The Honorable Joseph R. Pitts: Given your professional work treating individuals with serious mental illness, are the modifications to HIPAA in H.R. 3717, as described by Mental Health America, an “erosion of privacy protections” or “disrupting [to] the patient-provider relationship” in any way?
Dr. Welner: Mental Health America, in its published policy statements, supports exceptions to the confidentiality of HIPAA in a number of detailed scenarios that include entire classes of patients. They do not qualify that these exceptions are an erosion of privacy protections. Rather, Mental Health America’s positions concede that special situations arise that ought to allow for exceptional contact.
Mental Health America’s modifications of HIPAA are carefully circumscribed in its language. These focus on extraordinary clinical situations in which the patient’s welfare or that of others is at stake, and open communication is allowed only with family or caregivers. By comparison , HR 3717’s modifications cannot be an erosion if the extraordinary circumstances they address are far more precise than the broad scenarios for which Mental Health America already supports even less specific disclosure.
Consider that only a partial list of the exceptions to HIPAA proposed by Mental Health America includes:
Minors - Children and adolescents are also people with individual rights. Adolescents in particular are often of the assessment that they possess adult judgment and prefer to make decisions without the knowledge of adults. Said adolescents may be particularly intelligent, even in the face of serious mental illness and mental health crisis. Mental Health America supports exceptions to HIPAA with the treatment of children and adolescents. In practice, this would include the following such patient:
In an existing treatment relationship with a 17 year old, who may even be in college or drive alone to an appointment, the provider can reach out to parents and caregivers for reasons that are not restricted by the recommended Mental Health America exception in any way.
A HIPAA exemption for all children and minors is far less specific than the precise allowances of personal risk and deterioration and public safety that are denoted in HR 3717. It is inherently contradictory for Mental Health America to be comfortable with carve outs to HIPAA based entirely on age and to deem those allowances to HIPAA proposed in HR 3717 to be an erosion of privacy protections. HR 3717 respects privacy provisions of HIPAA and bases its exceptions not on age, but on a level of clinical deterioration that endangers personal or public safety.
Furthermore, the exclusions of HR 3717 involve someone whose judgment is impaired by virtue of their serious mental illness and mental health crisis. It is the appreciation that adolescents, whatever their education and maturity, may lack judgment in such circumstances to warrant a psychiatrist or psychologist’s initiative to convey sensitive information to a caregiver or parent. To suggest that a person with serious mental illness or in mental health crisis is any less limited is contradictory.
Treatment providers, when working with adolescents, recognize that even though they are able to communicate information from the treatment to parents and caregivers, the patient may feel betrayed if they do. The caregiver therefore weighs the exception to blanket confidentiality and considers the benefits to the patient, any potential safety conditions, and the risks of the patient’s response. Thus, the provider has the latitude to exercise professional judgment, and the patient-provider relationship proceeds or it does not, from the outset. Mental Health America supports this.
Medical emergencies - According to currently distributed Mental Health America position papers, “Information should be available to health care personnel for the purpose of treating a condition that poses an immediate threat to the health of the consumer or others.”
Thus, Mental Health America does not feel it to be an “erosion of privacy protections” when a psychiatrist or psychologist conveys sensitive information of even an adult patient that helps them treat a condition that immediately threatens the health of the patient or others. That could be said of any stage of an acute mental health crisis, of a clearly deteriorating mental health condition, and of intractable drug and alcohol abuse.
Moreover, Mental Health America is comfortable with this exception even though the wording allows that the medical emergency need not necessarily be life threatening. Or, the illness may involve a completely different person.
Moreover, the allowance to the health of that different person does not even specify that said “others” are at risk of actions of the patient, such as an intimate unaware of a partner’s HIV positivity.
Communicating a patient’s private details in medical urgencies of the patient or others (who might even be estranged from the patient) implicitly means that the doctor is conveying information that the patient himself would not. Many patients would find that disruptive to the doctor-patient relationship. But Mental Health America supports such an allowance. In so doing, the organization recognizes that the physician or psychologist does not wish to disrupt the doctor-patient relationship, and it is prudent to rely upon the physician to act with responsible discretion.
HR 3717 restricts communication to caregivers. Even within family, therefore, the flow of information is restricted. In addition, HR 3717 places the responsibility on the physician to weigh the necessity of conveying information, what that information should be restricted to, how to express those details, and who exactly needs to know. The physician can therefore respect privacy laws, attend to medical risk, and demonstrate to the patient that this provider is trying to protect the provider-patient relationship.
In short, Mental Health America’s exemption for HIPAA privacy on “medical emergency” is broader than the more restrictive allowances proposed by HR 3717.
One cannot have a provider-patient relationship without a patient. Serious mental illness and mental health crisis may introduce situations in which a clinician faces that dilemma, and the solution is to communicate with a caregiver. HR 3717’s modifications allow for psychiatric treatment to make this natural adaptation to reality and to responsible crisis management.
