Speaking Ill of the Dead

I'm moving this discussion to its own post since it has little to do with mandatory employee health screening and I think it deserves its own section.

Jesse put up a link to a PBS news interview with Drs. E. Fuller Torrey and Elspeth Ritchie regarding Aaron Alexis, the alleged Navy yard shooter. This has spurred discussion about what, if anything, psychiatrists should be saying in the media about specific individuals with rumored mental illness.

I've gotten on a soapbox about this a number of times before and I don't want to be repetitive, so if you feel inclined you can search the blog for the labels "shooter psychology" and "spree killing." You can also read my Clinical Psychiatry News column about a similar situation, "Use of Psychological Profile to Infer Ivins' Guilt is Prolematic". (Titles are not my strong suit.) I wrote a followup column about this just last month when the president of the APA tweeted out a statement regarding the legal sanity of the Fort Hood shooter.

Honestly, at this point I feel like a broken record. (Oh dear, some of our readers have probably never played a record!)

In my opinion, no mental health professional should be making public statements about the legal sanity or mental state of a living criminal defendant prior to trial. Presently our APA ethical guidelines do not expressly forbid this, unfortunately. The guidelines make a generic caution against public statements regarding people we haven't personally examined in a principle known as the Goldwater rule. This has been interpreted to mean that public statements are OK as long as the professional makes an initial disclaimer that they have not personally examined the individual they're talking about.

This guideline was written and adopted before the Internet was invented, even before there were personal computers (back when people knew what 'records' were and what happened when they cracked).

I felt the time was ripe to bring this so-called Goldwater rule into the modern age, and I also felt strongly that we should include a specific caution or prohibition against public statements regarding criminal defendants. I drafted proposed language in an action paper which was later adopted by the APA. To my knowledge, the Goldwater rule is being revisited (and hopefully revised) right now.

But back to Aaron Alexis and the PBS interview. This is where it gets tricky. In contrast to the Fort Hood shooter, Jared Loughner and the Aurora theater shooter, this is a situation where people are making statements about a dead suspect rather than a living defendant. The impact on a dead person is, well, moot.

Nevertheless, there are ramifications to consider. Media statements may reinforce the notion of guilt in the public mind when the deceased was never actually tried or convicted, or any of the evidence put to the test. This was the case in the situation of the late Bruce Ivins, the anthrax mailing suspect. In that case the only physical evidence linking him to the crime was the genotype of the anthrax bacillus. This evidence was weak enough that FBI investigators were concerned it might not be admissible. He might have been innocent. The situation is slightly different for Aaron Alexis given that he was definitely at the scene of the crime and presumably the evidence of guilt might be stronger than in the Ivins case. But does that change our professional obligation to maintain respect for persons? At what point do we need to balance the real need for public education about mental illness, violence risk assessment and the pro's and con's of involuntary treatment against the distress of a surviving loved one? While public opinions about won't impact a dead suspect, they will impact the suspect's wife, children and siblings. Just ask the mother of the Columbine shooter.

This post is getting a bit long and I have other things to do, but I thought I'd spew out an initial reaction. There are also state laws about medical confidentiality which address the maintenance of confidentiality after death, but that's a topic for another post. Some confidential information might have become available to investigators when the suspect was still alive, in the heat of the incident when danger was imminent. Given that there will be no trial, we likely will never know. But these situations are bound to come up again so we should be prepared for these discussions.

HIP HIP HIPAA HOORAY! Where's My Medical Privacy?

And whatsoever I shall see or hear in the course of my profession, as well as outside my profession in my intercourse with men, if it be what should not be published abroad, I will never divulge, holding such things to be holy secrets. 
   *       *        *
Today, I"m ranting about medical privacy (now gone) and electronic medical records over on KevinMD.  The link is HERE.  Did you know that hospitals now send your medical information to the state (at least in our state), whether you want that or not? 

And while you're reading about privacy, there's a terrific article in the Wall Street Journal called Families of Violent Patients: We're Locked out of Care.

Okay, I'm going to make a confession here.  I have no idea what HIPAA is.  I don't know, I don't care.  My practice is small enough that I don't have to give out privacy notices, and I confine my "HIPAA" comments to "I don't release information without your permission."  I also note that I do release information in case of an emergency and that the state has requirements about the reporting of child abuse.  But from my take on it, HIPAA is not about who doesn't get your information, it's a long list of who DOES get your information, like it or not.  When I go to the doctor, I often cross out some of the listed entities, and tell them I don't want my information released.  But no one reads these things so it's just about making me feel like I have some control.  We all like those delusions.

Before HIPAA, doctors were not allowed to release your medical information without your permission.   There was this guy, way back when, named Hippocrates who had something to say on the matter.  Psychiatrists never did talk about your care without your permission, I remember this from before HIPAA.  

Regarding the Wall Street Journal article -- the implication here is that suddenly HIPAA prevents families from getting information about patients against their will.  I sometimes wonder if there is a reason the hospital/doctor/etc aren't plugging harder to talk with the family.  In the case of a violent patient, no doctor wants to see their patient hurt someone or die, and it's hard to imagine that if it were crucial to to share this information, a psychiatrist wouldn't say, "Listen, I can't treat you if you won't let me include your family."  The slant of the article assumes that the patient is always the sick one and that the family is well and harboring nothing but good intentions.  Perhaps the family has been intrusive, or the patient is really adamant.  Do we really want to tell a psychiatrist our private thoughts knowing they will repeat them to our family members whom we don't want to know them?  There are times when a really psychotic person won't allow communication because in the past, the family has insisted he take medication or go to treatment he didn't like, but which helped him anyway, and perhaps that was the right course of action.  But there are also times when families make the situation worse.  I don't think the issue is HIPAA, but I do imagine that part of it is that hospital staff don't have the time to work with patients and their families to help everyone come to a place where families know how to be helpful without being intrusive, and patients can feel more comfortable and respected.  These things take time (sometimes a lot of time) and if you're fighting with insurance companies for an extra day, and spending your time entering data into the computer, when a patient says "No, don't talk to my family,"  the doctor may just say "HIPAA, I can't," without exploring whether that makes sense or if there is a way the patient might allow communication about some aspects of care.  And finally, there is nothing about HIPAA that prevents family members from giving crucial information to a doctor.    

