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Mental Health Information & Privacy: Do Protections Help or Hinder
Patient Care and Public Safety?
Deven McGraw, JD, MPH, LLMPartner
Manatt, Phelps & Phillips LLP
Privacy Protections Matter
• Help assure people will seek care for sensitive health conditions.
• 1/6 (1/8) withhold information or decline to seek treatment due to concerns about confidentiality.
• Of particular concern for mental health – as many as ¼ adults in a given year is suffering from a diagnosable mental disorder, and nearly 2/3 do not seek treatment due in part to fear of disclosure, potential rejection from friends, and discrimination.
Protections for Mental Health Information
• HIPAA protects psychotherapy notes– Requires specific patient authorization prior to
disclosure (can use internally; some exceptions)• Federal laws protecting identifiable information
from a federally-supported substance abuse treatment program.
• Nearly all states recognize the role stigma plays in discouraging mental health treatment and have enacted laws that provide greater protections for mental health data.
Claims about HIPAA
• Doesn’t allow health information to be shared with family or friends.
• Doesn’t allow health care providers to share information that critical to public safety.
• Needs to be revised so that information about seriously mentally ill persons can be more clearly shared with family members and to protect the public.
Sharing with Friends & Family (1)
• Can disclose information relevant to a patient’s care to family members or close friends involved in that patient’s care – except where the patient has objected.– Providers can infer that patient would not object
based on circumstances.– Providers can ask the patient (no need for written
authorization).– Can rely on prior expressed preferences, as well as
circumstances of the current situation.
Sharing with Friends & Family (2)
• If patient is not present, or is unable to agree or object due to incapacity or emergency circumstances, provider can disclose if she believes it would be in the patient’s best interest.– Covered in more detail in recent (February 2014) HHS guidance.– Could include circumstances where patient is suffering from
temporary psychosis or is under the influence of alcohol, or if the patient cannot meaningfully agree or object to the sharing of information due to his current mental state.
– Once the patient regains the capacity to make choices, the providers should offer the patient the opportunity to agree or to object to future sharing.
• “If patient has capacity and objects,” information cannot be shared.
Sharing for Public Safety
• Entities governed by HIPAA are expressly permitted to use or disclose information to avert a serious and imminent threat to health or safety.
• Permission is to disclose to anyone who is reasonably able to prevent or lessen the threat, including the target of the threat.
• Entities are presumed to be acting in good faith if they are acting based on actual knowledge or credible information from a person with apparent knowledge or authority.
• HHS clarified through a letter on January 15, 2013.• Emergency exceptions are customarily found in other health
privacy laws as well.
Sharing of “Mental Health Prohibitor” Status
• Mental health prohibitor = a person who has been involuntarily committed to a mental institution; found incompetent to stand trial or not guilty by reason of insanity; or otherwise determined, through a formal adjudication process, to have a severe mental condition that results in the individual presenting a danger to himself or others or being incapable of managing his/her own affairs.
• Federal law prohibits mental health prohibitors from possessing or receiving a firearm.
HIPAA & Mental Health Prohibitor Status Reporting
• In January 2014, HHS proposed amending HIPAA to make it clear that the Privacy Rule permits reporting of mental health prohibitor status to the NICS (database administered by the FBI for gun background checks).
Issues for Discussion
• Does HIPAA strike the right balance or do the regulations need to be tweaked?– Note: HIPAA “permits” but does not require the
sharing of information with family members and in the event of a serious and imminent threat to health or safety.
• If HIPAA does strike the right balance, is great clarity/guidance needed?
Resources
• CDT (McGraw) testimony before Congressional subcommittee: https://cdt.org/insight/does-hipaa-help-or-hinder-patient-care-and-public-safety/
• HHS February 2014 Guidance: http://www.hhs.gov/ocr/privacy/hipaa/understanding/special/mhguidance.html
• HHS January 2013 Letter: http://www.hhs.gov/ocr/office/lettertonationhcp.pdf
