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Expert explains patient privilege, duty to third parties
An expert discussed duties to third parties in criminal cases through his lens as a behavioral health professional at the Joint Threat Assessment Training offered by the Association of Threat Assessment Professionals.
In the presentation, Jack Rozel, MD, MSL, UPMC Systemwide Threat Assessment & Response Team, president of the American Association for Emergency Psychiatry, associate professor of psychiatry and adjunct professor of law, University of Pittsburgh, stressed that rules relating to duties to third parties are complex.
Learning the terminology
Rozel first walked the audience through the subtle differences between “duty” — which means a person must warn someone about a possible harm, or they can be liable for negligence — and “permission” — which means a person may or may not do something. From a health care professional’s perspective, if a clinician has permission, they can warn without having to worry about breaking HIPAA.
Privilege is the patient’s right to keep information they tell a psychiatrist or other mental health professional out of the legal system so it can’t be used against them, whereas confidentiality is a clinician’s obligation to keep that information private for a patient, Rozel said.
“Though in general, everything can be shared and may need to be shared, the exception is that some special relationships, like working with a therapist or mental health professional, are protected,” Rozel explained. “In Pennsylvania for example, we have a state statute that says lots of special communication in health care can be privileged, probably including anything that happens in professional peer support.”
When psychiatrists can share information
Rozel noted some exceptions to sharing information include:
- any time consent is given to disclose information;
- child abuse is reported;
- HIPAA; and
- sharing information with third-party payers (like insurance companies, but not usually parents paying for the child’s care).
Since 1985, California law states that a psychotherapist has a duty to protect or warn a third party only if the therapist actually believed or predicted that the patient posed a serious risk of inflicting serious bodily injury upon a reasonably identifiable victim because of the case Tatiana Tarasoff v. Regents of the University of California.
However, many of the rules and regulations surrounding privacy are old, Rozel explained; for example, Pennsylvania’s Mental Health Procedures Act is more than 40 years old and has not had any new derivative.
“The federal regulations around privacy, they’re all around how to protect breach of privacy knowing that patients are less likely to seek care for important medical conditions if they feel their information will be shared inappropriately but also, a lot of it was designed like HIPAA,” he said. “It was never intended for ‘it’s 2:30 a.m., I think this person is about to go hunting for someone and I need to tell someone about that.’ It was never engineered to work at that level.”
Assessing the threat, sharing the information
Deciding how to use information and whether to warn the potential target can be difficult because it’s subtle, Rozel explained.
“Many states have laws about the rules around duties to third parties. There will be essays about this is how we’re interpreting the law. They can be interpreted differently, and many cases are messy,” he said. “We know that conflicts can escalate, but to discreetly share that information with someone so they’re aware of the risk and they can help me develop the intelligence, I need to do a better threat assessment and make sure all the targets are safe.”
Rozel said that knowing the laws and how it applies to specific professionals is important to consider because duty as a doctor, psychiatrist and clinical provider can look very different from someone else’s duty as a school administrator or law enforcement professional. In some cases, warning someone else will help, but in others it won’t.
“Give up the notion that there’s going to be an easy solution. Give up the notion that there’s going to be a risk-free pathway. It’s always risk vs. risk,” Rozel said. “It’s nice to say that at the end of the day, for myself, given the choice between Jury verdict A and Jury verdict B, to say listen, I was really concerned that someone’s life was in jeopardy and I made the discreet disclosure because I thought that’s what was necessary to prevent a really bad outcomev and I’m sorry to breach that person’s confidentiality.” – by Savannah Demko
Disclosure: Rozel reports no relevant financial disclosures.