Legal defense fund helps make psychology's case

Legal assaults on confidential records are growing.

By Joe Volz
Monitor staff

When Doug Moore, PhD, an Independence, Ohio, psychologist, started treating a client for depression, he never envisioned that he could run into legal difficulties--all because he insisted on protecting the privacy of his patient.

The client had been injured on the job while working for a Cleveland company which was self-insured and paying Moore's fees. When MTD Products sought Moore's clinical notes to determine if the client still needed mental health treatment, the psychologist refused. He didn't want the company to have access to his detailed notes. Moore had an ethical obligation to protect his client.

It was yet another clinician-insurer confrontation over patient confidentiality, an often expensive struggle for psychologists trapped between their responsibilities to the patient and a court's insistence that society, as a whole, would be better served if notes were made available.

"The crisis seems to be growing," says William Carroll, PhD, JD, a John Marshall law professor in Chicago.

He says many of the traditional relationships, such as the one between a psychologist and a client, are being weakened.

"It reflects conditions of a society that wants a quick fix without thinking it through," he argues.

"If patients really knew how insecure information is, unless the psychologist is willing to go to the slammer [to protect the records], they would probably resist a lot of disclosures."

Like the ozone layer

Donald Bersoff, PhD, JD, former APA legal counsel and now director of the JD-PhD Program in Law and Psychology at Villanova Law School and the Medical College of Pennsyl-vania, puts it this way: "Like the ozone layer of the atmosphere, there has been a gradual, but constant, erosion of these fundamental values [privacy and confidentiality]."

The erosion affects not only the psychologists but also the clients who, "seeking reimbursement for psychology from their insurers, are almost always compelled to waive their right to bar dissemination" of personal information to the insurer," Bersoff writes in"Ethical Conflicts in Psychology" (APA Books, 1995).

Although there is no easy solution to the privacy issue, APA's Psychology Defense Fund (PDF) has been offering limited financial aid to clinicians, scientists and educators who go to court in cases that could have broad legal implications for psychology. In Moore's situation, the battle to protect the confidentiality of patients is a topic of great concern to APA.

The fund has paid out $835,000 in its 20-year history and in Moore's case, is contributing $10,000. (PDF is separate from the APA operating budget and is supported solely by tax-deductible contributions.)

Moore vows to take the fight to the Supreme Court, if necessary. He argues that he did not obstruct the employer's need for information and even offered to supply a summary or have a psychologist of the company's choice examine the records.

But the employer, who did not respond to the Monitor's request for an interview, rejected those options.

The company stopped paying Moore and petitioned the Ohio Industrial Commission to force his cooperation by subpoena.

Refuses subpoena

"It is inappropriate for an employer to have confidential office notes," Moore says. He refused to respond to the subpoena from the commission last February

But a probate judge ruled in July that Moore must turn over all of his notes to the company or face a jail term.

However, there were several legal issues still unresolved at press time, such as whether or not the client would allow Moore to release the notes, and it was unclear just what would happen next.

In another case, David Brubakken, PhD, a Seattle clinician, sought to protect his own confidentiality--or at least help psychologists in the future from going through the trauma he suffered.

Brubakken knows more than most about guarding the privacy of psychology clients. He was chief of mental health at Group Health Cooperative of Puget Sound--and a mental health client himself.

Concerned about protecting his own privacy, he went to a different facility as a patient and did not submit bills for drugs or lab work.

All of that caution was not enough.

Brubakken's own patient records remained at Group Health, and one day in 1991, the Group Health finance office conducted a random training exercise using real files, including Brubakken's. One of the employees recognized Brubakken's file and word got out at Group Health that the chief of mental health was, himself, depressed.

Brubakken took Group Health to court.

"I think the real issue is to respect people's privacy," he says. "You can't use people's names."

PDF gave Brubakken $5,000 to support his litigation against Group Health for violation of confidentiality under the Washington State Health Care Information Act. Billie Hinnefeld, APA director of legal/regulatory affairs, says Brubakken's case "was representative of the problem protecting confidentiality of records when dealing with the managed-care=and insurance industries."

Arduous battle

Brubakken's fight took more than six years. In 1995, King County Superior Court Judge Carol Schapira tossed out his claim, ruling that Group Health's action did not violate state privacy laws. She said that the minimal amount of information released was "too insignificant to constitute the unauthorized disclosure of health-care information."

Brubakken appealed. The Washington Court of Appeals reversed the trial court's decision, ruling that Group Health did not need to use Brubakken's name. The appeals court sent the case back to the lower court to determine damages to Brubakken.

At that point in August 1997, both sides reached an undisclosed out-of-court settlement.

Brubakken, now in private practice, says, "I feel really good about it."

Jodi Long, associate general counsel at Group Health, declined comment about the specifics of the case.

No easy answer

Clearly, experts agree, there is no simple way to resolve the confidentiality issue to everyone's satisfaction. Most states have laws protecting the clinician-patient relationship. Yet, there are times when the laws are not that protective.

But Leon VandeCreek, PhD, of the School of Professional Psychology at Wright State University in Dayton, who has written extensively on privileged communications, suggests that a clinician, confronted by a demand from an insurer for "all the records," attempt to send a summary instead. Sometimes it works, even though it didn't in Moore's case.

VandeCreek says that "even if the provider demands all the records, what does that mean? Does it mean every jot and note? Usually, you will discover that the insurance company is willing to live with less than the whole record."
APA's Committee on Legal Issues also offers advice on how to deal with court subpoenas for records in an article titled, "Strategies for private practitioners coping with subpoenas or compelled testimony for client records or test data." (Professional Psychology: Research and Practice, Vol. 27, p. 245-251, June 1996).

"The simplest way of proceeding, and perhaps the least costly," says the committee, "may be to write a letter to the court with a statement that the psychologist wishes to comply with the law but that he or she is ethically obligated not to produce the confidential records...unless compelled to by the court or with the consent of the client."

Those seeking financial aid from PDF for pursuing cases that will benefit psychology as a whole should contact Billie Hinnefeld, PhD, JD, APA director of legal and regulatory affairs, at (202)336-5886.



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