Okay, I've ranted for today.

My Day With Our State Legislature

It was a long day in Annapolis yesterday.  I was one of an estimated 1,300 people who showed up to give testimony on gun legislation.  For details, see The Baltimore Sun article.

On the public testimony, I was #162  and I went at nearly 9 pm, they were estimating 16 hours of testimony and it didn't start until 4:30 pm. My quick demographic estimates: 99% white, over 90% Male, & over 95% or those who came to testify opposed the governor's bill. The supporters, including busloads of school children, were outside rallying in the morning.

There were 4 hours of expert testimony, then I heard  4 hours of  public testimony with the same handful of messages : civil rights, why I need an assault weapons, statistics on how gun control doesn't decrease violence, I'm gonna move to another state if this passes, you're going to make me a criminal, go after the criminals and the mentally ill,  all of these measure prevent straw purchases but no one is ever prosecuted for straw purchases, this won't fix anything, and my personal favorite: the little girl who testified that if the law passed she'd have to move away from her friends, her school, and going to McDonald's.  Where were the victims of gun violence? Where were the mental health advocates?  They were part of the expert testimony -- I'll talk more about this below--but I was the only one (of those I heard) who was not giving public testimony on the Firearms Act.  I left after I testified, but it went on until early the next day --I've heard 3 AM and 6 AM. 

I got to testify around 9 pm, maybe a little earlier, thanks to our kind psychiatric society lobbyists who signed me up, even though I wasn't the designated speaker for the expert testimony. It fast-forwarded me out of a long line to get into the building and I got me a much better number than I'd have gotten myself, being that I'm not a "morning person."  I was psychologically prepared to stay until 10 or 11, so being heard by 9 was good.  I'd brought a peanut butter and jelly sandwich, a pear, and some carrots.  I resorted to water from a faucet in the rest room, and at one point, I was sitting on the floor of the hearing room with my phone charging while I tweeted, and a kind staffer offered me a chair.  I didn't want a chair, but I did ask if he could get me a cold beer. 

I had prepared three minutes of testimony, but given the numbers, they cut the time to one minute. Everyone ran over, and the Chairman, Delegate Pete Hammen, sometimes let people ramble on, and other times, cut them off.  I thought he was incredibly rude and dismissive to me.  I seem to remember going to meet with him years ago, and that he was dismissive then --not to me specifically but to our psychiatrist group.  Is this my imagination or does he not like psychiatrists?  I think I felt like our readers feel when they talk about being dissed because they are psychiatric patients; I felt dissed because I was a psychiatrist.  I pointed out to him that I was the only person there not testifying on the Firearms Bill, I was talking about HB810 --mandatory reporting of dangerous patients.  He'd been more patient listening to  gun-owner after gun owner make one of the same 4-5 points about why they oppose the legislation.  Me, as the only one giving testimony on a different bill, he cut off repeatedly and was quick to dismiss.  In all fairness, it was nearly 9 pm and everyone was fading, some of the legislators had left, and  I can't imagine what they were like at 3 AM.  I did go over my allotted time and I did give my testimony as a story, not as bullet points, something I knew might be risky. The bill's sponsor had been in and out of the hearing room, but during my testimony, he was gone. 

There was on ob-gyn who testified in favor of the bill --one of only 3 pro-gun control advocates I heard --  and they were much nicer to her.  I guess on the positive side, someone in the room applauded me -- no one else was applauded while I was in the hearing room -- and one of the legislators said, while I was speaking, "That's why we shouldn't pass this."  So I guess it was worthwhile.  No one had any questions for me, but Hammen phrased it as "Any questions? Next." And they were all understandably a bit zoned out by that hour.  One person gave testimony that she'd been mistakenly diagnosed with a mental disorder and could never get a gun because no one would say the doctors at the hospital were wrong, and this was part of the Firearms Act.

By the way, when someone (? I think it wasn't one of the bill's sponsors, but I missed the introduction) described HB810, he described the three Tarasoff options and said this bill would require mental health professionals to tell the police if there was a specific threat against someone else. He proposed it as a tightening of the Tarasoff requirements, while the HB810 actually undermines Tarasoff.   In fact, the bill requires mental health professionals to report to the "Director of Mental Hygiene" : a nonexistent agency.  Perhaps they meant MHA or DHMH.  The Direct of Mental Hygiene then decides whether to tell the State Police for the purpose of preventing gun sales (so reporting to the FBI NICS database, I assume?), who then decides if they should contact the local police. 

As far as the expert testimony went -- the first 4 hours of the proceedings --Dr. Brian Zimnitsky from the Maryland Psychiatric Society did a great job, and an internist testified who also did a wonderful job-- he described that 1/4 of his patients have psychiatric issues and how hard it is to get people in to see psychiatrists, how many don't take insurance and how clinics aren't open late for people who work, and the long waits.  And he was very articulate about how the process to get your gun back doesn't/won't work because psychiatrists  won't certify people to use guns, either because they are liberal urbanites against gun ownership, or because they won't accept the liability.  Dr. Zimnitsky did a good job of re-iterating that with a little more detail about what it is we can do.  It was very confusing because the Firearms Act was the focus of attention, yet there were other mental health issues which got no space for discussion.  And most of the testimony was about the details of guns and assault rifles and statistics about how gun control effects morbidity and mortality.

Overall, Dr. Zimnitsky was the only psychiatrist, and there were 2 psychologists and 1 lawyer from the Maryland Disability Law Center -- in 4 hours of expert testimony, and the 4+ hours I watched of public testimony.  Is there anyway to get a stronger psychiatrist presence at the table?  These lawmakers clearly don't understand the issues, and I think it's hard because they seem to have their minds made up about psychiatric patients and either they are not open to learning, or we're not doing a good enough job explaining.  Even with the Emergency Petition issue that came up, it sounded like EP's happen when a doctor files one, and there was no mention of the fact that a family member or neighbor can easily obtain one, and then if the professional in the ER doesn't have enough information, they may want to hold a patient for a day or two to observe and clarify whether they are safe. In this case, a person will be deprived of a civil right without any due process. This was an 11th hour amendment that was brought into the Firearms Act on the night it passed the state senate.

