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RECORDS, CONFIDENTIALITY OF TREATMENT

The Laws

DECISIONS

  1. A hospital had a release of information allowing them to share information about the patient’s care with her family. However, they released records to the family that the patient did not want released. The hospital acknowledged they had exceeded the scope of the release of information they had and implemented a procedure to ensure that this error did not occur again. Nothing can undo the error, but the hospital’s actions were the proper remedy under the circumstances. That is all the grievance process can do. The patient could still take the hospital to court if she wished. This matter was considered resolved. (Level III decision in Case No. 97-SGE-01 on 5/27/97)

  2. Subsection 51.30(4)(b)5 allows access without consent "...to qualified staff members of the department... as is necessary to determine progress and adequacy of treatment..." Thus the State Grievance Examiner is allowed to obtain otherwise confidential records without the informed consent of the complainant. (Level IV decision in Case No. 98-SGE-02 on 1/22/99.)

  3. A methadone clinic involved 17 different staff members in a multi-disciplinary team meeting to discuss a patient’s alleged dose-splitting. This team meeting included staff who had no involvement with the patient and had no "need to know" the treatment information about this client. The patient provided no release of information. This process violated the patient’s right to confidentiality of his treatment information. (Level III decision in Case No. 99-SGE-02 on 5/17/00. Appeal to Level IV by the patient was dismissed since the Level III decision was in his favor.)

  4. A patient claimed a breach of confidentiality by her therapist in a phone conversation with her mother. It was found that the mother initiated the call because of her concerns for her daughter and that the therapist was careful not to divulge any information about the daughter’s treatment. The mother asked the therapist not to tell the daughter about the phone call. The therapist could not promise that she would not divulge that the mother called, but eventually decided not to inform the daughter. Her reasons for making that decision were documented. No breach of the daughter’s confidentiality was found. (Level III decision in Case No. 00-SGE-02 on 6/17/00, upheld at Level IV.)

  5. A client received services from an agency contracted by the county. He felt that the provider releasing information, without his consent, to an evaluator who was completing a vocational assessment violated his confidentiality. The evaluator was from a local university who had no official connection to the county’s service delivery system. However, by mutual agreement all the parties, including the client, he was to do a comprehensive vocational evaluation the client. At a later meeting with the parties, the client found out that county staff had shared specific information about his mental health history but had not obtained a release from him to do so. Other "consents to disclose confidential information" were on file, but there was no release of information relative to the staff’s involvement in the evaluation process. Was the verbal sharing of any information with the evaluator was permissible? Any information about the client’s mental health history and treatment would constitute "treatment record" information within the meaning of confidentiality laws. But the staff’s very presence at the meeting was an identification of sorts that the client was receiving services from the county. Did the presence of the staff at the meeting and the client’s lack of objection at the time to any information shared provide an implied consent on his part? Was any information shared covered by some other exception to the requirement for an informed written consent? It was concluded that this evaluation was akin to a "second consultation" and not provided as a routine "purchase of service" resource for county staff. Thus, it did not readily fit into one of the exceptions to the confidentiality law wherein there would is a pre-existing purchase of services contract between the county and a provider. Further, the section of HFS 94 that addresses a "second consultation" notes that the person doing the consultation can review the client’s treatment record. By the staff member’s un-objected-to presence, the client may have provided an implied consent, but that this was a "close call" in terms of the technical confidentiality requirements. Since the vocational evaluation was set up by mutual agreement of all parties, there likely was an expectation of open sharing of treatment information to assist the evaluation process. Nonetheless, it would have been best practice for the service providers to have a clearly written release of information from the client that would specify who all could be part of the information sharing process. There was insufficient evidence to find a rights violation. When outside evaluations occur, there should be clear documentation of the evaluator’s legal status in terms of that person’s right to access treatment information. For example, is it being done under a purchase of services agreement, as a second opinion/ consultation, or via a specific release of information that clarifies who can provide treatment information, and what type, to the evaluator. (Level III decision in Case No. 00-SGE-01 on 6/29/01.)

  6. Generally, information from a patient’s treatment records cannot be released without the client’s written informed consent. But there are exceptions to confidentiality laws allowing for release of information without a patient’s consent. One such exception stems from a 1988 Wisconsin Supreme Court decision in the Schuster case. In that case, the Wisconsin Supreme Court said that mental health therapists had a "duty to warn" any person who may be the specific target of a threat of harm. The patient was angry with a particular person and expressed that anger to his therapist. He did not think that he had specifically threatened to harm that person. However, if anger is expressed in a way that is assessed as threatening toward another person, there is little choice on the part of a mental health therapist but to share that information with a person who may be the target of potential harm. In this situation the threat was passed on, but no other treatment information was shared. That disclosure was not a violation of the client’s right to confidentiality of his records. (Level III decision in Case No. 00-SGE-12 on 8/6/01.)

  7. A patient, who had complained about her therapist and physician, expressed concerns about the confidentiality of her involvement in the grievance procedure and any follow-through that had occurred with her provider. She alleged that the entire staff of the service provider knew about her complaints. The director of the service provider noted that the record keeping system for grievances was entirely separate and that only staff with a "need to know" are given access to or information about the filing of grievances. Only a select group of management and treatment staff were aware of this patient’s grievances and information about them was not available to others. It was found that the confidentiality of this grievance was honored and no rights violation occurred. (Level III decision in Case No. 00-SGE-03 on 9/12/01.)

  8. A patient wanted to bring a friend to her therapy sessions. The service provider agreed that there are times that it may be appropriate, especially if the person is a primary support person for the client. Bringing another person to a therapy session requires a signed release from the patient. Since the requested remedy was provided, this issue was considered resolved. (Level III decision in Case No. 00-SGE-03 on 9/12/01.)

  9. A patient complained that his therapist allegedly asked him if his wife was having an affair. He responded that he would kill her and her boyfriend. He also threatened to kill the therapist. The therapist discussed this with her supervisor and was instructed that she had a duty to warn the wife of the threat. The therapist informed the wife and the police. When the police questioned the husband, he threatened to harm them, too. These threats led to his emergency detention. The therapist’s actions were appropriate under the circumstances. She did have a duty to warn where threats were made about immediate harm to specific people. (Level III decision in Case No. 01-SGE-06 on 10/18/01.)

  10. A service recipient asked a temporary receptionist for a grievance form. The temp asked other staff where the complaint forms were. The case manager heard about the request and asked the individual to come to her office to discuss her concerns. The grievance she wanted to file, however, was about her case manager. There was no evidence that anyone tried to talk her out of filing a complaint, nor any indication of reprisal, retaliation or discrimination because of her grievance. There was no violation of her right to file a complaint. The temp asking other staff where the grievance forms were did not violate her right to confidentiality. (Level III decision in Case No. 01-SGE-05 on 11/29/01.)

Next Set of Decisions

Last Updated: November 07, 2006