Confidentiality is an ethical and legal principle, designed to protect both the patient and the treating physician.
- Confidentiality is a right of an individual not to have communications that were imparted in confidence revealed to third parties.
- Privilege is an legal concept under the umbrella of confidentiality. Privilege is a right, held by a patient, to prevent the doctor/therapist from revealing information in judicial proceedings. If patient waives the privilege, the doctor/therapist has no basis to refuse to testify.
Physician's ethical obligation to protect confidentiality is superceded by duty to warn and duty to protect; this is covered by various state-specific iterations of the Tarasoff Law. Thus, if imminent specific homicidal threat, suicidal plan, or evidence of sexual, physical abuse become known, the clinician must breach confidentiality. Further, detailed federal (HIPAA) and state laws govern release of health information to other doctors, parents, and insurance companies.
In a situation when the psychiatrist is performing a forensic or expert evaluation, the doctor-patient confidentiality does not apply. As a consultant for a third party, the psychiatrist is not the patient's doctor. For example, an insurance company may contract a psychiatrist to evaluate a patient who submitted an injury claim. The psychiatrist should tell the patient, that the evaluation was requested by a third party that will receive a report of the evaluation.
Confidentiality in Court
The treating doctor may be subpoenaed to appear in court or produce certain documents pertaining to a legal case.
Some of the basic principles include:
- Protecting confidentiality; the patient, or, in a case of a minor, the parent, must consent to the release of factual information related to the patient's care
- If it is unclear who holds that privilege, as may be the case in divorce or custody proceedings, the psychiatrist should wait for a court order, or other authorization.
- the court may mandate the disclosure of confidential or privileged communication, such as when a client puts his or her own mental condition at issue in a lawsuit, or in commitment proceedings, will contests, child custody cases, and criminal matters.
- Stick to the facts; it is inappropriate for the treating doctor to offer anything other than the facts of the case (chief complaint, diagnosis, treatment) when subpoenaed to produce documents or to testify.
- Opinions, in contrast to "facts of the case," should only be offered by expert witnesses, who must not be the treating doctors of the parties involved. Expert witness is an individual recognized by the court as being qualified by knowledge, skill, or experience to provide opinion about evidence or facts of the case.
Confidentiality in Child and Adolescent Psychiatry
Confidentiality becomes even more challenging in child and adolescent psychiatry. Parents and children should be informed regarding the extent and the limitations of the confidentiality at the outset:
- Adolescents may not know about doctor's duty to report significant suicidality and homicidality, or that findings and diagnoses are often reported to parents, schools (for accommodations and special education), and to insurance companies.
- Parents may be surprised to learn that they are not privy to certain information discoverable by the physician, which can include, depending on state laws, information about substance abuse and treatment, sexuality and related behaviors, as well as pregnancy and its termination.
- Federal HIPAA laws and state laws about protecting personal health information figure into the legal aspects of confidentiality. Read about it here.