Caution Is Key to Avoiding Confidentiality Breaches.

NEW ORLEANS - Maintaining confidentiality of treatment is the biggest problem that psychiatrists face in private practice, Daniel H. Willick, J.D., said at the annual meeting of the American Psychiatric Association.

Psychiatrists are constantly being assaulted with requests for information on the treatment of their patients, and many fall into bad habits by disclosing that information, said Mr. willick, general counsel to the California Psychiatric Association,

Whenever there is a request for confidential information, the reaction always should be "I need specific authorization from the patient to release the information." Don't release the information without the consent of the patient, he advised.

State and federal law offer strong protections for confidentiality and in many states, a therapist who improperly breaches confidentiality maybe punished.

When keeping records of psychiatric treatment, always expect that someone else, like a private insurer or managed care company will read it. While the obligation to maintain confidentiality exists, physicians have to act under the assumption that someone else, including the patient, is going to read those records. Be careful not to include unnecessary and damaging information about the patient, such as criminal activity, in the progress notes, Mr. Willick added.

However, do not deal with this issue by not keeping psychiatric records. Failure to keep adequate records is an open invitation for big trouble, said Mr. Willick, also of the University of California, Los Angeles. In many malpractice lawsuits in California, crucial evidence is often the fact that appropriate medical and psychotherapy records were not kept. In many states, it is considered unprofessional conduct to fail to keep adequate medical records.

The American Psychoanalytic Association advises its members not to keep process or progress notes for psychoanalysis, but Mr. Willick advises his own clients- psychoanalysts and psychoanalytic institutes-not follow those guidelines.

Psychiatric records should contain enough information to document appropriate treatment, diagnosis, treatment plan, progress regarding the treatment plan, and supporting information for prescriptions, he said. If this information is not included in the record, the physician is at risk of not being compensated and of seeing a malpractice claim down the road.

The following are other typical situations that can create problems regarding confidentiality:

* Deceased patient. The medical and psychiatric records of a deceased patient remain confidential. The estate of the deceased holds the right to the privilege and confidential character of the records and to disclose the information.

* Personal injury suit. If a patient is involved in a personal injury suit and is claiming emotional distress, typically the patient's lawyer will seek information about the patient's treatment. Don't turn over the records unless you have a release from the patient. In most states, without a release, a physician cannot even disclose to the lawyer that the individual is a patient. Other litigation. If the patient is in litigation and has made an issue of a mental condition, the opposing side typically has a right to access treatment information. But if subpoenaed for the records, do not simply turn them over. Assert the confidentiality and privileged character of the records and immediately contact the patient to obtain written consent for disclosure. If immediate consent is not possible, inform the attorney who subpoenaed the records, via written response, that you are obligated to maintain confidentiality and do not have consent to release the records. The therapist does have the legal and ethical obligati on to assert the right of the patient, Mr. Willick said.