In President Clinton's January 1999 State of the Union address, he appeared to support concerns about privacy in a heartfelt statement: “As more of our medical records are stored electronically, the threats to our privacy increase. Because Congress has given me the authority to act, if it does not do so by August, one way or another, we will protect the privacy of medical records this year.”
Why is that statement not reassuring? Perhaps because the President's endorsement of privacy rings hollow in light of what will happen in August if no bill is passed. The Health Insurance Portability and Accountability Act of 1996 mandated a comprehensive policy on confidentiality. If a policy addressing confidentiality is not passed by Congress before July 31 of this year, Health and Human Services rules would become law by default. Under this policy, researchers, fraud investigators, and law enforcement officials could access patients' records at will without informed consent or a release from the patient.
While such an eventuality may sound alarming and even unbelievable, it is unfortunately in keeping with a general trend to run roughshod over privacy. Lawrence Gostin, a bioethicist who chairs the Task Force on Health Information Privacy of the Centers for Disease Control, believes that privacy must be re-evaluated in light of what is best for society as a whole. He is part of a movement that views accessibility as having paramount importance for the societal good. Would meaningful privacy exist under such proposals? “The damage to health care fraud prevention, cost savings, clinical research, and utilization review,” says Gostin, “would be too devastating to permit patients to have the ultimate say over the release of their medical records.” The government of Iceland recently voted to turn over the medical records of all its citizens to a private company that promised computerized accessibility.
Other experts argue that privacy of records jeopardizes patient safety if, for example, an accident victim requires emergency medical care. Computerized access to medical records may save lives. While this argument may sound good in the abstract, it becomes highly disconcerting when one learns that a teenager got into emergency room records in a Florida hospital and printed out information about patients who had visited that particular emergency department. She made prank calls telling each of them that a blood test showed they had been diagnosed with HIV. One patient became suicidal when hearing the news.
If a clinician is treating patients today who are using insurance or managed care to pay, there can be no guarantee that they will have any say regarding access to records. Everything that goes into electronic databanks is outside the patient's and the provider's control and can be accessed by a number of people who may misuse that information. While the identity of patients may be “protected” by the use of codes, experience suggests that such efforts are far from foolproof. Recently, the U.S. government's Data Encryption Standard, believed to be unbreakable, was cracked in fifty-six hours by hackers.
The Clinton administration has supported a unique health identifier, a mandatory cradle-to-grave patient identification number. While this proposal was defeated in Congress, it will undoubtedly re-emerge, and we must be continually vigilant to see that patient privacy is protected.
The American's Joint Committee on Confidentiality has been increasingly alarmed about developments in the privacy arena. Even when patients give informed consent for the release of information from their psychotherapist or psychoanalyst, the consent is often not truly voluntary. For example, Monica Lewinsky's two therapists testified in the Starr investigation, even though no information in either interview was remotely relevant to the investigation. One can hardly imagine that Lewinsky's waiver of her privilege was truly voluntary when she was under threat of grand jury indictment.
Psychoanalytic and psychotherapeutic treatments certainly have a special set of concerns about confidentiality that are somewhat different from those involving other health-care providers. Because of psychoanalysis's emphasis on freedom of thought and free expression of all associations in analysis, confidentiality is an inviolable precondition for the treatment. The Joint Committee on Confidentiality, which I chair, has endorsed legislative involvement by our members to support the broader concerns of all health-care providers about privacy while also working toward more specific protections for psychotherapy and psychoanalysis.
Prior to the landmark Jaffee v. Redmond decision by the Supreme Court, there had been no federal recognition of privilege for the psychotherapist-patient relationship, even though communications between penitent and priest and lawyer and client were duly recognized. The Supreme Court concluded in Jaffee that “reason and experience” led to the conclusion that protecting the confidentiality of communications between therapist and patient serves both the individual's private interests and the public good by fostering the provision of appropriate treatment.
The ruling in Jaffee applied only to whether a patient or the patient's therapist could be compelled to disclose the content of therapy sessions in the course of discovery or at trial in a civil proceeding. Since Jaffee, the lower federal courts have begun to consider application of the privilege in other factual contexts, such as criminal cases. It remains to be seen what its final scope will be. The implications of Jaffee v. Redmond could also be eradicated by legislation in Congress. Indeed, privacy will ultimately survive or be destroyed in the legislative arena.
The Joint Committee on Confidentiality has been hard at work preparing a position statement on confidentiality for the APsaA. That statement is now making the rounds of committees for further feedback. In the mean-time, it is imperative that all members become actively involved in contacting their representatives in Congress and informing them of the perils to privacy inherent in the current groundswell to develop health identifier numbers and allow law enforcement officials and others full access to records without patient consent.
We must also inform the public about the threat to privacy. Many citizens are unaware of the implications of electronic databanks. Confidentiality is important not only as the right of a citizen but also as a reflection of the quality of our democracy. Practicing psychoanalysis under an autocratic technocracy is a chilling prospect.
Glen O. Gabbard, M.D., chairs the Joint Committee on Confidentiality.