Edition: U.S. / Global

A LOSS OF CONFIDENCE: A special report.;Questions of Privacy Roil Arena of Psychotherapy

Published: May 22, 1996

Dr. Arnold Holzman, a psychologist in Hamden, Conn., thought he was making progress with his patient, an upper-level manager in his 50's, who came into therapy only after his wife threatened to leave him if he did not learn to control his temper.

It had taken some time before the man trusted Dr. Holzman enough to talk about his anger, depression and the childhood abuse he had suffered. So Dr. Holzman worried what would happen to that trust last year, when he told the patient that the managed care company paying for the treatment was coming to inspect his files.

He was obviously uncomfortable about it," said Dr. Holzman, part of a 17-person group practice, CPG Behavioral Health Resources, with seven offices in Connecticut. "He wanted to know why they wanted his file, why I had to let them see it and what they would do with it. The audit occurred, they rifled through my files, made copies and went. But it changed things. He became more concerned about what he was saying, and whether I would have to write it down. A few visits later, he stopped coming." Dr. Holzman is convinced that the man left because his privacy had been compromised.

Since the earliest days of psychotherapy, confidentiality has been seen as one of the fundamentals of treatment, a prerequisite for giving patients the freedom to explore their innermost feelings and fantasies. Indeed, many therapists say, confidentiality is to therapy what a sterile field is to surgery -- a basic requirement of good practice.

But even as the use of therapy is expanding, with more kinds of professionals seeing more patients, the confidentiality of psychotherapy is being eroded by a variety of outside forces, including the spread of managed care, the computerization of medical records, and the use of therapist's notes and records in law enforcement. Within the next month, the United States Supreme Court will decide how much protection therapy records should have from courtroom disclosure.

"It used to be that there was the patient and the therapist, and maybe, in the background, an insurer who covered the cost of treatment with very few questions asked," said Russ Newman, the American Psychological Association's executive director for professional practice. "Now there are more parties vested with an interest in the treatment. There are law-enforcement authorities, who want to know if there's child abuse, or if the patient is a threat to himself or others. There are the utilization reviewers, and the managed care companies, asking for treatment plans, symptoms, sometimes the therapists' notes. If you add these things up, it amounts to much more pressure on therapists to disclose information."

For some patients, this has led to such nightmare scenarios as discovering that their bosses and co-workers had learned the details of their counseling, that the computerized records regarding a previous psychiatric hospitalization were available to all their doctors, or -- most common -- that their application for insurance was rejected simply because they had been in therapy.

The confidentiality of therapy has always been challenged by those claiming that other social interests, like solving a crime, or preventing abuse, outweigh the patient's interest in privacy. Indeed, therapists generally are required to breach confidentiality if they suspect child abuse or believe the patient is likely to injure a specific victim. But the changing health system has vastly increased the pressure to open records.

"The transition to managed care and computerized records was a huge wave that broke over us, an enormous change that happened without thinking through the effects on confidentiality," Mr. Newman said. "And we really haven't caught up with it yet, or figured out mechanisms for dealing with the problems."

Open Secrets What Was Private Becomes Public

The disclosure of private therapy records happens in many different contexts:

*The Harvard Community Health Plan, a Boston H.M.O., last year acknowledged that it was routinely entering detailed notes of psychotherapy sessions into its computer records, which were available to clinical employees who had nothing to do with the patient's mental-health care. The plan subsequently segregated mental-health records from general medical records, and limited access to them.

*After an Illinois policewoman fatally shot a man in a fight, she got six months of counseling from a social worker employed by the town where she worked. When the man's family sued the town for wrongful death, their lawyers wanted to see the social worker's records. She said they were protected by a legal privilege of confidentiality, but the judge disagreed. The United States Supreme Court, which heard the appeal in March, is expected to decide this spring whether there should be a Federal privilege of confidentiality for psychiatrists, psychologists and social workers. While every state currently recognizes some privilege, the states vary widely in how broadly it applies.

*A 1993 Maryland law authorized a state Health Care Access and Cost Commission to create a database on every transaction between a doctor and patient. As originally enacted, even those who paid out of pocket were to be included, and while the patient's name was not reported, his birth date, gender, race and ZIP code, was to be. But to help protect privacy, the commission has agreed to include only those medical visits covered by insurance, and to include only the year of birth, not the date.