A Brief History of Confidentiality in Psychotherapy

By Ivan Perkins on January 10, 2018

bigstock-Private-And-Confidential-133147832.jpgOver the last few decades, the standard of care in psychotherapy has become increasingly strict, stringent, and precise when it comes to maintaining confidentiality.

For a long time, courts have found all medical providers liable for divulging patient confidences without a good reason. Even in the absence of any statutes or case law on point, courts have found this basic point fairly intuitive and non-controversial.

The reason for this rule was clear: confidentiality was essential for treatment. As the Supreme Court of Utah put it:

If the doctor could with impunity publish anything that is true, the patient would be without protection from disclosure of intimacies which might be both embarrassing and harmful to him. This would make him reluctant to tell some things even though they might be important in the treatment of his ills. For this reason it is obligatory upon the doctor not to reveal information obtained in confidence in connection with the diagnosis or treatment of his patient.

The same court concluded that for violations of this confidence, “an action would lie for any injury suffered.” (Berry v. Moench, 8 Utah.2d 191, 196 (1958).)

But the law was slow to impose this rule strictly.

In a 1930 case, for example, a California court bent over backwards to find that a physician, Dr. McPheeters, did not engage in the “willful betraying of a professional secret” when he wrote letters to his former office assistant, telling her about his ongoing treatment of various patients. (McPheeters v. Bd. of Med. Examiners of Cal., 103 Cal.App. 297 (1930).) As the court noted, the letters showed that the doctor and the assistant “were on very intimate terms with each other.” One letter discussed how a particular female patient was contemplating marriage, and had inquired about sexual relations in a manner implying unfamiliarity with them.

The court decided that these gossipy tidbits, in private letters, did not constitute a “willful betrayal” of confidences because there was no intent to injure the patients. It also helped that none of the patients had complained. Instead, the Board of Medical Examiners had come into possession of the letters after the former assistant had died, and had revoked the doctor’s license. The court reversed, allowing Dr. McPheeters to continue practicing medicine.

In Berry v. Moench, a case from 1958, a psychiatrist revealed highly damaging information about a patient, in order to dissuade a young woman from marrying the patient. From a contemporary perspective, this case is notable for how much leeway the court granted the psychiatrist.

The psychiatrist, Dr. Moench, had received a letter from another doctor, naming the former patient and requesting the psychiatrist’s “impression of the man.” The other doctor sought this information so that he could pass it along, as a favor, to the parents of a young woman who was then keeping company with the patient.

Dr. Moench’s letter in response was remarkable. It opened with an absurd pretense of confidentiality: “Since I do not have his authorization, the patient you mentioned in your last letter will remain nameless.” It then launched into a litany of details about that patient:

He was treated here in 1949 as an emergency. Our diagnosis was Manic depressive depression in a psychopathic personality . . . He had one brother as a manic, and his father committed suicide . . . The patient was attempting to go through school on the G.I. bill . . . Instead of attending class he would spend most of the days and nights playing cards for money . . . Because of family circumstance, we treated him for a mere token charge (and I notice even that has never been paid). . . He was in constant trouble with the authorities during the war . . . did not do well in school, and never did really support his wife and children.

The psychiatrist provided some blunt advice to the young woman in question.

My suggestion to the infatuated girl would be to run as fast and as far as she possibly could in any direction away from him. Of course if he doesn’t marry her, he will marry someone else and make life hell for that person. The usual story is repeated unsuccessful marriages and a trail of tragedy behind.

Dr. Moench had treated the patient seven years earlier, with four sessions of electric shock treatments.

The court first affirmed that a violation of doctor-patient confidentiality was actionable. But it quickly undermined that finding, noting that a “privilege” for revealing patient secrets would apply if there is “a sufficiently important interest to protect,” and the disclosure is “reasonably necessary to protect such interest.” The court confirmed the trial court’s ruling, to the effect that the young woman’s well-being and happiness was a “sufficiently important interest.” The court held that it was up to a jury to determine whether the psychiatrist had acted in “good faith” and shown “reasonable diligence” regarding the truth of his statements.

A warning to today’s psychotherapists: do not rely on McPheeters or Moench! Our contemporary law of doctor-patient confidentiality is far more stringent and precise. Any disclosure generally requires a specific legal exception to confidentiality.

Confidentiality violations have essentially become a form of malpractice. Clients may recover for all harms flowing from an improper disclosure, including emotional distress.

Even as the law began to impose a strict “duty of care” regarding patient information, however, it also began crafting narrow, precise exceptions to confidentiality.

In 1976, the seminal Tarasoff case opened a major breach in the wall of psychotherapeutic confidentiality, finding a “duty to protect” when a client poses an imminent danger of physical harm to a reasonably identifiable person. After the decision, many state courts and legislatures have followed its lead. As of 2012, 33 states had some type of mandatory duty to warn or protect.

Another fissure in the barricade of confidentiality opened when state child abuse reporting statutes were revised to encompass mental health practitioners. Originally, these reporting laws extended only to doctors and other medical personnel. In 1962, not a single state required doctors to report suspected child abuse. By 1967, all of them did. Today, these statutes generally apply to psychotherapists.

While Tarasoff and child abuse reporting constitute major exceptions to confidentiality, they are hardly the only ones. All of the confidentiality rules and exceptions are detailed in our Law & Ethics CE No. 2, Confidentiality and Client Access to Records.

Just remember, whenever a confidentiality exception applies, it will only be with respect to precise pieces of information—i.e., the “minimum necessary” under the circumstances. This way, much of the client’s highly sensitive information remains shielded.



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