Legal, Ethical, and Professional Issues in Psychoanalysis and Psychotherapy
Privacy with the Absence of Records
within the standard of practice to protect privacy by treating a client
without assigning a diagnosis? - By working with a client who is using a
pseudonym? - Or by not recording sensitive material in the record?
In Colorado, 519 Psychologists endorsed a petition indicating that they
supported these practices.
is always threatened when there is a record that can be misplaced, subpoenaed by
an adversarial attorney, or obtained by coercing the client to sign a
release of information. Recognizing that records are vulnerable to such breaches
of privacy, professionals protect privacy in some circumstances by not recording
sensitive information or at times, by treating clients under a pseudonym.
Moreover, many times therapists offer services without performing a diagnostic
evaluation or recording a formal diagnosis.
until now, withholding information from records has not been formally endorsed
as an acceptable standard of practice. The Colorado petition was a response
to a state licensing board proposed rule that appeared to require that all
people seen by a psychologist must: (1) be diagnosed, (2) have their identities
recorded, (3) have their reasons for consultation recorded, and (4) have the
content of each meeting recorded.
protest the proposed rule, a group of psychologists organized the Colorado
Psychologists' Ad Hoc Committee on Record Keeping and mailed a letter to all of
Colorado licensed psychologists. Each letter included seven pages of
explanation and a postcard petition that psychologists were asked to sign and
return. Of the 1917 psychologists contacted, 519 (27%) returned signed postcards
supporting the petition.
The statements in the petition that pertain to privacy were the following: I object to the requirements:
That the clients of psychologists must be diagnosed.
That the clients of psychologists must have their identity and reasons for treatment recorded in such a manner that it can be reviewed by a third party.
the content of sessions must be recorded in a manner that can be reviewed by
a third party.
today's world, mental health clients are stigmatized and penalized when they
receive a diagnosis. Although a national survey indicates that within any year
at least 29 percent and over a lifetime 48 percent of the population meet the
criteria for a mental health diagnosis (Kessler et. al., 1994), it is only
those who seek treatment who actually receive a diagnosis.
diagnosed, clients may be unable to obtain affordable health insurance or
be denied life insurance. The stigma can affect how health care professionals
and others who learn of the diagnosis treat them. An erroneous diagnosis is often difficult to remove from
there are clients who do not want to be diagnosed--self-paying psychotherapy
clients, coaching clients, and other clients who want to consult with a mental
health professional but are not asking for a diagnostic evaluation.
other hand, there is strong societal pressure to diagnose every client.
Some insurance companies are frustrated if they are conducting an underwriting
evaluation, and they are told that a client only consulted with a psychologist
for personal and interpersonal concerns, not for treatment of a DSM-IV
companies want a diagnosis so they can categorize the client, and often, they
use the diagnosis to restrict the client's pending insurance policy.
Furthermore, within the profession, proponents of the medical model believe that
the profession is enhanced when clients are given a medical diagnosis, and in
many medical settings, diagnosis is required.
however, have a different position regarding diagnosis.
Consumers only want a diagnosis when it will clearly lead to better
treatment or some benefit greater than the potential discrimination or stigma.
psychotherapy, many times the DSM-IV diagnosis does little to guide treatment,
and it is often not necessary. Moreover, there is no clear dividing line between
psychotherapy and the processes of problem solving, consultation, or coaching -
services that do not require a diagnosis.
the negative repercussions of a mental health diagnosis, it is not surprising
that in many situations consumers wish to be able to talk with a professional or
use the tool of psychotherapy without either a diagnostic evaluation being
conducted or a diagnosis being recorded. The
petition documents that a large proportion of psychologists supports the right
to talk with a mental health professional without receiving a formal diagnosis.
best guarantee of complete privacy is to be treated under an alias or pseudonym.
