The Black Hole of Confidentiality

Posted by Ivan Perkins, JD

October 9, 2017 at 11:36 AM

Imagine that you see a psychiatrist for many years. During your sessions, you lower inhibitions and open mental floodgates. You explore how you really feel about people in your life. You delve into things you find shocking, embarrassing, and disturbing.

You end treatment. Eight years pass. Suddenly, you find that your former psychiatrist is publishing a book—and much of it presents your intimate case history! The book does not name you, but it is loaded with details, including your profession, the university where you work, and other telling clues. These make it clear to people in your social and professional circles that you are the client.

The book broadcasts your secrets, obsessions, and fantasies verbatim, and diagnoses your mental illnesses. Your friends, colleagues, and students read it with prurient interest. Your professional standing and livelihood are threatened. Humiliated, you retreat into isolation.

This was a real case, Doe v. Roe, brought by a client in New York during the 1970s. (Doe v. Roe, 93 Misc.2d 201 (N.Y. Sup. Ct. 1977).) There was established legal theory in New York at the time on this issue, but the judge had no problem finding a new cause of action based upon scattered precedents, medical principles dating from the time of Hippocrates, and his own palpable outrage. The judge accepted that the defendants thought they had concealed the plaintiff’s identity—which barred him from ordering punitive damages—and the judge called their actions “merely stupid.”

The defendants’ hopes of publishing an influential book were dashed. The judge awarded monetary damages to the plaintiff, and ordered a permanent injunction against any further circulation of the book beyond the 220 copies already sold.

Obviously, protecting confidentiality in psychotherapy is a big deal. The law certainly views it as such.

It’s time for a space metaphor.

In astrophysics, a black hole is a region with overwhelming gravity. Once an object passes the black hole’s “event horizon,” it can never return to the universe outside. It will gradually accelerate towards the center, a point of infinite density. Light itself cannot escape. To a distant observer, the black hole appears as a blank circle in space. Objects, energy, and information fall in—but they never come out again.

Most clients probably hope that their therapist is something like a black hole. It is nice to imagine that words uttered in therapy remain forever contained within the therapist’s office. But this is inaccurate. For example, therapists may update insurance companies on a client’s progress, send an email to the wrong person, or get hacked.

The law itself may require disclosures. Over the last fifty years, state laws have increasingly required therapists to break confidentiality and tell other people about dangerous and worrisome situations.

Every state now requires therapists to report suspected child abuse. Therapists must protect actively suicidal clients, which can include involving the client’s family or friends, or even calling a crisis team. If a therapist learns about an imminent threat of violent harm to a specific person, they may be required to warn the potential victim and take other preventive steps.

These releases of information are sort of like “Hawking radiation” coming from a black hole. Scientists used to think that nothing came out of a black hole, ever. But as Stephen Hawking showed, when particle-antiparticle pairs pop into existence just inside a black hole’s event horizon, one particle will speed toward the center, as the other escapes into the outside universe. In this way, black holes emit some mass and energy, though this is often dwarfed by the stars, planets, and space debris they swallow.

Likewise, therapists sometimes have to disclose precise bits of information about their clients. Also, there are some situations where disclosures are inevitable; by sitting in your waiting room, clients disclose the fact that they are seeing a therapist to each other.

In all of these areas, the law is growing increasingly stringent and precise. Some laws seek to protect clients’ privacy, while others dictate that privacy must give way to other goals, such as preventing abuse, suicide, and murder. Confidentiality and access to records are among the most contentious and litigated issues in psychotherapy.

This is why we paid close attention to confidentiality when we designed our system of three law and ethics CEUs for therapists and social workers. CEU No. 2, Confidentiality and Client Access to Records, focuses on both aspects of confidentiality: the duties to protect privacy in various situations, and the laws mandating or allowing an occasional release of therapeutic information. (This CEU comes in two versions: one for “covered entities” under HIPAA, and one for the more-fortunate among you!)

Happily, you do not need to be a quantum physicist or Stephen Hawking to master the laws of psychotherapeutic confidentiality. You just need to take CEU No. 2, incorporate the rules into your practice, and use our model forms.

For an overview of your confidentiality rules, see the graphic below. It shows all the situations where you must or may break confidentiality and emit some client information. (This version is for California therapists who are covered by HIPAA.)

 

Infographic #1b (HIPAA-Cal. Conf. Excepts)

 

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Topics: Professional Development