protecting parties whom
their patients seriously threaten, particularly when these other persons have been specifically identified. Where the
threat is imminent, the patient may need to be hospitalized, either voluntarily or by commitment. When this is not
sufficient to remove eventual danger to the third party, the psychiatrist may still be held responsible for taking steps
to protect the third party, although the exact nature and limits of such responsibility are still not clear. Under the
provisions of recently enacted statutes in California and other states, however, notification of the threatened
individual and the calling of a police department are sufficient to provide immunity from liability to the psychiatrist,
even if the threatened harm occurs. The ethical, legal, and professional issues involved in the treatment of such
potentially dangerous patients are among the most difficult ones faced by the practicing psychiatrist and generally
warrant consideration of both professional and legal consultation.

                                        Guidelines on Confidentiality (9 of 9)

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Description: Confidentiality Document document sample