Academic journal article Duke Law Journal

Double Secret Protection: Bridging Federal and State Law to Protect Privacy Rights for Telemental and Mobile Health Users

Academic journal article Duke Law Journal

Double Secret Protection: Bridging Federal and State Law to Protect Privacy Rights for Telemental and Mobile Health Users

Article excerpt

ABSTRACT

Mental health care in the United States is plagued by stigma, cost, and access issues that prevent many people from seeking and continuing treatment for mental health conditions. Emergent technology, however, may offer a solution. Through telemental health, patients can connect with providers remotely--avoiding stigmatizing situations that can arise from traditional healthcare delivery, receiving more affordable care, and reaching providers across geographic boundaries. And with mobile health technology, people can use smart phone applications both to self-monitor their mental health and to communicate with their doctors. But people do not want to take advantage of telemental and mobile health unless their privacy is protected. After evaluating the applicability of current health information privacy law to these new forms of treatment, this Note proposes changes to the federal regime to protect privacy rights for telemental and mobile health users.

INTRODUCTION

Imagine that you are a single parent living in a small town and that your child has just been diagnosed with a serious mental illness. Treatment options in your area are few and far between. A handful of psychiatrists and psychologists practice in your town, but none specializes in treating your child's condition. You would have to drive over fifty miles to reach an appropriate specialist. As a sole provider, this is unworkable with your schedule.

You are thus delighted when you learn that your child will not need to travel at all to be treated by a mental health specialist. From a computer at your home, your child can use videoconferencing technology to receive treatment. You and your child consult a psychiatrist and a psychologist, and your child begins to meet regularly and develop relationships with each. Your child's prognosis steadily improves, and you are grateful for the technology that has allowed it to happen. But you are horrified when your computer is hacked and a clip from your child's therapy session is exposed over the internet. Your child's classmates learn of the clip and your child, shouldering the burden of mental health's stigma, begins to slip back into the confines of mental illness.

Telehealth, (1) the remote electronic provision of health care, can connect patients and providers, alleviating healthcare access issues such as the one in the above hypothetical. In particular, telehealth expands access to specialists, (2) to mental health providers in geographically rural or sparsely populated areas, (3) and to healthcare providers generally for homebound patients. (4) In addition, the economic benefits of telehealth are laudable, reducing transaction costs associated with traveling and waiting to see healthcare providers in person. (5) In the telemental health setting, where physical examinations are generally not required to properly diagnose, treat, and monitor patients, (6) the cost-benefit calculus especially favors telehealth. Another benefit is that obtaining treatment remotely heightens anonymity because it reduces the odds of running into your doctor in public and eliminates encounters with other patients in the traditional waiting room setting. Patients can thus circumvent the deterrent effects of stigma by obtaining treatment anonymously. (7) Indeed, the most rapid expansion of telehealth is therefore occurring in the behavioral health setting. (8) Additionally, mobile health applications and devices enable users to self-monitor and track medications and symptoms, access "inferred data" generated from such user inputs, and communicate either or both categories of information to providers. (9)

But in the age of WikiLeaks, Snapchat nudes, and easily compromised email servers, concerns about telecommunication confidentiality could not be more salient. In the healthcare context, security concerns are particularly pressing. (10) In one study, 94 percent of healthcare organizations surveyed experienced a data breach in the previous two years, and 45 percent experienced more than five such breaches. …

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