There was nothing mentioned about doctor-patient confidentiality and how this is necessary for psychiatric treatment to ensue.  The point was made they times that using a 30 day cutoff for reporting would affect eating disorder patients who aren't dangerous, but I think the point should be that reporting voluntary patients forces physicians to violate the doctor-patient confidentiality that is necessary for psychiatric treatment it and  deprives people with mental illness of a civil right and that this singles out psychiatric patients as the only group of people who can be deprived of civil rights without any legal due process.  It's all terribly stigmatizing and may well serve the opposite of the intended effect: to leave people fearful of psychiatrists and less willing to get help.  And it's striking that HB810 only applies to mental health professionals and no other health care provider is being asked to report dangerousness.  I wasn't really sure by then end of all of it if the 30 day voluntary inpatient reporting was still part of the bill passed by the senate; it was twice mentioned that this had been removed.  We need to move the terminology from "the mentally ill" to "those who are dangerous" for any reason.

It's amazing that there is nothing about substance abuse, that you can go for eight rehabs, and still have your arsenal. 

In terms of actual safety issues, I think it might be helpful, though I imagine it's too late, to have a  process by which all physicians are "allowed" (as opposed to required) to violate confidentiality and the police are "required" to investigate and confiscate weapons then have a quick legal process that would ensue to return such weapons if they were confiscated in error.  This could be used for psychiatric patients, substance abusers, or simply angry, mean people who are making threats or behaving erratically.  And because it wouldn't be about just reporting to a database, it might serve as a mechanism to get guns out of the hands of those who have them illegally, something none of this legislation addresses.

If you read through all this, thank you.  Eleven hours yesterday and I needed to vent.  It was really fascinating and I'm so glad I went.

Why You Should Care About FISA

I know everybody's been concerned about the fiscal cliff lately, but meanwhile something important has slipped under the radar that could be more serious than that for all of us.

Last week both houses of Congress overwhelmingly passed a five year extension to the Foreign Intelligence Surveillance Act (FISA), the law which allows warrantless eavesdropping, wiretapping and monitoring of anyone who may represent a threat to national security. The renewal has been signed into law already by President Obama.

Under this act, government investigators can datamine telephone, email and other online communications pretty much at will. Congress voted down proposed amendments to allow mandatory annual reporting of how often this is done or who this is being done to.

I know this sounds a bit histrionic, but consider this statement from Rand Paul last week:

“Some may ask well, why go to such great lengths to protect records? Isn’t the government just interested in the records of bad people?” Paul said. “Well, to answer this question, you must imagine your Visa statement and imagine what information is on your Visa statement. From your Visa statement, the government may be able to ascertain what magazines you read, whether you drink and how much, whether you gamble and how much, whether you’re a conservative, a liberal, a libertarian, whom do you contribute to, who is your preferred political party, whether you attend a church, a synagogue or a mosque, whether you see a psychiatrist, what type of medication do you take.” (emphasis added)

So this isn't something that, as a mental health professional, you can just shrug off since you're not 'one of the bad guys.'  Particularly now since the public and the government have pressing interests in liberalizing the flow of information between public safety and mental health systems in light of all the recent shootings. The FISA extension grants that authority. If a mental health patient could be deemed a general threat to public safety (read: national security)...well..think about it. Read the full Rand Paul link.

I know everybody is concerned about CPT code changes and impending reimbursement issues, but there's other stuff going on too right now. If you would like to know how your Congressman voted on this issue, you can read the roster here.

[My first post about this topic was in April 2006. It was the seventh of nearly 2000 blog posts we've put up. Seven years later, nothing much has changed.]

The Secret Lives of Patients

In yesterday's post on e-prescribing, the issue of patient confidentiality came up in the context of doctors being able to see a patient's full medication history in an electronic program, and one commenter brought up that she doesn't necessarily want to tell her shrink about a yeast infection, perhaps because she finds it embarrassing.  The writer of the post, a guest blogger, suggested that this might lead to useful information that should be addressed in therapy, for example the patient's sexual life. 


Years ago, I remember being a bit taken back when a patient brought up some rather problematic (to him) sexual issues in his marriage.  It wasn't the nature of the issues that surprised me (I spent more than a decade consulting to a sexual behaviors unit and I spent several months of residency training on an inpatient sexual disorders unit: it takes a lot to shock me).  What surprised me was that this was the first I was hearing about this issue after seeing the patient for 5 years of psychotherapy.  He had a secret life.


There's not really much to do about this.  One can only help people with the things they bring forward as problems, and we don't, as one commenter pointed out, get notified by the bars every time a patient drinks, or doesn't exercise, or begins yet another dysfunctional relationship, or surfs over to a porn website.  Oh, and I am so glad.  


When it comes to hiding medications, or treatments, then perhaps that's different.  Is it okay for a patient to see one doctor for a Xanax prescription, and if he's not happy with the dose, to see another doctor for more Xanax?  If he's not selling it, I don't think this is illegal, but we'd (meaning docs) all agree that this is wrong, that the patient is deceiving us, and wouldn't  prescribe to someone doing such things.  Is it okay for a patient to hide the fact that he has AIDS, a condition with known psychiatric complications, from his psychiatrist?  We might say that if we're not aware of the medications a patient is taking, then we can't be liable for the interactions, but please-- in therapy it's not just about the fears of lawsuits between strangers, it's also about not wanting to see your patient get sick for completely preventable reasons.


So where is the line?  Is it okay to hide manic behaviors from a psychiatrist---it's none of his damn business if I wanted to sleep with 8 gorgeous women last night and buy them all diamond rings!  Is the psychiatrist entitled to know every behavioral transgression? That he's worth millions when he's getting a discounted fee from the shrink?  That mom thinks he's getting sick again?  Every fantasy that pops into his head?  Is it okay to withhold your dreams from your psychoanalyst?

I won't go on.  You tell me where the exact line is.  I have no idea.

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. 

Privacy, Please?