Consumers who are Legally Incompetent - Mental Health America’s position papers allow that a patient may become legally incompetent and in such a situation, a legal guardian should be appointed to make such decisions concerning the release of confidential information. Many seriously mentally ill who suffer a deterioration of their condition become legally incompetent. Legal incompetence may also be the fate of a person in mental health crisis.
The same Mental Health America would allow for a provider to convey information of a minor without asking that a guardianship proceeding take place. Its position for the legally incompetent is therefore inconsistent.
The confrontation inherent to the process of the appointment of a guardian is disruptive to the doctor-patient relationship. The process requires that the doctors emphasize the patient’s weaknesses and debilities in writing and in testimony to secure such a guardian. It asks that the court impose a decision-maker on a patient. The process may be necessary and I know it well, but it is certainly denigrating to the patient by design.
Furthermore, the process of guardianship appointment is lengthy and time consuming. In the crisis situation, or that of a person’s acute deterioration, a person could be cold and buried by the time court approval is secured. But Mental Health America is comfortable supporting this position.
HR 3717 exceptions to HIPAA do not warrant a process that forces the doctor to diminish his own patient. No outside third party beyond the caregiver or family is involved. There is no judge, no proceeding, and no attorneys. Exceptions to HIPAA are restricted to private communications channels between supporting family and doctor. This is far less an erosion of privacy that what Mental Health America already supports, and likewise less damaging to the doctor-patient relationship.
Child and Elder Abuse and Neglect – as Mental Health America points out in its position papers, all states require the reporting of child abuse and neglect. Many persons with serious mental illness or in mental health crisis have children in their custodial responsibility who are obviously imperiled by neglect alone.
If the law requires reporting of child neglect to the authorities, is it not far less an erosion of privacy to engage concerned caregivers or family allied with the patient to arrange for provisions and the welfare of children who may be neglected or otherwise mistreated (as proscribed by HR 3717) before authorities are NECESSARILY brought in to turn a home upside down?
As such, Mental Health America supports an allowance that is far more of an erosion of privacy and a disruption of the provider patient relationship than what is proposed by HR 3717.
As a psychiatrist who conducted the most extensive interviews with Andrea Yates, the Texas mother who drowned her children, I would recount her recorded admissions to me that even as she was in psychiatric treatment, she was quite aware that she was neglecting her children. This, she explained was at the heart of her decision to kill them; for as her deteriorated if docile condition advanced, and the neglect persisted, and her children became more disruptive and unresponsive to her, she lost confidence in ever restoring their obedience. It was then that she contemplated and then planned to murder them for two months before finally doing so when she had the first opportunity to be alone with them.
The Yates tragedy well illustrates how there are those who are acutely ill who do not obviously demonstrate how imminent their potential risk is, but are sick enough that the neglect of their children is obvious. Mental Health America supports telling the authorities. HR 3717 creates allowance for the provider to decide to communicate with caregivers or intimate family as necessary when serious mental illness demonstrates crisis and deteriorating conditions.
A psychiatrist educated about the respect afforded his clinical judgment under such circumstances would be in a position to save the children in the Yates home and victims of other filicides before being mandated to report overt abuse – which the parent would be invested in concealing. Filicides continue, most recently in Rep. Murphy’s Pittsburgh, among those in psychiatric treatment, even when the treatment is available and they participate. Families are unaware of provisions needed to protect defenseless children until it is too late. No one speaks for defenseless children, and they are not here to advocate. But it is they who are killed.
HR 3717 allows the provider to make responsible decisions about disclosure and to use professional standing to mitigate family risk without obliterating family integrity. As in the case of a medical emergency, you need a patient for a patient-provider relationship. A patient arrested or merely the subject of a child welfare investigation experiences far more erosion of privacy and disruption to the provider-patient relationship.
For the patient who has been violent or suicidal, or in any way is at risk to be violent or suicidal, if that person comes to a mental health professional for help, responsible psychological practice is to protect that person from making irreversible and destructive choices. If that involves engaging a support system at the appropriate time, and if our licensing entrusts a provider to act responsibly just as does the patient who chooses that provider in the first place, there is neither erosion nor enduring disruption.
Allowing professionals to use their judgment allows professionals to be human in weighing the risk/benefit of disclosure. It recognizes that as all physicians take the Hippocratic Oath, we all vow to do no harm and to not share information that, as the Oath proscribes, “ought not” be communicated. We psychiatrists know that and live that.
But “ought not” is not synonymous with “will not.” “Ought not” also means that when information “ought” to be conveyed to responsible family and caregivers, to not do so is a moral violation.
The outrage that this committee has heard from parents such as Mr. Earley and Mr. Milam is not an anti-psychiatry sentiment. On the contrary, they sought out psychiatry. Theirs is the pain of being on the wrong end of that moral betrayal of caregivers shut out from information that would have saved a life or almost caused loss of another. Their stories, in my professional experience, are not just common, they are widespread. This has to change, and can change with modifications to HIPAA such as those proposed in HR 3717.
