Danger: Electronic Records Ahead

By Stephen A. Ragusea, Psy. D., ABPP

The National Psychologist

Some 30 years ago, I was building a psychiatric hospital in central

Pennsylvania and we discussed the possibility of starting-up the new facilitys
operation with all electronic records. It was the early days of computer use but it
seemed like a good idea at the time. Ultimately, we decided against the plan
because we couldnt find a technical mechanism to guaranty the security of
patient records against the threat of unauthorized access.
That was a long time ago.
The truth is that not much has changed in the last three decades
regarding computer security, except for one thing: Our society seems to have
decided that open health records are more important than confidentiality.
As a society, we not only keep our records electronically, but we
increasingly are making those records available to anybody with a password.
There are real advantages to that kind of system for cardiac patients in crisis.
But, making psychological records available in such a system would scare the
hell out of me; it would be extraordinarily dangerous and fraught with
unintended consequences.

I recently became aware of a story in the Minneapolis Star

(http://www.startribune.com/when-what-you-tell-your-therapist-goesonline/297087601/) that really raised my fear level. According to the Star, the
Minnesota legislature is about to pass legislation requiring that all health care
providers use an interoperable electronic health care record (EHR), allowing
all doctors to view every other doctors notes. Reportedly, that would include
psychotherapy records. The author, Peter A Zelles, Ph.D., goes on point out that:
Perhaps no other form of medical treatment is more based on privacy
and confidentiality than psychotherapy. Patients come to speak the unspeakable.
Much like the sacrament of confession, psychotherapy relies on a closed door
and a belief that what is spoken stays behind that door. Its why we dont
practice psychotherapy in public settings. Once notes are posted, any suggestion
that our treatment is private is untrue.
Zelles, a psychologist practicing in St. Paul, Minn., accurately observes
that the very wealthy will be able to opt out of the system by paying cash to
providers who may be able to opt out of the electronic records requirement by
also opting out of the insurance system, effectively creating a two-tiered system
of treatment and confidentiality.
Under such a system, for those who use their health insurance benefits,
psychotherapy will no longer offer a safe place to share secret thoughts,

nightmares and unpleasant dreams. Unhealthy, potentially destructive ideas that

might have died on the therapists couch will not be expressed and may
eventually be realized to bring harm in the world.
What can a psychologist do about this situation?
We operate within a formal ethical framework and psychologys ethical
system is promulgated by The American Psychological Association. APAs
current Code of Ethics was adopted by the Council of Representatives in 2002,
and establishes our ethical guideposts. As stated in the codes introduction, The
Ethics Code is intended to provide guidance for psychologists and standards of
professional conduct that can be applied by the APA and by other bodies that choose to
adopt them.
And these ethical standards which have largely been supported by our
cultures system of laws clearly establish the necessity for confidentiality
between psychologists and their patients. Section 4.01 of the APA Ethics Code
says, Psychologists have a primary obligation to take reasonable precautions to
protect confidential information.
But what happens when our system of jurisprudence does not support
our ethical code? In their wisdom, the framers of that code made provision for
such an occasion. In section 1.02, the Code addresses Conflicts Between Ethics
and Law, Regulations, or Other Governing Legal Authority.

If psychologists' ethical responsibilities conflict with law, regulations, or

other governing legal authority, psychologists make known their commitment to
the Ethics Code and take steps to resolve the conflict. If the conflict is
unresolvable via such means, psychologists may adhere to the requirements of
the law, regulations, or other governing legal authority.
Ultimately, therefore, we may obey a law that conflicts with our ethical
code. However, if our ethical obligations represent a higher moral standard than
the law, we are obligated to embrace that higher level. And, we are bound to
consider a variety of sources of guidance, including that found in our own
conscience.
In the process of making decisions regarding their professional behavior,
psychologists must consider this Ethics Code in addition to applicable laws and
psychology board regulations. In applying the Ethics Code to their professional work,
psychologists may consider other materials and guidelines that have been adopted or
endorsed by scientific and professional psychological organizations and the dictates of
their own conscience, as well as consult with others within the field. If this Ethics Code
establishes a higher standard of conduct than is required by law, psychologists must meet
the higher ethical standard.
All things considered, we are clearly required to engage in a complex
process in this situation. If you believe that interoperable electronic health

care records are a good idea, then nothing need be done. But, if you think as I
do, that such a system is a disaster waiting to happen, if you think that such a
change would violate our ethical need to maintain confidentiality, then you have
an obligation to take steps to resolve the conflict.
In this situation, I think that psychologists in Minnesota and anywhere
this system is proposed take up arms and fight the initiative, armed with
knowledge. Legislators must be informed about the dangers inherent in
harming the therapeutic relationship, which decades of research has shown to
be at the heart of psychotherapys effectiveness.
Bit by bit, the sanctity of therapeutic confidentiality has been eroded.
Sometimes this erosion has been for well-intentioned reasons, as in the case of
laws requiring that potentially lethal violence be reported. Other times, the
benefit is harder to see, such as when insurance companies require detailed
therapy records before authorizing payment.
But this is different. This is the place where the assault must be stopped.
To do otherwise is unethical; to do otherwise is to facilitate an end to
psychotherapy as we know it.

Stephen Ragusea, Psy.D., is in private practice in Key West, Fla., and is

chairman of the Ethics Committee of the Florida State Psychological Association.

His email is: ragusea@ragusea.com