Anon commented on my last blog post about clinical uses for Siri on my new iPhone:

"From the details in your contacts, it knows your friends, family, boss, and coworkers. "

That was from Apple's web site, regarding Siri. If you are using Siri for clinical purposes, know that Siri tells Apple everything. Siri--usly, how do you protect patient confidentiality if Siri/Apple knows so much? Sure, paper files can be stolen, so can cell phones. E files are vulnerable to all sorts of breaches. But what would you do if your iphone 4S fell into the wrong hands with all that clinical related stuff on it? Not quite the same as asking Siri where the closest dry cleaner is.

I find it kind of interesting what people worry about.  I have hundreds of contacts in my phone.  My husband is labeled no differently than my co-workers, than my friends. than my patients.  I'm not sure what it means to have one's iPhone "fall into the wrong hands."  I live in Maryland, so I'm not sure what Apple in Cupertino would do with my information, maybe send iPhone advertisements to my contacts? 


The issue of clinical information is  something I hadn't thought about.  I downloaded an app yesterday specifically for GoogleDocs, and it imported all my documents.  We wrote our book on this, so every chapter and every revision is now accessible on my phone, not to mention my posts for Clinical Psychiatry News and an unpublished novel or two.  I downloaded the app so I would have the option to dictate patient notes.  This would leave clinical information potentially accessible via a cloud or on the phone.  I'm not sure it's all that interesting.  My notes are usually pretty boring.  But I did think that I would print them and then delete, rather than have to deal with keeping charts in order in cyberspace.


I guess I find it interesting that people worry about issues of confidentiality with total strangers in places where it's hard to imagine a use for what is likely to be pretty boring information.  On the other hand, we live in a world where electronic medical records now exist in all types of venues.  I work at a large hospital.  I can access the records of any patient seen there, and if I go to a physician there, his notes about me will go onto the EMR. At this juncture, outpatient psychiatry notes are not on the EMR, just a record of the fact of the appointment (which does say "community psychiatry," and the psychiatrists add their medications, but this will change soon, I'm sure, and psych notes may well be part of the hospital's coming new system.  The patients are not asked, and the doctors they see have access to all records without getting prior permission.  There are very specific rules about whose records a healthcare worker may look at, and people have been fired for looking at their neighbor's records, but someone has to catch you.  This means that a patient would have to ask someone with access to the system to see who had accessed their records, realize that one of those people was not someone involved with their care (Hey, that's my new boyfriend!) and then complain to the hospital and initiate some type of complaint (I think).  There is nothing inherent in the system that prevents one person from looking at the medical records of their coworkers, boss, ex-husband,  or even their doctors, aside from their own conscience and the fear of being caught (and reprimanded).  At this point, and for this reason, I have chosen not to get care at the institution where I work.  


Our state is also working on a system, called CRISP, that lifts medical records from all providers to a centralized system.  You can opt out, but you don't need to opt in: do nothing and your healthcare information goes in.  I opted out, and I got a letter telling me they would keep my information in case I changed my mind.  Wait, so presumably my doctor will be feeding my information into this cloud, without asking my permission?  I don't really know how this will work-- from the shrink standpoint-- because no one has contacted me about putting my professional records into this system, and since my records are all handwritten on hard copy charts, I don't know how this would play out. 


Somehow we've come to think that electronic medical records will mean better care.  I could be wrong, but I'm not really sure why we think that.  It seems to me that the burden this will place on the physician to attend to the devices and the demands of this type of documentation, will consume time and detract from time with the patient.  As is, I've noted it takes about 5 times as long to send an e-script as it does to write a prescription, starting with the fact that the e-system my hospital uses logs me out every 7 minutes.  I'm told this can't be modified, and I'm not aware of any doctor who sees patients faster than every 7 minutes.  Secondly,  an electronic system is only as good as the information it propagates, and I've seen lots of mistakes in the electronic medical records.  The internist notes that the patient is seen by psychiatry and takes Restoril.  Wait, my patient is taking Restoril?  I didn't know this..oh, I think he meant Risperdal.  By my calculation, the number of lives saved by electronic information that is provided when the patient can't provide it himself, will about equal the catastrophes from the propagation of incorrect information.  


So I should be worried that Apple can see my contacts?  My brother, who is an original Caltech computer geek, told me recently that since I have a webcam, it's possible that someone could hack my computer and watch me through my camera.  At first, I was alarmed at the possibility, but then I thought about this for a moment and said, "Why would someone want to watch me type?"  Nothing that exciting is happening here.  Sometimes I don't wear makeup, here and there I stick out my tongue and lick my lips, and okay, in front of the computer, when I'm writing, I kind of talk to myself.  If this might interest someone...

I seem to have my own list of things to worry about.  That someone might hunt my patient information out from the cloud just hasn't yet made my list. 

Podcast #57: A Matter of National Security

We kept this podcast a little shorter and strangely enough, we didn't ramble or argue or rant. Maybe it was a little boring?

Clink wanted to talk about a report she found online about Dr. Bruce Ivins, a researcher who was a suspect in the 2001 deadly anthrax attacks via the postal mail. Dr. Ivins died of suicide in 2008, and a group was commissioned to look at the process for obtaining security clearances, and where that process may have weaknesses. This gave Clink the opportunity to talk a little about issues that arise when psychiatrists get requests from the government for information about whether their patients pose a threat to national security.

Our links for this portion of our podcast are: A Wikipedia article about Dr. Bruce Ivins and the APA's official document called Psychiatrists’ Responses to Requests for Psychiatric Information in Federal Personnel Investigations.

Our last topic was about the management of pregnant women with opiate addictions and we discussed the use of methadone versus buprenorphine and the effects on the baby. Roy discussed an article from the New England Journal of Medicine, "Neonatal Abstinence Syndrome after Methadone or Buprenorphine Exposure."

At the end of the podcast, we mentioned that we're coming up on our 5th anniversary of Shrink Rap in late April. Roy had a surprise gift for us! Mugs with the cover of book on them! This was a fun gift. And I had brought chocolate ducks. But of course we took a picture.
Thank you for listening. Please do write a review on iTunes!

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This podcast is available on iTunes or as an RSS feed or Feedburner feed. You can also listen to or download the mp3 or the MPEG-4 file from mythreeshrinks.com. Thank you for listening. Send your questions and comments to: mythreeshrinks@gmail.com.