Such a practice leaves no evidence of the consultation. In spite of our
profession's commitment to confidentiality, psychotherapists have frequently
accepted a role as social control agents (Bollas and Sundelson, 1995), and as a
result, some professionals have wondered if treating clients under an alias is
ethical. Although treatment under
an alias should not be used as a way to promote a criminal activity, people's
right to have a private discussion should outweigh the right of insurance
companies and government to have access to their private issues.
this practice, at the hearing regarding the licensing board's proposed
record-keeping rule, three psychologists testified that they treat clients under
pseudonyms. One client who was in treatment under a pseudonym wrote an
eloquent (but unsigned) letter to the licensing board describing how she
believed that she was only able to enter therapy because her therapist agreed to
the privacy of treating her under a fictitious name.
these hearings, there was strong protest against requiring a record that
includes the client's reasons for treatment and the content of sessions. Such a
record would often contain the information that clients most want kept private,
and some clients request treatment without these records.
concern about potential breaches of confidentiality is more than theoretical. At
times, records can end up harming a patient by being subpoenaed in a future
lawsuit. This can happen if the client is injured and sues for psychological
damages. Once a person's mental health is introduced in a trial, all previous
records are open to examination by the opposing attorneys, and these opposing
attorneys can use the information in the record to embarrass the client. One
therapist had a district attorney remove a record through a no-knock search
because his client was involved in a shooting. Another therapist reported that a
victim of domestic violence killed herself after a beating, and the abusive
husband subpoenaed her record in order to sue the therapist for the suicide.
There are other reports of records being sold or accidentally released. If
mental health professionals are in treatment, they may not want the professional
peer reviewer to see their personal concerns.
examples demonstrate that once a record exists, it can end up somewhere the
client did not want it. In spite of the many ways that records can create a
potential for loss of privacy, most of the literature encourages thorough
interview with a malpractice attorney was quite illustrative in describing the
conflict between the pressure to record a client's private concerns and the
consumer's perspective. When advising psychotherapists on how to protect
themselves from malpractice, he emphatically recommended recording as much as
possible based on the principle that if it isn't in the record, it may not have
happened. He then took the other side and from the role of a consumer he said,
"However, in the case of a guy like me, I'd like to see someone who did not
diagnose me or keep records. That's why I like the idea of coaching."
words of another consumer, "If a psychologist is going to give me diagnosis
and make a record of my personal secrets, I think I'll just talk to a
friend over a beer." Most people have at least some personal concerns that
they would prefer never appear in any record.
the petition protested legally required records, most of the psychologists who
signed it keep records as an aid to their memory. Nevertheless, they had many
ways to protect client privacy, and they wanted these methods protected from the
state record-keeping rule. Some write records in a personal shorthand that is
intended only to stimulate their memory and cannot be accurately interpreted by
a third party. A few clients are seen under an alias.
some cases, therapists agree to see clients without keeping records, and usually
in these cases, the therapist advises the client that the lack of any records
will make remembering previous sessions more difficult. Even in situations where
the therapist believed that thorough record keeping was important, most admitted
that there were times that sensitive information was deliberately not entered in
for the greatest privacy is one of the motivations for clients seeking self-pay
therapy and coaching, and the best guarantee of privacy is consultation without
records or a diagnosis. Complete privacy is threatened by pressure from
insurance companies, proponents of the medical model, government agencies like
the licensing boards, and malpractice attorneys who advocate for a standard of
practice that does not allow for treatment without complete records.
it does not take a majority vote to establish a standard of practice; a
substantial minority can establish that a practice is within accepted standards.
The 519 Colorado Psychologists have established that a substantial number of
psychologists believe that it is within the standard of practice to both omit
records for privacy concerns and only conducting a diagnostic evaluation upon
Bollas, C. & Sundelson, D., (1995). The New Informants: The Betrayal of Confidentiality in Psychoanalysis and Psychotherapy. Northvale, New Jersey: Jason Aronson, Inc.
Kessler, R. C., McGonagle, K. A., Zhao, S., Nelson, C. B., Hughes, M., Eshleman, S., Wittchen, H. U., & Kendler, K. S. (1994). Lifetime and 12-month prevalence of DSM-III-R psychiatric disorders in the United States. Archives of General Psychiatry, 51, 8-19.
Ivan J. Miller is the Chairperson of the Colorado Psychologists' Ad Hoc Committee on Record Keeping and the President of the Boulder Psychotherapists Guild, Inc. A more extensive version of this article is being prepared for publication in a peer-reviewed journal. In response to the petition, letters of protest, and testimony at the public hearings, the proposed rule has been tabled by the licensing board, and in all likelihood, it will be rewritten or abandoned. The author may be contacted at 350 Broadway, Suite 210, Boulder, Colorado 80305, 303-499-3888, IvanJM@aol.com.
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