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The Crisis of Confidentiality in the Setting of Managed Care

William F. Walsh, Ph.D., P.A.


A Rationale for Confidentiality. The covenant of confidentiality eases the wary patient into therapy. Further, it encourages the disclosure of disturbing personal information within the context of a unique alliance formed for the purpose of ameliorating psychological symptoms and guiding constructive change. Confidentiality also assures patients that private communications will remain within the envelope of the patient-therapist dyad with only a very few exceptions. As such, it frees patients from anxieties associated with disclosure under ordinary circumstances and liberates them to report intimate thoughts and feelings. Confidentiality, thus, empowers patients at a time of vulnerability and meets their need for autonomy and respect. Secure, the patient is more disposed to provide the therapist with the data needed to treat effectively.

A trusting relationship with a dependable therapist promotes relearning through imitation and identification. Moreover, insight, suggestions, and guidance are more readily accepted from a trusted and respected therapist. Gradually, the therapeutic relation becomes a template that is used in shaping healthier relations with members of the patient's family and community. With multiple psychosocial benefits, confidentiality is considered to be an essential feature of the practice of psychotherapy.

The Psychological Meaning of Confidentiality. The discovery during childhood that one's mental life is not directly known to significant others is a milestone in the development of separation and individuation. With the severing of the psychological umbilical cord, the child's autonomy expands from the control of external sensorimotor actions to the management of inner cognitive processes. The variable structure and meaning attached to personal cognitions define and add new dimensions to the self throughout the life span. The emergence and continued development of personal privacy plays a crucial role in the ceaseless formation of identity and the exercise of autonomy. The selective sharing of intimate details about the evolving self becomes a basis for social bonding. Secrets held in common create unique relationships among friends, lovers, and members of special societies.

Individuals who suspect that their private thoughts and feelings are known to others on an indiscriminate basis generally feel insecure. In the extreme, they suffer paranoid delusions. They worry ceaselessly that the control of their lives is in the hands of others. Their profound suffering demonstrates that a sense of personal privacy and integrity is necessary to normal functioning. In a more modest way, the small shock we all receive when a stranger surprises us by knowing or appearing to know something special about us also indicates the importance of personal control over private matters. Classic novels such as Huxely's Brave New World and Orwell's Nineteen Eighty Four portray the devastating effects on human vitality and initiative that follow when repressive governments or agencies eliminate personal privacy.

A Professional Standard. Continuing a time-honored tradition with roots in basic human nature, the American Psychological Association's code of ethical principals and conduct (APA, 1992) obliges practicing psychologists to respect each patient's right to privacy and confidentiality. The pragmatically minded authors of the code did not leave this lofty moral ideal to float in thin air, however. Rather, they anchored it to the practice of psychology with sturdy guidelines that direct psychologists to: 1) discuss the parameters of confidentiality, including limitations, at the outset of treatment; 2) maintain confidentiality within the existing framework of laws, rules, and professional relationships; 3) minimize intrusions on privacy; 4) maintain privacy of conventional records and databases; 5) restrict unauthorized disclosures to those permitted by law or required to serve the patient; and 6) properly conceal patient identity during consultations and didactic presentations.

Therapeutic confidentiality explicitly recognizes the patient's right to control the dissemination of communications shared during each therapeutic encounter. The scope of confidentiality includes not only communications received during actual treatment, but records kept as part of the documentation process. However, as we shall see, confidentiality is not absolute.

A Vital Key to Treatment. In psychotherapy, individuals often share secrets or components of them that they have not previously divulged. Would people undertake therapy without a guarantee of confidentiality? A line of empirical research stretching from 1970 to 1993 supports the clinical view that confidentiality is indeed essential. In a review of several studies that met rigorous methodological criteria, Roback and Shelton (1995) conclude: "... most 'potential patients' 1) assume that information divulged in psychotherapy is confidential, 2) report that they will not talk about unprotected topics, and 3) may not enter treatment when apprised of limited confidentiality."

Confidentiality is certainly not a frill. Without it, access to treatment will be blocked for many patients. Those who do enter treatment will be more guarded than usual. As a result, diagnosis and treatment will be compromised; the therapeutic alliance will not take hold.

From other research we know that psychotherapy is superior to no treatment (Hollon, 1996). Thus, individuals who avoid treatment either because of unreasonable restrictions on or a total lack of confidentiality are not likely to get better on their own. In most cases their suffering will persist with adverse affects on their productivity and happiness. Reduced access to treatment and selective disclosure during treatment are two dimensions of the crisis of confidentiality in the context of managed care.