Googling and Oogling

We've been talking about Psychiatrists and Facebook here on Shrink Rap and it got me thinking about psychiatry and technology. I always think of the internet as kind of public turf. Can it be "wrong" to Google someone? It's not illegal, it's not hard, and the stuff is all in the public domain. People will sometimes mention they've Googled me to find my phone number. I don't often Google patients, but once in a while. Someone once told me about their brother's murder in an international scandal and it sounded a bit weird, so I Googled (--the brother had been murdered and there was some mention of the international issue). But is "wrong?" I'm perplexed.

In a Psychiatric News story from July, Jun Yan writes in Psychiatrist Must Beware the Perils of Cyberspace:

Recently, APA's Ethics Committee gave a brief recommendation on whether it is ethical for psychiatrists and residents to Google their patients: "'Googling' a patient is not necessarily unethical. However, it should be done only in the interests of promoting the patient's care and well-being and never to satisfy the curiosity or other needs of the psychiatrist" (Psychiatric News, May 1).

On the other side of the coin, patients may Google their psychiatrists and not only uncover their professional credentials but also dig into their personal information, opinions, and attitudes. Many psychiatrists have blogs, Facebook pages, and a chat-room presence that patients could uncover, sometimes anonymously.

Jacob Sperber, M.D., discusses the ethical and therapeutic pitfalls that appear when psychiatrists and patients Google each other. Credit: David Hathcox

"Patients and psychiatrists secretly Googling each other raises all kinds of legal, ethical, ideological, and personal concerns," Jacob Sperber, M.D., director of the psychiatry residency training program at NCUMC, told the audience. He believes that searching and gathering information about a patient behind the patient's back potentially violates the patient's autonomy and dignity and breaks the trust the patient has in the psychiatrist. It may be a violation of the patient's privacy, even if the psychiatrist's intention was to provide "zealous care."

Hmm, I'm not so sure about this. Why is it okay for a patient to Google me, but not okay for me to Google them out of curiosity? Shouldn't there be some control over what's up on the internet about us (meaning all of us humans)?

What do you think?

Online Access to Prescription Medication History

I saw a headline this morning that the California attorney general is moving to provide instant access to a patient's prescription history for doctors and pharmacists (regulatory boards and law enforcement organizations currently have ready access to this info).  

State Atty. Gen. Jerry Brown unveiled a plan Wednesday to provide doctors and pharmacists with almost instant Internet

 access to patient prescription drug histories to help prevent so-called doctor shopping and other abuses of pharmaceuticals.

Brown told a Los Angeles news conference that the state's prescription monitoring is a "horse-and-buggy" system that needs significant improvements because it now can take healthcare professionals weeks to obtain information on drug use by patients. That delay can allow some patients to get large quantities of drugs from multiple doctors for personal use or sale.

"If California puts this on real-time access, it will give doctors and pharmacies the technology they need to fight prescription drug abuse, which is burdening our healthcare system," Brown said.

The database, known as the Controlled Substance Utilization Review and Evaluation System, contains 86 million entries for prescription drugs dispensed in California.

I have mixed feelings about this issue.  Maryland passed a similar bill this past session to study such a program.  There is a very serious problem with abuse and diversion of controlled medications, such as Percocet, OxyContin, Lortab, and Xanax.  It is indeed very easy to get scripts from duped physicians and nurse practitioners and PAs, get it filled, and then sell it on the street for a 1000-5000% profit.  We need methods to control this.

The flip side is the risk of privacy violation.  Patients could have their privacy breached.  So, how much are we as a society willing to give up to combat this problem?

My suggestion:  Build in banking-level protections, provide patients access to their own histories, provide patients the ability to permit or deny access on an individual basis (so that they have control over access), and permit patients to see who has accessed their records.  Also, provide protections to prescribers and pharmacists which allow them to not prescribe or fill a medication if the patient refuses access to their history.

This provides a greater amount of control over access to personal info, while still providing the ability of prescribers and pharmacists to exercise careful judgment about the medications they write or fill.

I'm not totally sold on this solution, but it does seem to be a better compromise than the big brother approach.  I'd like to hear your thoughts on this difficult problem.  Please add your comment below.

The Shrink Next Door

This is our 600th Post!
Lately my neighbors have been apologizing to me, which feels a little bit weird. We'll have brief (OK, sometimes not so brief) conversations and they end them by saying something to the effect of, "I'm sorry to chew your ear off," or "I know you're off duty, so I'm sorry about that," or words to that effect. They know I'm a psychiatrist so I guess they think they're burdening me when they do the normal problem-sharing thing that goes along with being a friendly neighbor. Now, it's possible that I get more than the usual share of mental-health related problem sharing because they know what I do for a living. And it's true I know lots of stuff about who in the neighborhood is on which medication, or who would never in their life take that particular medication, or who is looking for a psych referral (I give them names but they rarely follow through), just because of what I do for a living. But it doesn't feel like they're burdening me. I like my neighbors. I've never had a bad one, and that's pretty unusual considering how long I've lived here.

That being said, I can't say that I've ever gone to my mechanic neighbor for car advice or to my hair stylist neighbor for coloring advice (although Dinah probably thinks I should) but that's not because I don't think they'd help me if I asked for it. It just never occurs to me to ask. It is nice to know though that any one of those folks who apologized to me for "problem dumping" would be just as quick to listen to me if the tables were turned. That's just being a good neighbor.

My Patient, Myself

I saw this abstract and wanted to post it. Entitled Psychiatrist Attitudes toward Self-Treatment of Their Own Depression, it's a survey conducted of Michigan psychiatrists regarding their opinions toward self-prescribing. A survey of more than 500 Michigan psychiatrists showed that more than 40% would medicate themselves for mild to moderate depression and that 15% had actually done so in the past. Seven percent of psychiatrists said they would treat themselves for severe depression or depression involving suicidal ideation.

The AMA code of medical ethics states: "Physicians generally should not treat themselves or members of their immediate families...It would not always be inappropriate to undertake self-treatment or treatment of immediate family members. In emergency settings or isolated settings where there is no other qualified physician available, physicians should not hesitate to treat themselves or family members until another physician becomes available. In addition, while physicians should not serve as a primary or regular care provider for immediate family members, there are situations in which routine care is acceptable for short-term, minor problems."

