Confidentiality: A new warning from California
Allan Gerson, Ph.D.
Pettus v. Cole is a recent case in California that has sent shock waves through the mental health community, particularly for the forensic specialties. As this goes to press the case is still pending, so all the ramifications have yet to be felt.
Dr. Cole, a northern California psychiatrist, was asked to evaluate Mr. Pettus for a disability leave. Mr. Pettus was terminated from his job and sued. Dr. Cole obtained a standard, verbal release, explained to Mr. Pettus that the information was not confidential, and documented this in his notes. Mr. Pettus said that the doctor released information without proper authorization. The case states that the doctor violated the Confidentiality of Information Act (CMIA).
At a recent seminar several people spoke about this case, including Dr. Cole and his attorney. The attorney explained that Mr. Pettus had his own treating psychiatrist. He had no doctor-patient relationship with Dr. Cole. He received no medical services from the doctor, was not the payor, did not receive a copy of the report, and did not dispute that he had been told the information from the exam was not confidential, or that he had his own psychiatrist. HOWEVER, the court held that for the privacy act there had been a doctor-patient relationship. The attorney felt that this decision may have ramifications for workers' comp, civil and ADA cases among others.
The requirements of different types of evaluations present different issues. For example, if a disability leave is being requested, the only information that needs to be offered is whether the claimant is disabled or not. In workers' compensation much more needs to be discussed, since it has to be determined if the disability is job related or not.
So how do we protect ourselves? First, get all authorizations in writing. Get them from every patient, since one never knows if information may be requested at a later date. Don't assume that a subpoena will be enough to protect you. Be very clear with the patient about the lack of confidentiality in circumstances such as evaluations for companies, agencies or courts.
While anything in writing is a protection, a complete form specifying what may be divulged is strongly recommended. A place for a date and signature should be provided. Mention should be made regarding the length of the time during which the release will be in effect. My opinion, especially for legal cases which can go on indefinitely, is to say that it is for the duration of the case or matter being addressed.
The bottom line appears to be: err on the safe side. Get releases before you do the work. Make sure the person understands the lack of confidentiality. Be sure the release is in writing, the more complete the better. Give them a copy of the release if requested. Talk to no one without specific authorization. For example, do not talk to company nurses, utilization review people etc. without specific authorization by the patient, in writing. Do not let people in those capacities into an exam. Do not assume you have no doctor-patient relationship. The court, and the CMIA says you do. As pointed out above, the law takes precedence over standards of practice of the community.