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Federal - 2005
Confidentiality Challenged
Last winter, during the unfolding of the sex-abuse scandal at the Air Force Academy in Colorado, a military judge threatened to arrest a civilian rape crisis counselor who refused to turn over her patient records. As of this writing, the therapist in question, Jennifer Bier, continues to assert her determination to keep her client’s records confidential; her case is now in the hands of the 10th District Federal Court of Appeals.
Confidentiality is the basis upon which the therapeutic relationship is built. It is what enables the client to have a sense of trust and safety and therefore openly discuss that which they are afraid or unable to talk about elsewhere. Confidentiality is also the cornerstone for the Code of Ethics governing the behavior of clinical social workers and Ms. Bier is a sterling example of someone who has chosen to practice this ethical mandate to the fullest extent.
The precedent for recognizing the confidentiality of psychotherapy records was established with the Supreme Court Case Jaffe vs. Redmond decided in June 1996 and held that the conversations between the client and therapist, a clinical social worker, and the notes taken during the counseling sessions were protected from compelled disclosure. Justice Stevens wrote, ”The privilege also serves the public interest, since the mental health of the Nation’s citizenry, no less than its physical health, is a public good of transcendent importance.”
In April 2003 the Federal Government enacted the HIPAA regulations (Health Insurance Portability and Accountability Act) in an attempt to secure our right to privacy in many areas of our life, including with our physicians and our therapists. For the clinical social worker it recognizes psychotherapy notes as confidential and the property of the therapist, and further that they are not accessible to review if kept separately from the patient record.
It is our sincere hope that Ms. Murphy and Ms. Bier prevail in having patient confidentiality upheld, with more detailed criteria for when the release of such notes would be in the best interest of all concerned.
We urge Society members to contact their Senators and Representatives to urge them to draft letters demanding that Secretary of Defense Donald Rumsfeld live up to Congress' intent in legislation passed last year to safeguard the privacy of service members who are raped.
Abigail Grant, MSW, LISW is president of the Clinical Social Work Federation.