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Legislation’s privacy exceptions for psychiatric patients are concerning


 

Like many of you, I’m currently in New York City for 5 days of psychiatry and psychiatrists, 24/7. I’m hoping there will be a bagel with lox in there somewhere as well.

I wanted to talk about one section of Rep. Tim Murphy’s (R-Pa.) proposed legislation, H.R. 3717, the Helping Families in Mental Health Crisis Act. If you’re not familiar with it, the legislation intends to overhaul a broken mental health system in the United States. One component of the bill, Section 301 located on page 44, deals with modifying HIPAA such that mental health providers can speak with caregivers and family members. Rep. Murphy – who is also a psychologist – has noted in his television appearance and in public testimony that HIPAA is misinterpreted such that families are sometimes told they may not provide historical information about the patient. HIPAA does not actually prevent a mental health professional from listening to anyone’s free speech, but there seem to be times when the involved parties believe this is the case.

In addition, Rep. Murphy noted that HIPAA prevents clinicians from releasing information to caretakers that might help in providing for outpatient care – specifically for releasing medication information and follow-up appointments to those who may be responsible for helping patients negotiate these crucial items.

The proposed legislation reads:

"Caregiver Access to Information: ...to an individual with a serious mental illness who does not provide consent for the disclosure of protected health information to a caregiver of such individual, the caregiver shall be treated by a covered entity as a personal representative ... when the provider furnishing services to the individual reasonably believes it is necessary for protected health information of the individual to be made available to the caregiver in order to protect the health, safety, or welfare of such individuals or the safety of one or more other individuals."

The bill goes on to define "caregiver" as an immediate family member, an individual who assumes primary responsibility for providing for the patient’s basic needs, or a personal representative as determined by law. I think we all agree that collaboration and communication are essential to the care of our patients, and so I applaud these efforts. I worry, however, about the unintended consequences and what roads this might lead us down.

Long before we had HIPAA, we had requirements for patient confidentiality. I, like Rep. Murphy, believe that HIPAA gets distorted. "We need to let your family know your discharge medications and follow-up appointments," is not often met with resistance, but if it is, shouldn’t that be respected? What if patients have valid reasons for not wanting family to know their medications? What if they feel their family is too intrusive, or is part of the problem? Such legislation might suggest that the family is always right and the patient is always wrong.

While the intent (as I’ve understood it from Rep. Murphy’s speeches) is to allow hospitals to tell families, "Yes, your loved [one] has been admitted to our inpatient unit," or to allow well-negotiated follow-up to prevent relapse, might such legislation lead patients to believe that the content of their discussions with mental health professionals can be relayed to others against their will? Might it serve as one more reason for a troubled individual to avoid care?

From a psychiatrist’s point of view, I might be concerned that I would agree with a patient that information should not be released to family, and nothing about this law would then force me to release it. But would family members feel the law says otherwise? Will they contend, "My family member is mentally ill so HIPAA does not apply, and you must release information to me?" While any given psychiatrist might choose not to release information on any given patient, I wonder if this might be setting us up to be at odds with families, and that would not be a good thing. Much as I’m no fan of HIPAA for many reasons, people do understand the concept that confidentiality is required by law. Perhaps I’m reading too much into this?

Finally, we all agree that eliminating stigma is a good thing when it comes to facilitating voluntary care for those who might need it. But I wonder if we can say that people with mental illnesses are just like everyone else, that this is a medical condition just like other conditions, but for this select group of people they lose their right to privacy, much as children have no right to medical privacy. Might that add to the stigma of mental illness?

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