A major omission marred the APA response to the proposed Department of Health and Human Services (HHS) privacy regulations for electronic records, as reported in "APA Registers Displeasure with Proposed Privacy Rules" in the March 17 issue.

An important victory for patients in psychotherapy was HHS’s explicit recognition of the Supreme Court decision in Jaffee vs. Redmond, which establishes an absolute privilege in federal courts for psychotherapy records and content. The HHS proposal completely prohibits selective underwriting of insurance policies and withholding of claims payment based on a patient’s refusal to disclose psychotherapy information. While Jaffee does not apply to medical records per se, it would apply to any component of psychiatric services that consisted of psychotherapy. HHS’s recognition of Jaffee deserves vigorous, unequivocal support in APA advocacy for privacy rules.

Unfortunately, the HHS proposal would allow far too many exceptions even to the psychotherapy privilege. Therefore APA should strongly advocate for three levels of protection affecting psychiatric records. The highest level is what is narrowly addressed by the Jaffee decision: psychotherapy content must remain absolutely privileged and private with no exceptions outside of those essential to protect people from imminent danger.

The second level lies outside of Jaffee but applies to especially sensitive medical information regarding mental illness, addictive disorders (already singled out for strong protection by federal law), HIV/AIDS testing, genetic testing, and so on. Such data must have a higher level of protection than medical records in general. Intimate personal behavior and information regarding other people in a patient’s life should also lie within this sensitive realm.

The third level, eloquently defended by Dr. Paul Appelbaum’s testimony on behalf of APA, affects all medical records. Patients must be confident that they maintain active control over disclosure of the information in their medical records. No amount of public benefit can justify the damage to the doctor-patient relationship or to patients’ trust in seeking medical services that would result from eliminating the requirement of patient consent to release medical information, as HHS proposes. But advocacy for the second and third levels of protection must not be allowed to dilute the fundamental, privileged privacy of psychotherapy as established in Jaffee vs. Redmond.

Norman A. Clemens, M.D.

Area 4 Trustee

Chair, APA Commission on
Psychotherapy by Psychiatrists