HEALTH LAW SUPPLEMENT Fall 2014

Googling patients, ethical or not? In our Spring 2012 Supplement, I discussed the position taken by the American Psychological Association that only in “rare cases” and with the patient’s consent should a therapist google or otherwise search online for information about a patient. www.apa.org/gradpsych/features/2010/client-searches.apx Quoting a past chair of the Ethics Committee of the American Psychological Association in the article, “Spying just because you can is inappropriate.” Without a patient’s consent, the psychologist-ethicists quoted in the position paper indicated that a search should be undertaken only to protect the safety of a patient or third party.

A member of The American Psychiatric Association Ethics Committee, in “Psychiatric News,” recently took a more lenient position toward googling of patients by mental health practitioners. http://psychnews.psychiatryonline.org.newsArticle.aspx?articleid=1902164. She stated that “Googling a patient is not, in and of itself, unethical.” Echoing the psychologists’ concerns, the psychiatrist-ethicist stated that online searching should be undertaken “…only in the interests of promoting patient care and well-being and never to satisfy the curiosity or other needs of the psychiatrist.” While stating that face-to-face interviews are the standard of practice for learning about a patient’s medical condition, the writer acknowledged that some patients may be unable or unwilling to provide important information, and in such situations, “… googling a patient … may provide useful information.” The key difference between the two APA’s seems to be that in non-emergent situations, the Psychiatric Association does not require consent from the patient to google a patient, but only that the practitioner have a good faith belief that searching for information from the internet will be of benefit to the patient’s treatment.

Florida’s “Docs vs. Glocks” law upheld. In a July 25, 2014 ruling, the US Court of Appeals for the 11th Circuit upheld a 2011 Florida law that prohibits doctors from asking patients about their gun ownership or recording information about gun ownership unless it is medically necessary. The AMA and American Psychiatric Association had taken the position that doctors asking about gun ownership is an important health-related screening tool, similar to asking about alcohol and substance use, smoking, and eating, and that the law violated doctor’s First Amendment free speech rights. In 2012, a US District Court judge agreed with the AMA that the law unconstitutionally infringed on speech rights. The Appeals Court disagreed, and stated that the law is meant to and does protects patients’ privacy rights, that any infringement on free speech rights is “incidental,” and that the law is a “legitimate regulation” of medical conduct. Doctors who violate the law could be fined and subject to professional discipline. Presumably, the law would not prevent a doctor from conducting a medically necessary assessment of dangerousness by a patient by questioning means of lethality when ideation, intent or plan are present. But that remains to be seen.

Licensed Psychoanalysts approved for assessment, screening and treatment of alcohol and substance abuse. The New York State Office of Alcohol and Substance Abuse Services (OASAS) maintains a list of agencies and professionals capable of providing screening, assessment and treatment of alcohol and substance abuse dependency for persons charged with or convicted of an impaired driving offense. Physicians, psychologists, nurse-practitioners, LCSW’s, LMFT’s and LMHC’s had previously been deemed eligible professionals for the listing. In an opinion letter dated February 7, 2014, OASAS General Counsel deemed licensed psychoanalysts to have a scope of practice consistent with that necessary to perform mental health services to impaired driving patients, and added them to the listing of eligible professionals.

What are psychotherapy notes (under HIPAA)? Though the Privacy Rule and its establishment of a category of clinical notes termed “psychotherapy notes” have been in existence since 2003, there remains confusion among many psychotherapists. “Psychotherapy notes” are a category of records that are granted special protection from disclosure under HIPAA. Many client-psychotherapists who receive authorizations or judicial subpoenas for the release of entire records “except psychotherapy notes” believe that all of their progress notes are psychotherapy notes because they are notes related to psychotherapeutic treatment and are therefore not subject to disclosure. But under HIPAA the definition of psychotherapy notes is not a straightforward one. They are notes of a mental health professional of a counseling session that are kept separate from and in addition to the rest of the medical record. There is no requirement that psychotherapists keep psychotherapy notes, and in my experience, most don’t as such notes are formally defined. Psychotherapy notes do not include: diagnosis, symptoms, functional status, treatment plan, prognosis, treatment frequency and progress, start and stop times, clinical test results or information about medications. Psychotherapy notes may contain information that is typically labeled “personal notes and observations” under NYS Health Law §18, or “process notes” colloquially. In my experience, most mental health clinicians maintain one set of notes that contains both material that ought be part of the medical record, and additional more sensitive and private material that would better be kept as separate “psychotherapy note”material, but is not. Simply stated, if there is no second set of notes, there are no psychotherapy notes.

Are non-medical psychotherapists held to a different standard than physicians in professional disciplinary (licensure) proceedings? We have represented many lay psychotherapists and also psychiatrists in such proceedings, and in my opinion, the answer to the question is “yes.” I think a reason is that when applying a standard of care to the conduct of psychotherapists, because of a lack of commonly accepted scientific data regarding efficacy, the standards imposed are instead those of ethics. Standards of care should be minimum standards, and ethical standards, as they state explicitly therein, are not meant to be that. Ethical standards tend to be aspirational and open to subjective interpretation. Non-medical therapists are therefore often judged by a standard of what they ought to be doing according to an ethical standard, not a standard based on what similarly situated practitioners are actually doing, whereas medical practitioners are held to accepted and customary standards based on scientific evidence of proven efficacy.

INFORMATION IN THIS NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING THE SPECIFICS OF YOUR SITUATION.

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