Ethical Use of Confidentiality. By invoking confidentiality psychologists incur a moral duty to do so only in the service of legitimate ends defined in terms of the those features of the patient's and society's welfare that fall within the purview of the accepted practice of psychotherapy. Bok (1989) points out that an appeal to privacy should not be used to justify types of secrecy that "undermine and contradict the very respect for persons and human bonds that confidentiality was meant to protect." Those psychologists who would misuse confidentiality to cover malfeasance or sloppy procedures should be subject to legal and professional sanction.

Ethical education should be a regular feature of the instruction of psychologists as well as students in training to ensure that the appreciation and use of the principal of confidentiality accords with the highest professional standards. Ethical psychologists do not operate in a cocoon of self-interest.

Conventional Limits to Confidentiality. The ethical use of confidentiality also entails sensitivity to restrictions on its use. These limits grow out of the social obligations professionals have to the communities that sanction their practice. Whether or not a therapist adheres to those constraints in a specific situation involves a combined clinical and moral judgment, preferably made in consultation with independently minded colleagues, that balances the needs of the patient against those of society. Traditional parameters of confidentiality are associated with the duty to protect members of society. Hence, therapists are expected to report instances of child abuse or to take actions to safeguard the intended victim(s) of a homicidal patient. Such restrictions to confidentiality have been greeted with widespread although not unanimous acceptance on the part of practitioners, patients, and potential patients It is understood by professionals and lay people that the psychologist's dual responsibility to the health of the patient and the welfare of society must guide all decisions regarding therapeutic confidentiality.

Monetary Limits on Confidentiality. Managed care unapologetically shifts the basis for limits on confidentiality from concerns about public safety to financial issues. The need to control costs is used to rationalize an unprecedented intrusion into the patient-therapist unit that jeopardizes its stability and compromises the many health promoting functions derived from confidentiality.

Psychotherapy is unique among sanctioned health-care procedures. It differs from other forms of health care in that the patient-therapist relationship is vital to the delivery, and thus the outcome, of treatment. The relationship is the equivalent of a life-sustaining intravenous line. In the absence of confidentiality, the healing benefits of psychotherapy are lost, not only to patients, but also to the social and work groups to which they belong.

Just Between You and Me and Managed Care. Therapists who join managed care are reborn as "preferred providers." They are no longer independent practitioners who treat autonomously and report results to external sources only at the patient's request or under a compelling legal requirement. Prior to even meeting the patient, the managed care therapist has agreed to treat and report within preset guidelines. When conflicts arise between the treatment needs of the patient and the aims of the third-party, "preferred" providers could be those who know that patient advocacy may jeopardize their standing in the managed care program.

At the very least, patients need to be informed about the network provider's obligations to the managed-care program as well as the possibilities and consequences of arbitrary breaches of privacy. Once in the possession of the third-party, neither the therapist nor the patient controls the flow of clinical information. Indeed, it may become accessible to an indeterminate set of individuals, ranging from data entry clerks, whose transcription errors can become a basis for decision-making, to the employers of patients, who may be tempted to use information from employee health records to make personnel decisions. Serious breaches of confidentiality have been widely reported in the popular press.

Uninformed Consent. Psychologists know that in general clinical data should not be released to a third party without an authorization signed by the patient. A valid authorization is one that is freely given by an adequately informed patient. It is doubtful whether these conditions exist for most patients in managed care. Like a popular canned soup, managed care plans come in several varieties, none of which, however, carries a consumer warning label. Patients are often in the dark about significant operating details, including how personal health data acquired from confidential clinical records are processed and maintained. Under such circumstances, authorizations to release clinical data signed by managed care patients may not meet acceptable standards for being fully informed.

In today's Kafkaesque managed-care world, bureaucratic secrecy has superseded therapeutic confidentiality. From behind its closed doors, managed care has dictated changes in the basic structure of psychological practice.

A Dangerous Liaison. In managed care, an unbalanced tripartite arrangement has replaced the conventional patient-therapist dyad (Strupp, 1996). The third-party is hardly a third-wheel, however. It has taken over the driver's seat, but not by pushing the therapist out. Rather, with its powerful economic muscle, it has installed a form of remote control. While the therapist appears in charge, it is actually managed care that makes the fundamental decisions from the end of an "800" number. In this arrangement, information is obtained from the therapist, not as a last resort, but as a first option. The illusion of treatment as usual can be compelling. Taken in by it, trusting patients confide openly to the therapist. Even when they discover the connection between the therapist and managed care, patients desperate for relief may feel they have no other choice but to persist. Others may cover their apprehension with the assumption that the therapist will somehow protect them. Some, however, become prudently self-protective and only communicate selectively to the therapist. Others bail out. As public awareness of the intrusion of managed care spreads, many prospective patients will decline treatment.

Getting Real. Managed care portrays their reviewers as colleagues of the treating professional with a shared interest in the patient's well-being. But a treating professional does not voluntarily go to a managed-care reviewer as he or she would go to a colleague for discussion of a case. The approach is at the behest of the anonymous reviewer whose credentials and decision-making rules are usually not disclosed. The object of the approach is permission or authorization, not clinical opinion. In this situation, the treating professional is in a subordinate role, not an equal one.