So why or when would a doctor consider treating himself? I don't know Michigan well, but I'd guess they probably have the same shortage of psychiatrists that other Midwestern states have. If you're a depressed psychiatrist you may be the only game in town. Maybe he'd be concerned about privacy and information-sharing among colleagues.

Or maybe the AMA would consider mild clinical depression to be a "short-term, minor problem" for which the self-treatment exception would apply. There are probably hundreds of physicians who at one time or another have written antibiotic prescriptions for themselves or for family members. I wonder if this also applies to prescribing for family pets? Should a psychiatrist prescribe Prozac for his obsessional cat? Thorazine for the nervous dog? A recent survey of neurologists showed that more than 90% agree that it would be appropriate to self-prescribe for acute minor illnesses. Another survey of young Norwegian physicians found that 90% had self-prescribed in the past year.

Don't ask me what Michigan surgeons would do...

Let Me Make Myself Perfectly Clear

Over the last two weeks, ClinkShrink and I have written a series of posts about the flow of information between therapist and patient, and the flow of information between those parties and their blog readers! Let Me Tell You About Myself looks at the issue of therapists divulging to patients that they themselves have a mental illness. Let Me Tell You About My Patient went on to talk about confidentiality issues in therapy when the psychiatrist has a blog, and Let Me Tell You About My Doctor asks whether it's okay for a patient to write blog posts about their physicians. These posts received a lot of comments, discussion, and brought up a lot of feelings on the part of the both our readers and we three bloggers.

Let me tell you that while I love to stir things up a little, I've been surprised.

To be clear: I can only recall a few posts of our now 506 (yup) posts where I discussed a patient scenario-- the descriptions, the demographics and the issues at hand were all confabulated to the point of fiction and the patients were not recognizable, they are essentially literary Avatars. The posts were about me and my feelings. Of the few (maybe 2-3) posts where I've painted a scenario, the possibility arises that patient could visit the blog and say, "Hey, here's my doc, and I'm a criminal, and she wrote a post about being uncomfortable about treating someone who's a criminal (See: The Patient As Criminal) but I don't drive a Porsche, or wear a Rolex watch, or have 3 kids, or even own a blue suit." The "patient" might have some discomfort learning that I'm uncomfortable (hmmm, Tony seems to know Dr. Melfi was pretty ill at ease).

The truth is, I feel a twinge whenever I so much as mention the existence of a patient. A what if scenario.... so remember my post about my chaotic day where I told a patient (no details about patient at all) that I'd return her call but I then threw my cell phone, with her phone number, into my washing machine? I wondered, what if this patient told all her friends, "I called this ditzy shrink who lost my number in her submerged cell phone," and then her friends saw my post, they'd know who her doc was! Funny, but I don't worry about what if she runs into a friend in my waiting room, who then knows who her shrink is.

I guess the real issue here is one of discomfort, my own and yours, and the theoretical discomfort of any patients who stumble across this. Readers have made comments discussing how they wouldn't like their psychiatrists to have a blog, how they'd worry about their confidentiality, and how it might be uncomfortable to know their psychiatrist in the way that Clink, Roy, and I have let ourselves be known on Shrink Rap. Mine is a more intimate and playful voice than I use with patients. Clearly I might be a little uncomfortable sharing this world depending on my patient's response, and truly I hope I don't make my patients uneasy.

I think the bigger issue is one of Who we Hope our Docs will be outside the office and how much a professional is obligated to live their personal life to a set of fantasized standards-- we'd all like to think our physicians are upstanding, totally moral, law-abiding, healthy-living, paragons of practice-what-they-preach and the existence of a blog threatens that fantasy. It's just docs and shrinks, it's all the folks we see as taking care of us from our yoga instructor to our elected officials and many of us have feelings about what our presidents do with their cigars.

There is no issue at Shrink Rap about ethical violations, power struggles, damages, breach of trust, or lawsuits-- things that came up in our comment section. It's all about comfort and discomfort, I saw the issue as being smaller than the discussion grew it to. This is not to scold, it's just to express my surprise.

Finally, my thoughts about patients blogging about their docs. If the doc is written about in a derogatory way with any possible identifying information, then I think there are better ways of complaining about a doc. If you're writing about your sessions, if your blog post is therapy for your therapy (!), and your shrink is identifiable, I guess I think you should let that be known to the doc. I don't believe that because someone has a psychiatric disorder, anything they say is immedicately discounted. I just don't. Mostly, it's about human courtesy and mutual respect. We're still all just figuring out the rules here.

So Roy asked me not to stir everyone up. I hope this is okay.

And please remember to tell us who you are on our sidebar.

Let Me Tell You About My Doctor

Wow, Dinah brought up a great topic. She said: "So how come it's okay for patients to blog about their psychiatrists, without disguise, without permission, without hesitation?"

I just had to address this because this one-sidedness (if that's a word) is something I see in the correctional world. Here's how it happens:

Inmate X gets released and goes to the media. He/she alleges that the correctional facility, as well as correctional physician or nurses, are horrible incompetent sadistic people who provided terrible care. Inmate X is quoted in the newspaper along with detailed allegations of how he/she was mistreated. Because of healthcare privacy laws, the news media cannot be given factual information from the medical record which directly contradicts the inmate's claims. The article states only that 'the facility/administrator declined to provide information about inmate X citing medical confidentiality'. Thus, it appears that someone is covering up something.

Let me be clear that I have never personally been involved in one of these scenarios, but from my professional colleagues I can tell you that it happens. Patients are allowed to reveal their own information, but we cannot do the same without their permission. Over the course of time I've seen some pretty astounding self-revelations: former patients who have gone on TV talk shows to talk about their crimes and subsequent psychiatric care, patients who have had their offenses turned into made-for-TV movies and television episodes, and patients who have written books about their issues. (I made a cameo appearance in one book but was not mistaken for a nun. The author did not seek my permission.) To my knowledge there is no case law to suggest that this behavior constitutes any kind of de facto waiver of confidentiality.

