Abstract
This chapter seeks to elucidate the intersection of confidentiality and privilege laws and healthcare practices. It demonstrates where the law outlines a minimally unifying moral code beyond which clinicians must utilize their clinical and ethical judgement to provide the highest standard of medical care. Law informs the clinician’s mental healthcare practice. This discussion emphasizes the delicate challenge for clinicians of meeting the ever-changing requirements of the law to minimize patient risk and maximize patients’ safety. Legal definitions of confidentiality, privilege, and the duty to warn are surveyed in their broadest legal context and conveyed with the aim of being practically useful to clinicians, enabling them to incorporate these legal requirements as they provide optimal care. This chapter presents selected federal and state statutes as examples illustrating the wide variety of laws which may apply to the cases before them. How the law may be differently interpreted is also addressed. It is suggested that this task of giving the very best care while concomitantly pushing the envelopes of the law to treat patients in the best ways possible is among the most difficult tasks that clinicians may confront.
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References
Rothstein MA. The Hippocratic bargain and health information technology. J Law Med Ethics. 2010 Spring;38(1):7–13.
45 CFR 164.510(b)
U.S. Department of Health and Human Services. HIPAA Privacy Rule and Sharing Information Related to Mental Health [Internet]. HHS.GOV. Available from: https://www.hhs.gov/sites/default/files/hipaa-privacy-rule-and-sharing-info-related-to-mental-health.pdf
45 CFR 164.512(j)
45 CFR 164.501.
45 CFR 164.524(a)(1)(i)
45 CFR 164.524(a)(2)(v)
Md. Code Ann., Fam. Law § 5-704
42 CFR 2.11
42 USC § 290dd–2
Md. Code Ann., Cts. & Jud. Proc. § 9-109
Gorshkalova O, Munakomi S. Duty to warn. In: StatPearls. Treasure Island (FL): StatPearls Publishing; 2020
Werth JL, Welfel ER, Benjamin GAH. The Duty to Protect: Ethical, Legal, and Professional Considerations for Mental Health Professionals. First. American Psychological Association; 2009.
Thapar v. Zezulka, 994 S.W.2d 635 (Tex. 1999)
Md. Code Ann., Cts. & Jud. Proc §5-609
Goldsmith SK, Pellmar TC, Kleinman AM, Bunney WE, editors. Reducing Suicide: A National Imperative. In: Society and Culture. Washington, D.C., DC: National Academies Press; 2002.
Fisher MA. The ethics of conditional confidentiality. Oxford University Press; 2015.
Garvey KA, Penn JV, Campbell AL, Esposito-Smythers C, Spirito A. Contracting for safety with patients: clinical practice and forensic implications. J Am Acad Psychiatry Law. 2009;37(3):363–70.
Tarasoff v. Regents of the U. California, 551 P. 2d 334, 1976
SCOCAL, Tarasoff v. Regents of University of California, 17 Cal.3d 425 available at: (https://scocal.stanford.edu/opinion/tarasoff-v-regents-university-california-30278)
Case study - The Case of Tarasoff [Internet]. Practicalbioethics.org. Available from: https://practicalbioethics.org/case-studies-study-guide-the-case-of-tarasoff.html
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This work was prepared by a military or civilian employee of the US Government as part of the individual’s official duties and therefore is in the public domain and does not possess copyright protection (public domain information may be freely distributed and copied; however, as a courtesy it is requested that the Uniformed Services University and the author be given an appropriate acknowledgement.
The opinions and assertions expressed herein are those of the author(s) and do not reflect the official policy or position of the Uniformed Services University of the Health Sciences or the Department of Defense.
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Prost, C.A., Howe, E.G. (2022). Confidentiality and Privilege. In: Pasha, A.S. (eds) Laws of Medicine . Springer, Cham. https://doi.org/10.1007/978-3-031-08162-0_29
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DOI: https://doi.org/10.1007/978-3-031-08162-0_29
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