Health Care Confidentiality: Current Virginia Law and a Proposal for Legislation
Lombardo, Paul, Developments in Mental Health Law
What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself holding such things shameful to be spoken about. (1)
This is Hippocrates' ancient prescription for medical confidentiality. Once presumed only for physicians, the rule of confidentiality is now a universal ethical requirement for those who work in health care settings, including psychologists, social workers and others who provide mental health services. The ethical norm for practitioners is matched by an expectation on the part of patients who yield the secrets not only of their bodies, but of their minds, in an effort to achieve health.
Some have argued that developing practice trends give too many people access to a patient's records. As a result, the foundation of trust characteristic of the doctor/patient relationship has eroded, they say, and the ethic of shared secrets is threatened. (2) Additionally, the new technologies that require computerized medical records and convenient electronic data transmission have made the protection of clinical information difficult. Legal practice has also evolved, and demands for medical evidence in all types of litigation--from personal injury, to employment actions to child custody--have become commonplace.
Certain kinds of medical innovations have led to proposals for new laws. For example, the availability of previously unknowable genetic information set the stage for the development of a model genetic privacy act, (3) and general concerns over the possibilities for abuse of electronic medical records have yielded calls for a comprehensive national law to regulate medical confidentiality. A bill that would accomplish that goal has recently been introduced in Congress. (4) In the judicial arena, the importance of mental health confidentiality is coming into focus as the United States Supreme Court reviews the application of the psychotherapeutic privilege to actions in federal courts. (5)
Meanwhile, though some federal statutes provide extraordinary protection for certain kinds of records, (6) and occasional exceptions that supersede state prohibitions on disclosure, (7) medical confidentiality is generally a creature of state law.
Virginia Confidentiality Law
Virginia's law relating to confidential medical or mental health information is contained in a patchwork of statutes that are difficult to find and more difficult to understand and apply. Taken together, those laws neither instruct the subject of sensitive information when his or her expectation of confidentiality will be respected, nor clearly alert the professional when a disclosure of confidential information is appropriate. Ironically, while there are as many as fifteen different statutes that allow or require doctors and psychotherapists to breach patient confidentiality, there is no statute in Virginia that specifically requires confidentiality to be maintained in both public and private therapeutic contexts. (See Table 1.)
There are, however, several statutes that protect some features of medical and mental health confidentiality. A statute on the "Rights of Patients and Residents" of facilities operated, funded or licensed by the Department of Mental Health, Mental Retardation and Substance Abuse Services promises "legal rights and care consistent with basic human dignity." A specific provision of the statute allows a facility resident to "[h]ave access to his medical and mental records and be assured of their confidentiality...." (8)
Another statute settles the ownership of medical records in health care providers while simultaneously mandating that "providers shall keep medical records confidential and only authorized personnel shall have access to such records." (9)
The only other broad legal protection of confidential information is provided by a privilege against compelled disclosure in the litigation context. …