Now we come to the blogosphere. Here, the landscape may be very different. The blogosphere is a public forum of the n^th magnitude. There are numerous cases here in the US in which bloggers, and even their service providers, have been found liable for libel or defamation. I refer you to the Internet Journalist for a very nice little overview of case law surrounding invasion of privacy and defamation on the Internet.

So to get back to Dinah's point, it may really NOT be OK for patients to blog in a negative and undisguised fashion about their mental health providers. The real question is: how do you decide what to do about it? It's a situation similar to the one I discussed in Fully Charged Battery, where I talked about filing criminal charges against patients. If they're still your patient, you will certainly damage what little alliance you may have left by filing a libel suit against them. You could bring it up as a therapeutic issue within session, but then you've created a situation where the patient knows you've read their blog and there are things going on outside the session. Or you could decide that a patient who posts negative information about you is simply someone you don't want to continue treating. Regardless, it's a nasty situation. Patient who blog about their doctors/therapists may do well to consider the same precautions that health care bloggers follow.

Tarasoff Overview & Inservice

Dinah's post Johnny Get Your Gun generated a lot of interest in and comments about public safety and the mental health professional's duty to warn or protect. Some readers commented and cited the Tarasoff case, which made me think a quick inservice was in order. Many of our readers aren't mental health professionals or aren't American, so it's not really fair to leave them without any context for the discussion. Also, many American mental health professionals have heard of Tarasoff but may not really be aware of the limitations or extent of this decision.

First some background:

In 1969 a Berkeley college student, Prosenjit Poddar, became enamored of co-ed Tatiana Tarasoff. He pursued her to the extent that police got involved. They detained Poddar and referred him to the college counselling center where he was seen by a psychologist. The psychologist consulted with his superior at the center, and both decided that Poddar did not need to be hospitalized. Poddar later shot and killed Tarasoff.

Tarasoff's family sued the university, the police, and the mental health professionals for failing to hospitalize Poddar. The suit was originally dismissed by the California Supreme Court (in a case now known as Tarasoff I) because all of the defendants were government employees who were acting within their discretion regarding the hospitalization decision. Thus, they were covered by government immunity. Also, at the time no mental health professional had any duty to a third party---the clinician's only duty was to the patient. The suit was dismissed without prejudice, meaning that the plaintiffs were free to refile the suit on other grounds. The California Supreme Court hinted in their opinion that if the suit had been filed on the grounds of failure to warn or protect the defendants would not be immune from suit. The plaintiffs took the hint and refiled on these grounds.

This led to the case known as Tarasoff II, in which the California Supreme Court found for the first time that mental health professionals had a duty to protect (not just warn) third parties of danger from their patients.

Now the thing to remember about case law is that opinions are only binding on the regions that the appellate court has jurisdiction over. The Tarasoff cases were decided by the California Supreme Court and were binding only in California. Only the U.S. Supreme Court can issue opinions that apply to the entire country. So how did this idea spread across the country?

If I were a complete cynic I'd answer: Blame it on the lawyers. Being only a partial cynic, my answer is that the creation of this new duty created a new fertile ground for recovery in case of injury. A flurry of cases in other states followed the reasoning in Tarasoff and laid the groundwork for mandatory warnings in other jurisdictions. A nice overview of the current state of national Tarasoff laws can be found here.

Fortunately, the Shrink Rappers live in Maryland. Our professional organization took a proactive approach to this impending issue and crafted a Tarasoff duty by statute rather than waiting for it to be created through a lawsuit. It was designed thoughtfully and narrowly so the duty for our clinicians is not as broad as that which is implied in the California cases. It can be found in Courts and Judicial Proceedings (granting immunity for certain actions) and it states:

§ 5-609. Mental health care providers or administrators.

(a) Definitions.-

(1) In this section the following words have the meanings indicated.

(2) "Mental health care provider" means:

(i) A mental health care provider licensed under the Health Occupations Article; and

(ii) Any facility, corporation, partnership, association, or other entity that provides treatment or services to individuals who have mental disorders.

(3) "Administrator" means an administrator of a facility as defined in § 10-101 of the Health - General Article.

(b) In general.- A cause of action or disciplinary action may not arise against any mental health care provider or administrator for failing to predict, warn of, or take precautions to provide protection from a patient's violent behavior unless the mental health care provider or administrator knew of the patient's propensity for violence and the patient indicated to the mental health care provider or administrator, by speech, conduct, or writing, of the patient's intention to inflict imminent physical injury upon a specified victim or group of victims.

(c) Duties.-

(1) The duty to take the actions under paragraph (2) of this subsection arises only under the limited circumstances described under subsection (b) of this section.

(2) The duty described under this section is deemed to have been discharged if the mental health care provider or administrator makes reasonable and timely efforts to:

(i) Seek civil commitment of the patient;

(ii) Formulate a diagnostic impression and establish and undertake a documented treatment plan calculated to eliminate the possibility that the patient will carry out the threat; or

(iii) Inform the appropriate law enforcement agency and, if feasible, the specified victim or victims of:

1. The nature of the threat;
2. The identity of the patient making the threat; and
3. The identity of the specified victim or victims.

(d) Patient confidentiality.- No cause of action or disciplinary action may arise under any patient confidentiality act against a mental health care provider or administrator for confidences disclosed or not disclosed in good faith to third parties in an effort to discharge a duty arising under this section according to the provisions of subsection (c) of this section.

[1989, ch. 634; 1997, ch. 14, § 9; 1999, ch. 44.]

The key points compared to the Tarasoff cases are that the statute requires imminent danger to an identifiable victim. Clinicians are not required to foresee danger to the general public, nor are they required to predict dangerousness into the indefinite future. Clinicians are given the discretion either to warn the victim or to carry out a protective plan; hospitalization is not mandatory. Regardless, a decision to break confidentiality is shielded from liability if the clinician is acting in good faith.

Thank You For Sharing?

In the most recent issue of Psychiatric News it was announced that the Substance Abuse and Mental Health Services Administration is giving out $7.2 million in grants to develop or expand six jail diversion programs in various jurisdictions throughout the country. Some of the funds will be used to target repeat offenders, people with mental illness who get arrested as often as once a month. This is good news for both the correctional system and for those suffering with mental illness.

