Forensic Corner; Patient Confidentiality: How Far Does it Go?

Lee H. Haller, M.D.

During the course of diagnostic and treatment sessions, a therapist comes to know a significant amount of information about a patient. How the therapist might use that information is the subject of this issue's column. Consider the following examples.

In a family treatment session, the therapist learned from the father, a high level executive in a national company, that his firm would soon make a public announcement of a revolutionary new product causing their stock to skyrocket in value. This information came out as part of the therapy session without the therapist having made any effort to elicit such information. Based on this information, the therapist called his broker and purchased 400 shares of the company. Within a few weeks, the announcement was made and the stock subsequently rose 75% over the ensuring month. The therapist was able to cash out his holdings for a substantial gain.

Shortly thereafter, the treatment came to a successful conclusion. Unfortunately, the family members died shortly thereafter in a highly publicized accident. A reporter found out that the therapist had been involved and called to request an interview. The therapist decided that no harm could come to anyone by his discussing treatment, in that all parties were deceased. He therefore granted the interview, hoping the publicity would increase business.

In these hypothetical examples, the therapist has taken information obtained in the course of diagnosis and treatment and used it in ways that are not permissible for several reasons. In regard to the stock transaction, he engaged in insider trading, thereby leaving himself liable to a criminal charge of felony fraud (for which he could be fined and/or jailed) as well as civil litigation. With regard to his interview with the press, he has violated his patient's privilege since he is speaking without authorization to disclose.

In both cases, the therapist has committed a professional "crime", as well. This crime is a confidentiality violation. When parents bring their child to a psychiatrist for treatment and the doctor accepts the case, the doctor becomes obligated to perform a service for the patient. That service will be defined by the treatment contract. Generally, the contract is that the physician will use his/her expertise to assist in ameliorating the patient's mental illness. In the course of this treatment, all information the therapist obtains is to be used solely within the confines of the contract. Any use of the information outside of the contract is a misuse of that information.

Physicians are ethically bound to keep such information confidential. Obviously, within the physician's mind, information cannot be held only in a professional data bank that is unknown to the rest of the self. However, the concept of confidentiality still applies in that the physician may not make use of the information on a personal level. Such usage is what constitutes the confidentiality violation and this is the crime the therapist committed in the examples of the stock transaction and the newspaper interview. This misuse of professional information is an intrapersonal boundary violation that all therapists must guard against.

Dr. Haller is in the private practice of forensic psychiatry in Potomac, Maryland

AACAP News/March-April 1996