Saturday, November 26, 2011

Please Don't Tell

Earlier, we were talking about an ethical dilemma in The Very Badly Behaved Health Care Practitioner-- What should a therapist do if he's treating another therapist who confesses he's been having an affair with a patient?  Should the treating therapist report his patient to their respective licensing board?  Of course, the comments are the most interesting part of that post. 

It got me thinking about two things:  Doctor-Patient Confidentiality and What is a Patient? 

From the Encyclopedia of Everyday Law:
The Oath of Hippocrates, traditionally sworn to by newly licensed physicians, includes the promise that "Whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret." The laws of Hippocrates further provide, "Those things which are sacred, are to be imparted only to sacred persons; and it is not lawful to impart them to the profane until they have been initiated into the mysteries of the science."

Doctor-patient confidentiality stems from the special relationship created when a prospective patient seeks the advice, care, and/or treatment of a physician. It is based upon the general principle that individuals seeking medical help or advice should not be hindered or inhibited by fear that their medical concerns or conditions will be disclosed to others. Patients entrust personal knowledge of themselves to their physicians, which creates an uneven relationship in that the vulnerability is one-sided. There is generally an expectation that physicians will hold that special knowledge in confidence and use it exclusively for the benefit of the patient.
Most psychiatrists I know (at least in Maryland) do not violate their patients' confidentiality unless 1) there is an issue of child abuse and this is because state law mandates it be reported, and 2) there is an imminent risk of danger to self or others.  There may be reasons other physicians break confidentiality, for example the mandated reporting of contagious diseases or driving issues with epilepsy, but these do not generally happen in psychiatry.  The thinking behind doctor-patient privilege is that no one would trust a physician if they worried their problems would be repeated.  When I am not sure what to do, I will ask a trusted colleague, but there are clearly times when what is in a patient's best interest is not what's in society's best interest (such as prescribing an expensive medication or ordering an expensive test or revealing information learned in treatment) and I generally feel that my job is to keep my patient's best interest in front of me.  It's hard to be everyone's agent.

For the most part, I don't endorse laws that mandate the reporting of past child abuse against the wishes of the patient (--not that anyone has ever asked me, but hey, it's my blog so you get my opinion) --at least not by psychiatrists as an after-the-fact event. In an Emergency Room with an injured child victim it's a different story and it's hard to imagine that it would ever be in the best interest of the patient to send them home to a violent setting.  For psychiatry, I believe that such laws prevent people with problematic behaviors from getting help, and they prevent victims of abuse from having therapy if they do not want  the scrutiny of the legal system or the turmoil that may bring if family members were involved. If a patient reports an active urge or plan to commit a violent crime,  taking action is generally in that patient's best interest as well as society's and violating confidentiality may be the clear right choice.   

In the vignette given in the Badly Behaved Behavior Health Care Practitioner, the situation asked whether a therapist should report a patient who is also a therapist who is having a sexual relationship with an adult patient.  There is no "law" about reporting such behaviors (at least not in our state), though some Licensing Boards  make statements that professionals are required to report colleagues who are impaired or incompetent.  Some of our commenters wrote in to say that the therapist should be reported-- that patient safety should come first.  My thought was that when a patient walks in the door for treatment, she is a patient and not a colleague and such licensing mandates do not pertain the way they would if the therapist in the next office knew illicit sexual activity was going on.  It seems to me that the spirit of such mandates is to get the licensee help, something she is already doing by seeking care, and that these mandates were probably not made in the spirit of trumping confidentiality with patients, but I could be wrong.  Reporting the therapist might help prevent future harm to patients, but in the big picture, it means that badly behaving psychotherapists can never get help in a confidential setting. 

  I suppose one way to get help for a misbehaving therapist to get help would be to seek care from a therapist in another specialty-- there is nothing in the Licensing Board mandates that suggests a licensee needs to report an incompetent member of another specialty or profession, so a social worker who is having an affair with a patient could perhaps seek treatment from a psychologist or a psychiatrist?    And the other thing I wondered about-- does reporting the therapist necessarily help the current victimized patient?  An adult patient, after all, is free to report her abusive therapist.  If she chooses not to, perhaps there is a reason-- perhaps it would blow apart her marriage, or perhaps the inquiry that comes with such events would leave the victim feeling even more victimized.  These aren't easy scenarios-- one can imagine all types of configurations-- the victim could deny the abuse/affair happened,  the victim could be thrilled to hear that a confession occurred which will help with the prosecution, or the victim could feel not at all like a victim, but like someone who chose to have a consensual relationship and does not want the attention of the therapist's disciplinary proceedings.  

These are really difficult situations.  I'm not sure what the rules are for psychologists or social workers, but for physicians the default requirement is for confidentiality and there needs to be a really good reason to violate it, and revealing a patient's secrets may leave the psychiatrist open to his own scrutiny, disciplinary action, and lawsuits.  We treat people even when they have behaviors or beliefs that are deplorable to us.  I hesitated, however, to write this, because I can think of scenarios where confidentiality in the doctor-patient relationship might warrant a breech, and I'm happy I've never been faced with one of these situations.