However, consider this part of the article which refers to the sharing of information between systems:

The next step will be linking the databases of all the elements in the system to better track offenders. Each has its own information system, but the systems are not tied together, said Alvarez.

"Someone being seen by a mental health team can be arrested, but the team won't know [the person is] in jail."

With the SAMHSA grant, the mental health center would be notified immediately and contacted again for follow-up before the person leaves jail. In between, the judge at the initial hearing will also have better information to direct disposition of the case. (italics inserted by me)

As a clinician, I'm in favor of anything that helps me provide care to my patient. If I can quickly get clinical and treatment information from a mental health center this is a good thing. I am more concerned when that information slips out of the realm of the therapeutic intervention and into non-clinical realms. Consider this hypothetical situation:

You are a successful small business owner who happens to have bipolar disorder. For years you have been responsible for seeing your doctor regularly, taking your medicine, and generally staying well because you like being well. No one has ever needed to tell you to do this. One day, after George W. announces his intention of invading Lichtenstein for harboring international tax fugitives, you decide to drive to Washington to take part in a peace demonstration. You are arrested, along with six of your Blue State terrorist-hugging friends, and taken to the D.C. jail. You know it's not a good idea to go without your lithium for a few days, so you mention this to the nurse doing your intake assessment. Three days later, at your bail review hearing, the judge decides to release you on bail. The judge announces, in open court, that due to your bipolar disorder you will be required to attend regular appointments with your doctor and take your medication. If you fail to do this, you will immediately be picked up and returned to jail. Your first thought is: "How the (insert expletive) did this judge know this and WHO gave him/her the right to announce it??"

Nevertheless, you bail out and return to your doctor. Upon arrival to your first appointment after arrest, the first words out of your doctor's mouth are: "So, what's this I hear about you getting arrested for being a Blue State terrorist-hugger?"

This hypothetical speaks for itself. Now, that being said the work-around for this problem is quite simple. Ask for the patient's/defendant's/consumer's permission. I usually don't hear this mentioned when people discuss information-sharing between systems. Some mental health clinics have another way of addressing this, by talking to the patient in advance about disclosures in the case of arrest. I think advance directives are a good way to solve this problem.

Roy: Random stuff

Cute animated cartoon about NSA wiretaps. [Gelwan]

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Sokoto evacuates lunatics from streets: It's interesting to see that, while some in the US and other developed countries debate whether folks with mental illnesses should be called patients or consumers or clients, there are other countries which use more quaint terms.

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Botox smiles on depression: "A small-scale pilot trial, published in the May 15 journal Dermatologic Surgery, found that Botox injected into frown lines around the mouth or in forehead furrows of 10 women eliminated depression symptoms in nine of them and reduced symptoms in the 10th." And in a related story, researchers report successful treatment of epileptic seizures using botox injected into every muscle of the body.

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Wellbutrin approved for Seasonal Depression: I expect now to see tons of Wellbutrin commercials every Thanksgiving... " 'Tis the season to be jolly..."

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HR 4157: Electronic Health Records Debate

[Cartoon by Steve Greenberg, posted with artist's permission.]

Nick Meyers, the APA Director of Government Relations, sent the following memo out yesterday, alerting psychiatric physician members about pending national legislation on electronic medical records and their impact on privacy and confidentiality of personal health information. I'll try to post more on this later, but in meantime, contact your Senators and Delegates to let them know that privacy is important to you, and that you want to be notified if there is a breach in the confidentiality of your records (see latest VA fiasco here or here or here).

This afternoon, the House Energy and Commerce Health Subcommittee approved its version of legislation to facilitate the development of a national health information technology infrastructure (H.R. 4157). The Subcommittee action follows approval of a different version of the bill by the House Ways and Means Health Subcommittee, whose Chairman, Nancy Johnson (R-CT), is the lead sponsor of the bill.

As approved by the two Subcommittees, both bills codify the Office of the National Coordinator for Health Information Technology (ONCHIT), lay out broad policy goals for the establishment of a nationwide interoperable health information technology infrastructure, and include important “safe harbors” to the Stark II anti-kickback law as the HIT system is developed. The goals of the national HIT system include the promoting of health care quality, reducing medical errors, improving efficiency, facilitating portability of patient information by patients, and promoting health care research. The Ways and Means bill includes as a goal that the national HIT system “ensures that the confidentiality of individually identifiable health information is secure and protected.” The Energy and Commerce bill requires that the system is “consistent with legally applicable requirements with respect to securing and protecting the confidentiality” of patient records.

The Ways and Means bill as introduced included a study of privacy that opened the door to possible weakening of current privacy protections, and would have allowed the Secretary of HHS broad latitude in acting by regulation to “harmonize” privacy laws in a way that could have undercut existing HIPAA rules protecting state privacy laws that were stronger than HIPAA’s basic requirements. APA, both individually and in conjunction with the American Medical Association and mental health groups including the American Psychological Association and the American Psychoanalytic Association, has always sought to include the strongest possible privacy protections as one of the essential elements of any national HIT system. We met personally with Chairman Johnson and her key health staff to outline our concerns and to offer constructive suggestions about how the bill’s privacy language could be improved. With her support, our efforts resulted in an extensive reworking of the bill as approved by the Subcommittee. While not perfect, the changes are a very substantial improvement, and Chairman Johnson certainly deserves thanks for her efforts. A more detailed analysis of the changes is forthcoming.

The bill approved by the Energy and Commerce Health Subcommittee explicitly protects the current HIPAA “non-preemption” language that ensures that stronger state privacy laws will remain in force. While this is an important acknowledgment, additional work is needed to protect patient medical records, as evidenced by recent revelations of data and record loss in the VA system and DOD, among others. During Subcommittee debate, Democrats proposed an amendment that sought to strengthen the enforcement of existing privacy protections and require a privacy breach notification. The amendment failed by a vote of 10 to 12.

What’s next? Next Tuesday, the full Energy and Commerce Committee will consider its amendment to H.R. 4157. We also expect the full Ways and Means Committee to consider the bill as soon as next week. If the two bills continue to have major differences, they will have to be reconciled presumably in the House Rules Committee. Since the House GOP leadership has designated the week of June 18 as “Health Week” it seems very likely that HR 4157 – however amended – will be a centerpiece of the week’s activities.