Chapter 7
Confidentiality of Mental
Health Information: Ethical, Legal,
and Policy Issues

Chapter Overview

Ethical Issues About Confidentiality

Values Underlying Confidentiality

Research on Confidentiality and Mental Health Treatment

Current State of Confidentiality Law

Federal Confidentiality Laws

Potential Problems With the Current Legal Framework




Research on Confidentiality and Mental Health Treatment

The values that underlie confidentiality in large part assume that people will be less likely to seek needed help (Corcoran & Winsalde, 1994) and, once in treatment, less likely to disclose sensitive information about themselves if they believe that the information may be disseminated outside the treatment relationship. Available research supports these assumptions. For example, in one study, individuals receiving psychotherapy placed a high value on the importance of confidentiality to the therapeutic relationship, as did a matched group of hospital employees (McGuire et al., 1985). Parents of children in psychotherapy reported that confidentiality was an important issue that needed to be discussed in the context of informed consent processes (Jensen et al., 1991). Another study suggests that concerns regarding stigma and confidentiality were factors in decisions by people with dual diagnoses (psychiatric illness and substance abuse disorder) to seek treatment from the community mental health system (Howland, 1995). Yet another study reports that the decision of therapists to seek or not seek treatment was influenced, among other things, by concerns regarding confidentiality (Norman & Rosvall, 1994). In the context of drug testing, the degree to which confidentiality was protected influenced the attitudes of those who had been ordered into drug testing regarding the seeking of employment (Sujak et al., 1995).

Subjects who were told that confidentiality was absolute reported that they were more willing to disclose information about themselves than individuals who were told that confidentiality was limited (Nowell & Spruill, 1993). Confidentiality, of course, is not absolute, and so the impact on individuals in treatment of various limits on confidentiality is an important question. This was explored in one of the few confidentiality studies to use as research subjects people actually in treatment (rather than students simulating the role of patient). Taube and Elwork (1990) found that patient self-disclosure was influenced in large measure by how informed the patient was about confidentiality law and by how consequential to the patient the legal limits on confidentiality were in his or her particular circumstances. Roback and Shelton (1995), noting that some studies suggested that perceived limitations on confidentiality did not deter patients from self-disclosing, also noted that as persons perceived themselves at risk for serious sociolegal consequences, being informed that certain disclosures would result in mandatory reporting did limit self-disclosing.

Finally, one of the most recent studies of this subject, which used clients and college students as subjects for the research, concluded that subjects were less candid with a therapist if they understood that information regarding their treatment was to be disclosed to a third party for case utilization review (Kremer & Gesten, 1998). As a result, another observer concluded that “psychiatric treatment is often paid for by patients out-of-pocket, precisely to avoid creating a record over which a patient has little or no control” (Alpert, 1998, p. 89).

Surveys of the general public also indicate that privacy of health care information is a major concern. For example, 27 percent of the respondents to a 1993 Harris survey believed that health care information about them had been improperly disclosed, 11 percent previously had decided to not file an insurance claim because of privacy concerns, and 7 percent had decided to forego care because of concern that information that would be generated in care might harm their employment possibilities or other opportunities (Louis Harris & Associates, 1993).

These findings suggest a dilemma for individuals who may wish to pursue treatment for mental illness and for treatment providers. All available data indicate that confidentiality of health care information is a significant concern for individuals. The evidence also indicates that people may become less willing to make disclosures during treatment if they know that information will be disseminated beyond the treatment relationship. At the same time, the caregiver is ethically obligated to disclose to the client the limits on confidentiality: A failure to reveal the limits of confidentiality seriously threatens the therapeutic relationship and the provider’s credibility. As a result, treatment may be compromised, and the patient may terminate treatment prematurely (Kremer & Gesten, 1998).

In short, available research supports the conclusion that strong confidentiality laws are critical in creating assurances for individuals seeking mental health treatment and thereby increasing willingness to participate in treatment to the degree necessary to achieve successful outcomes. However, the present legal framework does not provide strong, consistent protection of confidentiality in many instances.

It is important to note that additional factors may contribute to concern that confidentiality may be breached and, in turn, an unwillingness on the part of consumers to disclose or share information. In many instances, these factors cannot be addressed through stronger legal protections alone. In given clinical settings, for example, concern may stem from the existence of crowded or open facilities, frequent changes in clinical staff, language differences, cultural considerations, and other constraints that would limit establishing a trusting therapeutic relationship. In addition, individuals may not wish to disclose information regarding “pre-existing conditions” for fear it may result in a loss of insurance coverage as well as privacy.

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