Some 30 years ago, I was building a psychiatric hospital in central Pennsylvania and we discussed the possibility of starting-up the new facility’s operation with all electronic records. It was the early days of computer use but it seemed like a good idea at the time. Ultimately, we decided against the plan because we couldn’t find a technical mechanism to guarantee the security of patient records against the threat of unauthorized access.
That was a long time ago.
The truth is that not much has changed in the last three decades regarding computer security, except for one thing: Our society seems to have decided that open health records are more important than confidentiality.
As a society, we not only keep our records electronically, but we increasingly are making those records available to anybody with a password. There are real advantages to that kind of system for cardiac patients in crisis. But, making psychological records available in such a system would scare the hell out of me; it would be extraordinarily dangerous and fraught with unintended consequences.
I recently became aware of a story in the Minneapolis Star that really raised my fear level. According to the Star, the Minnesota legislature is about to pass legislation requiring “that all health care providers use an “interoperable” electronic health care record (EHR), allowing all doctors to view every other doctor’s notes….” Reportedly, that would include psychotherapy records. The author, Peter A Zelles, Ph.D., writes:
“Perhaps no other form of medical treatment is more based on privacy and confidentiality than psychotherapy. Patients come to speak the unspeakable. Much like the sacrament of confession, psychotherapy relies on a closed door and a belief that what is spoken stays behind that door. It’s why we don’t practice psychotherapy in public settings. Once notes are posted, any suggestion that our treatment is private is untrue.”
Zelles, a psychologist practicing in St. Paul, Minn., accurately observes that the very wealthy will be able to opt out of the system by paying cash to providers who may be able to opt out of the electronic records requirement by also opting out of the insurance system, effectively creating a two-tiered system of treatment and confidentiality.
Under such a system, for those who use their health insurance benefits, psychotherapy will no longer offer a safe place to share secret thoughts, nightmares and unpleasant dreams.
Unhealthy, potentially destructive ideas that might have died on the therapist’s couch will not be expressed and may eventually bring harm in the world.
What can a psychologist do about this situation?
We operate within a formal ethical framework and psychology’s ethical system is promulgated by The American Psychological Association. As stated in the Code of Ethics introduction, “The Ethics Code is intended to provide guidance for psychologists and standards of professional conduct that can be applied by the APA and by other bodies that choose to adopt them.”
And these ethical standards – which have largely been supported by our culture’s system of laws – clearly establish the necessity for confidentiality between psychologists and their patients. Section 4.01 of the APA Ethics Code says, “Psychologists have a primary obligation to take reasonable precautions to protect confidential information.”
But what happens when our system of jurisprudence does not support our ethical code? In their wisdom, the framers of that code made provision for such an occasion. In section 1.02, the Code addresses “Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority.”
“If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict. Under no circumstances may this standard be used to justify or defend violating human rights.”
Ultimately, therefore, we may obey a law that conflicts with our ethical code. However, if our ethical obligations represent a higher moral standard than the law, we are obligated to embrace that higher level. And, we are bound to consider a variety of sources of guidance, including our own conscience.
“In the process of making decisions regarding their professional behavior, psychologists must consider this Ethics Code in addition to applicable laws and psychology board regulations. In applying the Ethics Code to their professional work, psychologists may consider other materials and guidelines that have been adopted or endorsed by scientific and professional psychological organizations and the dictates of their own conscience, as well as consult with others within the field. If this Ethics Code establishes a higher standard of conduct than is required by law, psychologists must meet the higher ethical standard.”
All things considered, we are clearly required to engage in a complex “process” in this situation. If you believe that interoperable electronic health care records are a good idea, then nothing need be done. But, if you think as I do, that such a system is a disaster waiting to happen, if you think that such a change would violate our ethical need to maintain confidentiality, then you have an obligation to “take steps to resolve the conflict.”
In this situation, I think that psychologists in Minnesota – and anywhere this system is proposed – take up arms and fight the initiative, armed with knowledge. Legislators must be informed about the dangers inherent in harming the therapeutic relationship, which decades of research has shown to be at the heart of psychotherapy’s effectiveness.
Bit by bit, the sanctity of therapeutic confidentiality has eroded. Some-times this erosion has been for well-intentioned reasons, as in the case of laws requiring that potentially lethal violence be reported. Other times, the benefit is harder to see, such as when insurance companies require detailed therapy records before authorizing payment.
But this is different. This is the place where the assault must be stopped. To do otherwise is unethical; to do otherwise is to facilitate an end to psychotherapy as we know it.
Stephen Ragusea, Psy.D., is in private practice in Key West, Fla., and is chairman of the Ethics Advisory Committee of the Florida Psychological Association. His email is: firstname.lastname@example.org.