Jennifer Bernstein, JD, MPH
Senior Attorney, The Network for Public Health Law – Mid-States Region
University of Michigan School of Public Health
Patient Privacy in Mental Health: Balancing Rights while Trying to Ensure Appropriate Treatment
Privacy rights and protection of health information take on special meaning in mental health care, whether because of the stigma associated with mental health conditions, or issues of family dynamics, or a variety of other reasons. The on-going debate takes on increased importance in light of the tragedy this past weekend at the University of California at Santa Barbara.
Before we explore particular instances of how patient privacy has affected people with mood disorders and their families, we’ve asked attorney Jennifer Bernstein to provide an overview of privacy in mental health care.
What is HIPAA?
The Health Insurance Portability and Accountability Act, commonly referred to as HIPAA, provides consumers with privacy rights and protections for their health information, including mental health information. Though enacted in 1996, HIPAA’s Privacy Rule governing individually identifiable health information took effect in 2001. The Privacy Rule seeks to strike a balance between protecting patient’s privacy by safeguarding sensitive health information and allowing for the sharing of a patient’s health information to ensure the best treatment and the health and safety of the patient or others. The following information applies generally to adult patients.
What does HIPAA mean for patients with mental health disorders?
Normally you have the right to inspect, review, and receive copies of your medical records, with the exception of psychotherapy notes. HIPAA defines psychotherapy notes as notes recorded by a health care provider who is a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint, or family counseling session. Such notes are kept separate from the patient’s medical and billing records and cannot be requested for inspection or review by the patient. The Privacy Rule also greatly limits a provider from disclosing psychotherapy notes to others without a patient’s authorization. This includes disclosures to other health care providers or family members.
This does not mean that information about your mental health condition cannot be shared with other health care providers, insurance companies, or family members. The restrictions on psychotherapy notes do not exclude the sharing of information about medication prescription and monitoring, counseling session start and stop times, the types and frequencies of treatments, results of clinical tests, summaries of diagnosis, functional status, treatment plan, symptoms, prognosis, and progress to date.
What about disclosure of information to family members or other persons?
HIPAA treats the disclosure of health information to family members the same, regardless of the health condition of the patient. HIPAA allows a health provider to share or discuss a patient’s mental health information with family members as long as the patient does not object to the sharing or disclosure. If a patient objects, the health care provider is under a legal and ethical duty to comply with the wishes of the patient.
Even with authorization from the patient, a health care provider may only share or discuss information to the extent that family members need to know to assist in the patient’s care or payment for care, unless specifically authorized by the patient to provide additional information. For example, a therapist may discuss a patient’s medication regime to ensure compliance with treatment for schizophrenia, but the therapist would not be authorized to discuss private conversations between the therapist and the patient related to the patient’s symptoms, such as visual or auditory hallucinations experienced by the patient.
The next post in this series discusses some specific concerns that family members of patients with mental illness often have concerning HIPAA and gaining access to their loved one’s health information.
- What experience, negative or positive, have you had in dealing with HIPAA while obtaining mental health care?
- What do you think needs to change about the HIPAA law?
- How do you think the balance should be struck between patient rights and families seeking to ensure prompt and appropriate treatment?