Monday, January 17, 2005

'Counselor' appears to have violated privacy laws

The Fort Wayne (IN) News Sentinel contains a letter and a response related to what may be a really reprehensible practice. A woman wrote in that she was "set up" to particpate in marriage counseling, the purposes for which may have been to assemble information to be used against her in a divoce proceeding. She was asked to sign a release, which she likely did not read and which appears to have given permission for the counselor to provide the information to her husband's lawyer. Though I can't imagine that the "release" would stand up to close scrutiny, it reinforces the lesson that people should read what they're signing.

KRT Wire | 01/17/2005 | 'Counselor' appears to have violated privacy laws:

"(KRT) - Q: ...

This "counselor" had both my husband and me sign releases when we came to his office, which I thought was standard procedure, but my husband's lawyer now has all of our records and is nitpicking and choosing information from my files to crucify me. My attorney says that my husband's part of the file is "clean," and that he has never seen a case like this. Had I known that my husband's lawyer picked the counselor to sandbag me, I would have never gone, much less signed a release. What can I do? Or is my goose cooked for being naive?

A: Based on the facts as you describe them, we don't know if it's your goose - or that of your "counselor" - that is cooked. In addition to state laws and ethical considerations that require confidentiality of protected health information, health care providers - including psychologists - are subject to federal confidentiality laws.

As we have referred to tangentially in other columns, the federal medical information privacy law - called HIPAA - applies to all health care providers, including psychologists, who deal with protected health information. This means, in its most simplistic form, that covered entities and individuals are required to keep protected health information confidential - unless they receive a valid release. In addition, "business associates" of these health care providers, including professionals such as accountants, lawyers, etc., are likewise required to maintain the confidentiality of protected health information.

In order to secure a valid HIPAA release, the document must have been signed voluntarily and with "informed consent." Informed consent means that all of your questions should be answered before you sign the document. It's not enough to merely hand you a form and tell you to read it and sign it.

In addition, the release should set forth the purpose and contain withdrawal provisions.

Here, it would appear to us that your lawyer may have an argument that you signed the release under what appears to be fraudulent circumstances. Surely, you would not have consented to see this counselor had you known that he was a friend of your husband's lawyer and that your husband had been seeing a lawyer for a period of time before you were "directed" to this medical professional for purposes other than counseling - that is, to have a professional witness available to corroborate your husband's positions.

Without full disclosure, we don't believe you could have given voluntary consent. And, given your desire to save your marriage, we don't believe that the counselor has lived up to the appropriate standard of care of a "reasonable and prudent" psychologist, or that you or another reasonable patient would have done this had you known the true circumstances. In other words, you appear to have been coerced.

Under these circumstances, we believe you have a good argument that your lawyer needs to raise in order to protect your interests and those of your children."

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