Viewed economically, an authorization for treatment equates to a financial loss for the managed-care program and a corresponding, if modest, monetary gain for the treating professional. In this respect, interests of the principals are incompatible. How this financial interest and the patient's need are weighed in the decision-making formula of the reviewer is unknown. While a financial interest also exists for the treating professional, years of training in the art and science of healing carried out within an ethical decision-making framework result in judgments that, by-and-large, put the needs of the patient first.

Untested Variables. By intruding itself into the patient-therapist relationship, managed care has radically altered basic components of the practice of psychotherapy. Confidentiality and the patient-therapist dyad are integral features of the practice model whose validity has been consistently established in numerous outcome studies (Lipsey & Wilson, 1993). The new tripartite arrangement has not been examined systematically. From the viewpoint of the scientific study of mental health practice, managed-care psychotherapy is an uncontrolled experiment conducted at the risk of patients. There is simply no empirical assurance for any marketing claim that quality mental health care has been conserved across all the varieties of managed care that currently exist.

Consequences of the Loss of Confidentiality. It is very probable that as they become better informed about the impact of managed care on psychotherapy, patients will drop out of treatment and potential patients will eschew needed therapy. It is hard enough for most patients to overcome the anxiety associated with exposing intimate details about the self privately to a therapist. The thought of an anonymous third-party learning this information and using it in ways that are not under their control can be paralyzing. The sounds of their muted protests do not even appear on "subway walls or tenement halls." They are unnoticed in the administrative offices of managed care companies, where all eyes and ears are focused on the corporate bottom line.

Radical Reform Required. The treating therapist's loss of professional autonomy and the patient's loss of control over personal clinical data destroy confidentiality, rupture the therapeutic alliance, and alter the practice of psychotherapy in disturbing ways. The situation is intolerable. Reform of managed care policies and practices is urgently needed.

Public Education. Besides patient education, we must school employers who purchase managed health care plans and legislators who regulate them about the positive values of confidentiality in the context of psychotherapy. Cost control can be achieved without diluting the salutary benefits of confidentiality and the therapeutic alliance. It is not at all clear that third-party monitoring of each patient-therapist unit is essential to cost containment. What is obvious, however, is that monitoring is having an adverse impact on confidentiality which raises the very real probability of a loss of treatment effectiveness. An enlightened approach would encourage traditional outpatient treatment as an economic alternative to more costly inpatient services. The inclusion of preventive psychoeducational services in coverage provisions should also be considered.

Universal Confidentiality. To provide quality mental health care to all patients, confidentiality must be as fully available to those in managed care programs, whether in the public or the private sector, as it is to those who can afford fee-for-service. A strong confidentiality principal should not be denied patients on the basis of their ability or their employers ability to buy coverage. Psychologists need to consider whether they want to be part of an effort to create a two-tier system where confidentiality is concerned. This issue goes to the heart of ensuring quality care for all.

Return control to patients and therapists. Replace managed care review procedures with professional self-regulating structures designed to achieve specific and reasonable targets. This can be accomplished by having representatives of the various health-care organizations sit down with representatives from the business and insurance communities. If necessary, an independent review system made up of health professionals and others with no ties to the patient's managed care program or employer can be established. Restrict circulation of confidential data to members of the review panel only. Establish clear review criteria and make them available to treating professionals. Set a minimum number of initial sessions that can be funded without review. In excess of the minimum limit, review only a portion of randomly selected cases. Fund on-going treatment through any review period. Allow for second-opinion reviews on appeal. Permit a fixed number of termination sessions prior to the cancellation of funding. Restore patients' freedom to choose their health professionals without any restrictions or penalties. Remove employers from the health care equation by setting up health insurance accounts for individuals to manage at their own discretion.

References

    American Psychological Association. (1992). Ethical principles of psychologists and code of conduct. Washington, D.C.: American Psychological Association.

    Bok, S. (1989). Secrets: On the ethics of concealment and revelation. NY: Vintage Books.

    Hollon, S.D. (1996). The efficacy and effectiveness of psychotherapy relative to medications. American Psychologist, 51 (10), 1025-1030.

    Lipsey M.W. & Wilson, D.B. (1993). The efficacy of psychological, educational, and behavioral treatment: Confirmation from meta-analysis. American Psychologist, 48,  1181-1209.

    Roback, H.B. & Shelton, M. (1995). Effects of confidentiality limitations on the psychotherapeutic process. Journal of Psychotherapy Practice and Research 4: 185-193.

    Strupp, H. H. (1996). The tripartite model and the consumer reports study. American Psychologist. 50: 1017-1024.


Jeff McKee
Saturday, April 25, 1998