At our most vulnerable moment s – as individuals, as couples, as families – many of us seek help from professionals to heal and work through issues. One of the cornerstones of therapeutic treatment is trust and confidentiality, so people feel safe to expose vulnerabilities. But how confidential is psychiatric or psychological therapy?
The question arises after a recent edition of RTÉ’s Prime Time revealed that private psychiatric and education records of families of children with autism, who had taken cases against the State to assert their rights, were held for years in accessible dossiers at the Department of Health. The information had apparently been acquired without consent.
A few weeks earlier, sexual violence survivor Sarah Grace drew attention to how crime victims’ private therapy notes can be disclosed in court, generating an appalled public response.
Under what circumstances can client confidentiality be breached? Does apparently illegal violation, never mind legal disclosure, undermine client-therapist trust? Will it make those seeking help more cautious?
We talked to professional psychiatrists, psychologists and counsellors about how sharing information with third parties can occur – and how it colours therapy.
Codes of practice
The codes of practice of professional bodies – including the Psychological Society of Ireland, College of Psychiatrists of Ireland, Irish Association for Counselling and Psychotherapy, and Psychological Counsellors in Higher Education in Ireland – are similar, and are clear on circumstances where patient or client information can be shared.
In short, confidentiality is fundamental, bar when there is a risk to self or others, or a child is in danger, or on foot of a warrant. Members agree to abide by the codes and the Irish Medical Council (with similar rules) is a regulator, governing psychiatrists.
The limits of confidentiality are usually discussed at an initial consultation. In legal cases, unless there is a warrant, client consent is required to release information. Professionals stress that, prior to getting consent, they explain to clients the implications of sharing notes – contents may be read in open court and shared with the other side – and whether they can refuse or redact parts.
Clients sometimes seek to have notes shared to back up a case and therapists may help them decide which parts to share.
Psychotherapist and The Irish Times columnist Trish Murphy says there’s “hyper-protection” of clients: “The code of ethics is the core of how we work.”
The College of Psychiatrists of Ireland says psychiatrists have obligations to patients, employers and the Medical Council, but ethical obligations to patients take primacy and clinical information can be disclosed only with patient consent, by court order or “when otherwise mandated by law”.
If doubtful about information requests, the college encourages psychiatrists to consult colleagues or their insurer. President of the college and Mater consultant psychiatrist William Flannery says: “It’s accepted practice, and politeness, to let someone know about a court order. This may also have an impact on the person, who might need support in response.”
Professionals we spoke to seemed horrified at the apparent non-consensual disclosures by Health Service Executive (HSE) psychiatrists, reported by Prime Time, saying that any breach of ethical codes would be taken seriously by all professional bodies.
“As a psychologist, I’m appalled,” says Murphy. “The whole thing is horrendous. It’s beyond belief that in 2021 this is happening.”
Teresa Fox of Psychological Counsellors in Higher Education in Ireland says she “can’t figure out how it happened”. Her organisation is “incredulous, actually, that professional colleagues might think this is okay without consent. It’s just so black and white for us in our work; you don’t pass on notes to anyone. It beggars belief.”
Flannery says: “Obviously it’s wrong [to break confidentiality], but it is right in certain circumstances”, pointing out the professional bodies’ guidance is clear and easy to follow. Though, on the face of it, it is shocking, says Flannery, adding that we need more information about the circumstances.
The first response of one experienced HSE psychologist was: “It’s not ethical. It’s not legal without consent. But I wasn’t in the least surprised [at the revelations], having seen how adversarial and difficult the State can be when they are seeking not to create precedent for people getting their rights. But it’s the without consent bit that shocks me.”
The psychologist is adamant that “we wouldn’t hand over [notes] without consent and requests don’t normally come without consent. Whether it’s fully informed or not is another issue. But the HSE as a whole has been pretty strong on privacy of notes for quite a while. There may be cultural differences between HSE staff, voluntary bodies and private practice. But where there’s appropriate accreditation, people are careful to adhere to guidelines.
“It’s for fear of being sued too – this isn’t a bad thing. GDPR has firmed up what was slack in the past. The idea that the legal department would come looking for case notes without signed consent – we wouldn’t entertain it at all.”
Impact on therapy
Confidential notes may be requested for evidence in criminal prosecutions, which many seem an unfair anomaly when – in rape or sexual offence cases – their ultimate use may be to seek to discredit victim testimony. The Dublin Rape Crisis Centre wants a review of “this outdated and unfair process”.
