ELECTRONIC PSYCHOLOGICAL RECORD KEEPING: MEETING THE ETHICAL AND LEGAL STANDARD OF CARE

Transcription

1 ELECTRONIC PSYCHOLOGICAL RECORD KEEPING: MEETING THE ETHICAL AND LEGAL STANDARD OF CARE Jeffrey N. Younggren, Ph.D. Clinical Professor UCLA David Geffen School of Medicine

2 EHR s or THE PURSUIT OF EFFICIENCY CONFLICTS WITH ECONOMICS, ETHICS AND THE LAW

3 ECONOMICS

4

5 evidence of significant savings is scant, and there is increasing concern that electronic records have actually added to costs by making it easier to bill more for some services. The recent analysis was sharply critical of the commercial systems now in place, many of which are hard to use and do not allow doctors and patients to share medical information across systems.

6

7 PBS REPORT The Office of the Inspector General found "a lack of general [information technology] security controls during prior audits at Medicare contractors, State Medicaid agencies, and hospitals. The investigation audited computer security at seven large hospitals in different states, and found 151 major vulnerabilities, including unencrypted wireless connections, easy passwords, and even a taped-over door lock on a room used for data storage.

8 ETHICS

9

10

11

12 2010 ETHICAL PRINCIPLES OF PSYCHOLOGISTS 4.01 Maintaining Confidentiality Psychologists have a primary obligation and take reasonable precautions to protect confidential information obtained through or stored in any medium, recognizing that the extent and limits of confidentiality may be regulated by law or established by institutional rules or professional or scientific relationship.

13 2010 ETHICAL PRINCIPLES OF PSYCHOLOGISTS 4.04 Minimizing Intrusions on Privacy (a) Psychologists include in written and oral reports and consultations, only information germane to the purpose for which the communication is made. Standard 4.04(a) suggests that psychologists focus the documentation in a manner that is very protective of their client s privacy rights.

14 AMICUS BRIEF AMERICAN PSYCHOLOGICAL ASSOCIATION Confidentiality is essential to the psychotherapist-patient relationship because the effectiveness of psychotherapy depends on the client's willingness and ability to talk freely and candidly about his or her most intimate thoughts and feelings. The absence of confidentiality is likely to deter people from seeking therapy and to cause clients already in therapy to withhold information or to terminate the relationship prematurely

15

16 THE PRINCIPLES OF MEDICAL ETHICS 1. Psychiatric records, including even the identification of a person as a patient, must be protected with extreme care. Confidentiality is essential to psychiatric treatment. This is based in part on the special nature of psychiatric therapy as well as on the traditional ethical relationship between physician and patient. Growing concern regarding the civil rights of patients and the possible adverse effects of computerization, duplication equipment, and data banks makes the dissemination of confidential information an increasing hazard. Because of the sensitive and private nature of the information with which the psychiatrist deals, he or she must be circumspect in the information that he or she chooses to disclose to others about a patient. The welfare of the patient must be a continuing consideration.

17 REPORT NO. 45, GROUP FOR THE ADVANCEMENT OF PSYCHIATRY 92 (1960)": "Among physicians, the psychiatrist has a special need to maintain confidentiality. His capacity to help his patients is completely dependent upon their willingness and ability to talk freely. This makes it difficult if not impossible for him to function without being able to assure his patients of confidentiality and, indeed, privileged communication. Where there may be exceptions to this general rule..., there is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment. The relationship may well be likened to that of the priest-penitent or the lawyer- client. Psychiatrists not only explore the very depths of their patients' conscious, but their unconscious feelings and attitudes as well. Therapeutic effectiveness necessitates going beyond a patient's awareness and, in order to do this, it must be possible to communicate freely. A threat to secrecy blocks successful treatment."

18 LAW

19 JAFFEE V. REDOMOND (1996) Like the spousal and attorney-client privileges, the psychotherapist-patient privilege is rooted in the imperative need for confidence and trust. Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests. Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.

20 JAFFEE V. REDMOND (1996) Significant private interests support recognition of a psychotherapist privilege. Effective psychotherapy depends upon an atmosphere of confidence and trust, and therefore the mere possibility of disclosure of confidential communications may impede development of the relationship necessary for successful treatment. The privilege also serves the public interest, since the mental health of the Nation's citizenry, no less than its physical health, is a public good of transcendent importance.

21 FINAL HIPAA PRIVACY RULES PHI for psychotherapists is separated into two types of records: The Clinical Record Psychotherapy Note

22 HIPAA The Clinical Records Includes: 1. medication prescription and monitoring 2. counseling session start and stop times 3. the modalities and frequencies of treatment 4. results of clinical tests (including raw test data) 5. summaries of: a. diagnosis b. functional status c. treatment plan d. symptoms e. prognosis f. progress to date

23 PSYCHOTHERAPY NOTE Psychotherapy notes means notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual s medical record.

24 PSYCHOTHERAPY NOTE Psychotherapy notes excludes medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.

25 Heller Ehrman LLP.

26 GALVIN V STANFORD HOSPITAL In a written statement, Lee Wills, Stanford Hospital's chief marketing and communications officer, denied that any records had been sent improperly. He declined to comment further. A Unum spokesman said: "We believe that for our part, the proper procedures were followed, and that Ms. Galvin's lawsuit is without merit." A year after she sued, says Ms. Galvin, she learned from a lawyer representing Stanford that the hospital had scanned at least some of Dr. Manber's notes about her into its computer records system, effectively making them part of her basic medical record. Stanford then had sent this file to her insurer and to the lawyer for the driver who hit her car. Later, UnumProvident sent Ms. Galvin's records to a lawyer for an auto club that insured Ms. Galvin against uninsured motorists. Unum says it did nothing improper

27 GALVIN V STANFORD HOSPITAL In court papers, Stanford said that "psychotherapy notes that are kept together with the patient's other medical records are not defined as 'psychotherapy notes' under HIPAA." The hospital is not required to keep them separate, the court papers said, and it would be "impracticable" to do so. In a separate filing, Dr. Manber asserted that the notes "do not constitute psychotherapy notes" as defined by the federal rules and that it was appropriate for her to send them to Stanford's medical-records department. Dr. Manber declined to comment, as did a lawyer representing her and Stanford. The U.S. Department of Health and Human Services last summer rejected an administrative complaint by Ms. Galvin against Stanford, saying the hospital hadn't broken any rules because it "did not separate Ms. Galvin's Sleep Center Records from her general medical records.

28 CA PSYCHOTHERAPIST PATIENT PRIVILEGE Subject to Section 912 and except as otherwise provided in this article, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist

29 CA CONFIDENTIAL COMMUNICATION BETWEEN PATIENT AND PSYCHOTHERAPIST As used in this article, confidential communication between patient and psychotherapist means information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation, or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted

30 CONCLUSIONS

31 TENTATIVE CONCLUSIONS The rush to create EHR s has the placed the confidentiality of psychotherapy at risk. The individual error rates related to security errors have dropped but the scope of errors has increased. Some current EHR policies regarding psychotherapy records are inconsistent with ethics. Some current EHR policies are inconsistent with the law. Confidentiality laws are inconsistent across jurisdictions. Record keeping requirements for psychologists differ from state to state placing a generic policy at risk.

32 THE SOLUTION Respect the need to separate highly sensitive personal information from the information that NEEDS to be in the clinical record. Establish hospital policy that reflects the findings of Jaffee v Redmond regarding the need for therapy to be a safe and confidential setting. Second record sets already exist in many psychology departments for testing materials

33