How You Can Lose Or Protect Your Privacy

Revised:  February 21, 2007

By:  Mentor Research Institute

Specific Situations In Which You Can Lose Confidentiality

The following is an outline of specific situations in which you can lose confidentiality.

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 records. 

Using Mental Health Insurance.  It is 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.