The HSE psychologist says this possibility “colours therapy from day one and has a huge impact on how we do our work. Clients sometimes are not prepared to tell you things. They’re protecting themselves and that’s their right. They need to recover.”
The psychologist recalls a client threatening to kill herself if details of her abuse were ever passed on, and another case where an abuser was prosecuted, but the victim felt exposed in the courtroom, with personal details reported.
“Therapists are very particular to remind clients of the limits of confidentiality. They may not feel safe to name offenders when exposing abuse because that might expose themselves by default, particularly in smaller communities. It is the only crime where victims are the ones floored by the shame. It stops people reporting.”
“I can’t say if [the revelations] impact clients’ confidence,” says Fox. “There are people right now in therapy who are going to want assurances from their therapist, and rightly so. I’d be hotfooting it out the door if you couldn’t get those assurances. Because it’s so black and white for most of us in the profession.”
Flannery says: “It’s too early to see the effect” on trust, but “as we all live in an imperfect world, it has to have an impact”. The revelation “does give you pause”, but he is definite: “of course it doesn’t” affect doctor-patient relationships, and he reassures patients that psychiatrists practise according to professional codes.
Who owns notes?
Fox says many student counsellors return notes to the client as their property. “For me,” says Flannery, “the biggest puzzle is that the notes and information are legally owned by the health service.” He points to the various relationships and interactions: doctor/patient, patient/HSE, employee/HSE. Multi-disciplinary teams share patient notes, which are used in treatment.
“I wouldn’t expect that information to be generally shared beyond those directly clinically involved.” If they’re shared outside the team, he says, there has to be a purpose, even within the organisation. The service uses patient information internally, such as for audits and quality improvement, and externally, including for research and service development, sometimes anonymised.
There’s a recent tendency to keep scant notes so there is less to disclose down the line. “Practice has been impacted” by the possibility of notes being shared legally, the HSE psychologist says.
“If asked for notes, we’ll contact a client, even if it’s many years since they were seen, explain the implications, ask if they want to see their file.”
In this psychologist’s experience a lot of clients then withdraw consent if there isn’t a warrant, and staff are ultra-cautious looking after clients. “For us, it’s an issue from day one: what’s confidential and what’s not. Ten years ago more records were kept. Now notes are minimal, so the file doesn’t tell much, with nothing sensitive, and may be useless.”
But it’s a catch-22: “One of the difficulties of being parsimonious with notes is you rely on therapists’ recall years later.”
Murphy echoes this: “If you’ve no notes you can’t support the person.”
Flannery observes many services internationally don’t keep notes because systems can be hacked.
Fox says, “You want to track progress, so you need to be able to capture those sessions”, but her notes are “fairly minimal, just enough to prompt me to remember what we did last session.”
Some therapists say that rape crisis centres don’t take notes because of the implications. “They’re on the cutting edge and I can see why they wouldn’t,” says one. “There’s nothing to give over”, says another.
Dublin Rape Crisis Centre says its therapists take notes on sessions that are confidential, with the usual exceptions, which are part of a consent form on the specified limits to confidentiality the client signs. “Our therapists are trained in taking succinct, accurate and contemporaneous notes that help support the therapy and welfare of our clients.”
A HSE psychiatrist adds: “If someone’s disclosing something very sensitive and is reluctant for it to be known, it’s reasonable to flag that I’m obliged to record this.” This may affect what they share.
While “the patient/doctor relationship is the same”, Flannery says “that trust we’re meant to have in the civil system is being talked about. What does give me pause is the dark heart at the centre of Government. It goes back to the social contract. There’s an expectation that everybody is trustworthy.”
The College of Psychiatrists is “confident in the process, in our practice, which has been in place for decades”, but Flannery questions whether “the processes, the ethical code, the culture” and values of trust and empathy are replicated elsewhere in the health system. “How is the regulatory system implemented and regulated? What are the department and HSE’s overall culture and ethical code? What is the oversight? These are the questions our membership are asking. Our job as employees is to reassure our patients the values of our profession are also in the organisation where we work.”
Fox says: “It’s a strange one. The only take I can take out of this is, it’s Big Brother. Big State asking for these notes, and do people not feel equipped or supported in saying no? It’s not a simple error of judgment in one or two cases, it’s some sort of systemic thing. My concern is this would become a barrier for people who need to access services and won’t trust it now. That is a real concern.”