Stressing that confidentiality is to psychiatry as asepsis is to surgery, Dr. Beigler discusses the problems engendered by the fact that a psychoanalyst, by relating to the whole person of the patient and therefore that patient's contacts with the outside world, becomes a repository of information valuable to third parties. As a result, we are confronted with two antithetical interests of society, each of which is valid. Society requires a circumstance enabling optimal psychiatric and psychoanalytic treatments of its citizens and yet also has a realistic interest in having access to the information disclosed in so open a treatment situation. A further complication is that there is still a stigma associated with mental health problems and treatment. The paper deals with the definition of problems in four specific areas, for which reasonable compromises are offered as bases of reference from which the next step in progressive solutions can be made.
I. The most common area in which such complex problems are confronted is in the field of health insurance. Because of the stigma, many government employees, corporate executives, politicians and teachers dare not use paid-for insurance for psychotherapy and psychoanalysis lest careers be jeopardized. One solution to this problem is to by-pass the employer's personnel office by routing insurance claims directly to the medical director's office of the insurance carrier. Large corporations have already demonstrated the feasibility of such a tactic.
Another health-insurance problem has to do with cost-accountability. Breaches of confidentiality by the carriers are rationalized on the basis of requiring detailed information in order to process claims. The recent history of the Federal Employees Health Benefit Plan administered by the Washington, DC, Blue Cross-Blue Shield illustrates some of the complexities and their progressive solutions. On July 1, 1976, the Mental and Nervous Disease Utilization Cost Study (MANDUCS) form was introduced as a means of monitoring the use of psychiatric and psychoanalytic insurance benefits. A year later, the form was discontinued after the vigorous protests of patients and physicians who objected to the extent and sensitivity of the information required. A reasonable compromise was reached after months of negotiations between a task-force from the American Psychiatric Association and the Washington “Blues”, leveraged by the threat of a class action suit organized by the Mental Health Law Project on behalf of patients and physicians.
At present, 90% of FEP psychiatric claims will be processed on a 5% random sampling of a standard medical-claims form (rather than by a detailed special psychiatric-claims form). This is considerable progress, but the problem of monitoring the remaining 10%, which includes all long-term cases of psychotherapy and psychoanalysis, must still be dealt with. One possible solution is to establish a separate peer-review organization that will assess non-identifiable reports, thus protecting confidentiality and yet
providing cost-accountability. A pilot study incorporating such a plan has recently been established by the Peer Review Committee of the American Psychiatric Association and the Office of the Civilian Health and Medical Plan for the Uniformed Services (OCHAMPUS). Should this prove successful, further steps can be made to monitor psychoanalytic cases. Thus a prototype for managing the complexities of insurance coverage for psychoanalysis can be evolved.
II. A second area of vulnerability for psychiatric and psychoanalytic patients is the matter of litigation, as for personal injury, insurance claims and divorce. A patient in psychotherapy or psychoanalysis is especially vulnerable to the discovery process. Some patients cannot avail themselves of their rights to legal redress lest sensitive information, irrelevant to the issues in contest, be disclosed. The solutions to these problems entail legislation defining “pain and suffering” and “mental cruelty” as not constituting bringing “mental condition” into issue and thereby waiving privilege. Some states already have such legislation. Another tactic is to use an “examining psychiatrist” appointed by the court, thereby avoiding testimony by the treating psychiatrist.
III. A third area of problems has to do with an increasing trend to use psychiatrists as agents of social control. Psychiatric records have been used in the assessment of driver's license applicants, drug abusers, gun-permit applicants and child abusers. There is also a peculiar tendency on the part of some psychiatrists to allow themselves to be used as agents of the state, as for example, following the California Tarasoff decision, which has been interpreted by some to constitute a duty to warn intended victims presumably threatened by psychiatric patients. Actually, the Tarasoff decision applies only in California, there is no “duty to warn” and is the result of what legal scholars consider an aberrant interpretation of an evidence statute idiosyncratic to California. The use of psychiatrists as policemen is counter-productive not only clinically, but also democratically. The only solution is vigorous corrective legislation in California, and the opposition to “duty-to-warn” legislation introduced in other states.
IV. The last area Dr. Beigler discusses deals with the confidentiality problems inherent in the proliferation of data banks. The vulnerability of computer systems to criminal manipulation is by now well-known. The unnecessary accumulation and unauthorized dissemination of sensitive information is well-documented. One potential answer is the establishment of “ethical computer centers.” Another tactic is to legislate informed consent as a prerequisite to information dissemination. Also, consent forms must be modified to allow time-limited authorization, revokability and incident-specificity. Similarly, patient-access to records would minimize errors and help protect privacy.
In general, the paper outlines specific confidentiality problems confronting our profession and advocates a concerted response via effective negotiation, litigation and legislation. Our participation can help shape the law in areas of our interest to the advantage of our patients, our profession and to society.