|How You Can Lose
Or Protect Your Privacy
By: Mentor Research Institute
Revised: May 21, 2014
Specific Situations In Which You Can Lose
The following is an outline of specific situations in which you can
Civil Litigation For Injury : You may
be required to release all information pertaining to your entire mental health history and
treatment if you file a lawsuit as the plaintiff against someone for damages with regard
to pain, suffering, loss of income or employment, or injury resulting in loss of physical
or mental functioning. This release of confidentiality may include all records and
may include requiring your counselor or psychotherapist to give a deposition and to
testify in a court of law. Keep in mind that most of your insurance records may be
available in centralized computer data bases that will be searched by the defendants.
Each year, over million people file lawsuits and become involved in
litigation related to accidents, injuries or harm caused by others. While your
health or mental health information might seem to have little bearing on your case, the
opposing side and their expert witnesses can obtain this information and attempt to
characterize you in a manner that will discredit you, discredit your claim, or use it to
minimize an award of damages. Once you go to court, your entire mental health
history, your testimony and the testimony of your counselor or psychotherapist may become
a matter of public record. From that point on anyone can review the court records.
Child Custody. You may be required to
release all information pertaining to your entire mental health history and treatment
history if you become involved in a child custody evaluation or litigation in which you
are seeking custody or joint custody of your child. Your records and the testimony
of a court appointed or special evaluator can become a matter of public record.
Job Applications. There are
certain jobs that require a thorough background check. If you apply for a security,
law enforcement or government job you may be required to release your health and treatment
records. Any government job that requires a security clearance will most likely
require your to release your records.
Criminal Defense. In the United
States, you may be accused of a crime, but you are innocent until proven guilty. In
addition, you cannot be compelled to testify in a court of law against your will.
However, if you choose to testify, you will likely be required to waive all rights to
confidentiality. This includes all records, including your mental health
Using Mental Health Insurance. It it
extremely controversial and virtually all managed health care companies will take the
position that it is not their policy to release information without proper
authorization. Insurance companies release information in good faith to attorneys
and other persons who do not have proper authorization. Some insurance
companies provide information to your employers, human resource and personnel departments.
More often, the information leaks or become public knowledge through informal means
that cannot be pin-pointed. There is also a growing practice in managed mental
health care to review or hire reviewers to request your therapist or counselor's files,
take the originals or copies, and then audit your records for the purpose of forcing your
therapist to change record keeping procedures. In many cases reviewers are forcing
therapists to return money to the insurance company. The risk that your
confidentiality will be lost is high if you use managed insurance and low if you avoid
using mental health insurance all together.
The Medical Information Bureau, Inc.,
in Cambridge, Massachusetts, maintains a nationwide database of health care claims and
makes information available to interested parties. Insurers have been known
to withhold life insurance from people with certain diagnoses and to withhold health and
disability insurance from people who have submitted mental health claims to another
insurer. Other interested parties may access this data as part of legal proceedings
or actions in which you are required to sign a release.
Working With An Unlicensed Counselor/Therapist.
Your treatment history and records are not confidential and are not protected under
state law unless you work with a licensed professional. The privilege belongs to the
patient but may only apply when you are in treatment with a professional who is actually
licensed or formally supervised by a licensed professional.
Suggestions And Possible Solutions
Suggestion: Avoid using mental health
insurance or working with managed health care companies that require extensive
documentation and histories, or a qualifying diagnosis from your counselor or
psychotherapist. Keep in mind that having diagnosis suitable for health insurance is
not necessary for you become involved and benefit from counseling or psychotherapy.
For more information see Criticism of America's
Diagnostic Bible - The DSM.
Suggestion: Read all releases that
you are required to sign. Pay particular attention and use caution when applying for
new insurance. New insurance release forms frequently stipulate that you release
all records including mental health chart notes. Consider telling your therapist or
counselor in writing that you do not give your permission to have your records or
chart released for review by anyone without your permission. The following is a link
to an example of a release of information restriction form.
Suggestion: Discuss with
your counselor or psychotherapist whether or not you may undergo a child custody or
psychological evaluation. There are certain note keeping and charting procedures
used by counselors and psychotherapists that can protect you if there is a likelihood of
legal action. A well intended therapist may keep unnecessarily detailed notes in
order help him or her work with you. In many cases, such detailed process notes are
unnecessary from a professional treatment standpoint, and they can end up being
misinterpreted and used against you at a later time in a legal proceeding.
Suggestion: Never work with an
unlicensed counselor or psychotherapist unless they are formally supervised by a
licensed professional who is responsible for maintaining your privacy. There are
many competent and effective unlicensed professionals who are supervised.