The results of a Gallup poll show that Americans are extremely guarded about their medical information, and the overwhelming majority would not want their medical records stored in a national computerized database.

While 78 percent of Americans surveyed reported that it was very important that their medical records be kept confidential, 92 percent were opposed to allowing government agencies to have access to their medical records without permission. Eighty-seven percent of those surveyed objected to insurance companies gaining access without permission, and 91 percent opposed a federal requirement to assign everyone a medical identification number, similar to a Social Security number, for a national medical database.

Gallup conducted the poll, titled "Public Attitudes Toward Medical Privacy," in August for the Institute for Health Freedom. This organization describes itself as a nonpartisan, nonprofit research center and "think tank" established to bring issues of individual health freedom to the forefront of America’s health policy debate.

The Gallup organization conducted telephone interviews with 1,000 adults in a national, cross-sectional survey.

The threat to medical privacy is growing, and confidentiality can be breached in any venue. The October 2 Online U.S. News describes a situation involving a Safeway employee in Fremont, Calif. Renee McIntosh had a meeting with the company psychiatrist in which she expressed her childhood fears and the hardships of a rocky marriage. Little did she know that an employee of the Safeway store had given the 15-page record of her meeting with the psychiatrist to a colleague, who shared the record with coworkers at a company happy hour. An attorney for Safeway argued in court that the document was an evaluation necessary for McIntosh to receive worker’s compensation and, furthermore, was a public document. The case is pending in a superior state court at present.

Margo P. Goldman, M.D., chair of APA’s Committee on Confidentiality, is especially concerned about the confidentiality of information provided in the context of psychotherapy. "The verbal communication and the notes taken by the therapist are an important tool in psychiatry. When confidentiality is eroded, you lose the tool," said Goldman, adding, "It is like handing a dull scalpel to a surgeon to use on a patient."

Jim Pyles, J.D., the lobbyist and counsel for the American Psychoanalytic Association, agreed. "Effective psychotherapy cannot be provided unless there is an assurance that communications are kept strictly confidential—the Surgeon General reached the same consensus, and these principles are embedded in the laws of many of the 50 states."

In his capacity as lobbyist, Pyles has argued vigorously on behalf of the American Psychoanalytic Association that medical and psychotherapeutic information should not be released without the patient’s consent.

Pyles noted that the U.S. Supreme Court, in a decision handed down in June 1996 in the case Jaffee v. Redmond, recognized the need to preserve the confidentiality of psychotherapy records. The case created a federal psychotherapist-patient privilege and noted that "effective psychotherapy. . .depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories and fears."

As part of the Health Insurance Portability and Accountability Act of 1996, more commonly known as the Kassebaum-Kennedy Law, the Secretary of Health and Human Services was required to develop regulations determining the conditions under which medical records are released to third parties—whether they be clinicians, health insurance companies, law enforcement agencies, or researchers.

These new regulations will be released by the end of the year, and while no one can predict their specifications, the proposals for the regulations were announced a year ago.

Surveyed Americans were asked if they were aware that new federal regulations regarding access to medical records had been proposed, and only 16 percent were.

"This compelling figure shows me that the majority of people were unaware of this one major issue—and had assumed that their medical information would be kept confidential," said Goldman.

Advocates for confidentiality are not pleased with what they have heard so far. Commented Goldman, "These regulations fall short of protecting privacy." Although the proposals would establish some fair practices, such as the right of patients to see, copy, and amend their medical records, they fail to establish any right to medical privacy, maintained Goldman.

"They actually abolish the time-honored practice of informed consent for the use of and disclosure of medical information," Goldman told Psychiatric News. She explained that the proposed regulations allow medical information to be disclosed for health care payments and health care operations without the patient’s consent.

One particular proposal was especially noteworthy to Goldman. "These regulations as proposed actually would prohibit facilities and providers from obtaining patient consent unless the state law required it. It completely guts the bedrock principle of informed consent," she declared.

The survey results are no surprise to Goldman and Pyles. Both acknowledged the growing unrest among Americans as their rights to privacy have been violated in a number of ways and noted that only when the public makes its discontent known do lawmakers and government officials respond with increased confidentiality protections. "One of the reasons that the national medical identifier has been on hold is because of the public outcry that occurred when it was going to be implemented a few years ago," Goldman said.

Pyles agreed. "Every time there has been a report in the media about privacy violations, there has also been a huge backlash from the public," he acknowledged. This, he added, has caused Wall Street to see that privacy sells, which is good news.

[Jaffee v. Redmond, 96 D.A.R. 6783]