Clinicians Imagine a Patient’s View: Rating Disclosures of Confidential Information Graham Lindley Spruiell, MD, Mark J. Hauser, MD, Michael Lamport Commons, PhD, and Eric Y. Drogin, JD, PhD Consent to disclosure of confidential information is a cornerstone of the clinician-patient relationship; however, changes in the legal, regulatory, and technological landscape affecting patient confidentiality have brought increasing conflict between ethics-based commitments and the realities of practice. In this pilot study, 119 mental-health clinicians completed a questionnaire that measured levels of disapproval of disclosures of confidential information to various third parties. Clinicians were asked to respond as though they were patients whose information was to be disclosed. Clinicians, taking a patient’s perspective, most disapproved of disclosures to anyone who wanted the information and to entities that marketed pharmaceutical, medical, or other products. They were progressively less uncomfortable with disclosures to family members, for educational use without consent but with de-identification, to insurance companies, to pharmacists, to journals, for educational purposes in training other clinicians, and for research. They were least disapproving of disclosures to other clinicians. Based on this initial study of clinicians taking a patient’s perspective, clinicians will do well to inform patients about disclosure practices at least as fully as they themselves would want to be informed. J Am Acad Psychiatry Law 39:379 – 86, 2011 Handling confidential information is addressed early in the course of every clinician’s graduate training, but the legal and regulatory landscape changes con- stantly. Innovations such as The Health Insurance Portability and Accountability Act of 1996 (HIPAA), managed care, and the electronic medical record periodically challenge our understanding of what it means to maintain confidentiality. 1–3 Keep- ing pace with externally imposed practice require- ments that affect our patients is a perpetual obliga- tion that requires empathic focus and analytic reasoning. 4 In this pilot study, we asked clinicians to rate their reactions to hypothetical disclosures of confidential information as if they were patients who were being questioned. 5 Results suggest that considering confi- dentiality in this fashion invokes a reciprocal per- spective in which the potential for disclosure is re- garded not just in terms of codified ethics, but also with various amounts of personal disapproval. Such experiences remind clinicians that properly manag- ing confidentiality plays a key role in preserving trust, an indispensable component of the treatment relationship. Three key legal decisions highlight the need for mental health professionals to master the finer points of contemporary confidentiality regulations. In Jaffee v. Redmond, 6 a clinical social worker was treating a police officer who was accused of causing the wrong- ful death of a knife-wielding assailant through the use of allegedly excessive force. Upon discovering this treatment relationship, the plaintiff’s attorney de- manded the officer’s psychotherapy records, which the social worker refused to provide. A federal trial court ruled against the social worker, concluding that there was no “legal justification” for withholding the records; however, the Seventh Circuit Court of Ap- peals overruled the lower court, maintaining that the records merited protection via a psychotherapist- patient privilege that had been adopted in some form by all 50 states and should also be established in the Drs. Spruiell, Hauser, and Drogin are Clinical Instructors and Dr. Commons is Assistant Clinical Professor in the Department of Psychi- atry, Program in Psychiatry and the Law, Harvard Medical School, Beth Israel Deaconess Medical Center, Boston, MA. Address corre- spondence to: Graham Lindley Spruiell, MD, Beth Israel Deaconess Medical Center, Department of Psychiatry, 330 Brookline Avenue, Boston, MA 02215. E-mail: gls@analysis.com. Disclosures of financial or other potential conflicts of interest: None. 379 Volume 39, Number 3, 2011