Can "Getting Help" Hurt?

For Physicians, It Can Be Dangerous, In Ways Few Would Ever Imagine.

Aug 31, 2022

“Getting help” – and here I mean of the mental health care sort, otherwise known as counseling or psychotherapy, or just ‘therapy’ for short – is a good thing. Yes, it can be a bit uncomfortable navigating through some thorny psychological terrain and maybe even more so getting to know your less-than-stellar self.

But I’m not referring to that kind of hurt. I’m focusing on a type of harm that could come to a physician’s career just from going to see a professional to work on mental health type issues.

I certainly don’t want to scare people away from doing their psychological work. I really believe in it. Not only am I a board-certified psychiatrist, I myself was in a long-term intensive therapy for almost seven years! At that, four times a week! (You don’t even have to say it, I can already read your mind. “What?! Are you… crazy?!”) And guess what - it really was helpfiul.

In this piece, I’m especially thinking about the challenges my physician colleagues uniquely face in accessing quality, compassionate, trustworthy mental health care. Already bombarded with burnout, PTSD and moral injury, I'm worried they could be further hurt by covert governmental intrusion into a therapeutic process that they should have had every reason to trust.

Therapy Relies On Trust, and Our Oath of Confidentiality Solidifies Trust

Therapy’s ultimately about helping you make sense of yourself and having a trusted and knowledgeable guide in the psychological territory who’s there exclusively in your interests to facilitate that discovery and healing process.

So much of its efficacy depends on your trust in the guide you have on this journey. Opening up to someone about your deepest feelings requires immense trust. Trust that they know what they’re doing; trust that they can help you and genuinely care about your well-being. Trust that when you open up and share and permit yourself to be vulnerable and to feel, that what you speak about in that office – your nagging fears, your failings and feelings of shame, your hurt and anger, and your deep river of sadnesses – will never be revealed to anyone.

But How Confidential Is Therapy?

When we began using health insurance to pay for mental health sessions, those companies felt, validly or not, that they had a right to determine whether the services were needed and if they were being helpful. Now some would say that’s pretty intrusive; I used to bristle at it myself but came to realize that, with appropriate guidelines, it makes practical sense.

The Slippery Slope of Compulsory Disclosure

But this is where things start to get slippery. What happens when they start getting too nosey and want to know what your client talked about? (FYI, most mental health clinicians refer to those seeking services as clients; psychiatrists tend to refer to their service recipients as “patients.” I use them interchangeably here.)

What happens if they say to the therapist “our review person (or team!) needs to look at all your notes, and if you don’t give them to us, we’re not only not going to pay for future services, we’re going to take back all the money we’ve already paid you.” Yeow! So, dutifully, believing you’re doing what you’re required to do in order to remain on their “provider panel,” you produce all the notes justifying your many forty-five-minute sessions. And yes, your notes contain some intimate details – names, events, tawdry scenes, what was said, how your client felt …”

Do they have the right to demand access to such detailed notes? I suspect not, even if it might’ve been craftily threaded into your “provider contract.” Eventually, the courts saw the danger in that and said all you had to produce to such a third-party payor was the diagnosis and the time-based session codes. And of course, the payer was required under HIPAA to honor strictest confidentiality even of that very limited data.

Then … Here Come the Lawyers

Well, fine enough. But then lawyers start demanding your records, specifically your progress notes. And they generally represent a party in a dispute with your client, say an aggrieved spouse seeking custody, and they’re trying to find out what your client actually said about your client’s spouse, and … whether your patient was ever unfaithful … and whether they’ve ever been depressed before ... and are they on medications and for what conditions?….

In other words, your private record of confidential notes is being prepared as a weapon against your client!

And while your client came to you for confidential help, and you swore by your professional oath to offer exactly that, such revelation of utmost confidential information could not only irreparably harm your client, it could destroy the therapeutic relationship.

And yet, the payor says they have the right, and the lawyer says s/he has the right and backs it up with a demand for your record in the form of a subpoena, literally comply “under penalty.”

Gulp. Well, what’s a good therapist to do?

Do You Comply?

Truth be told, it’s really tricky territory.

You need to know exactly what the law says, and specifically what your duties are regarding protecting your client’s confidences.

Do you have to produce the records demanded? No, not necessarily. But you do have to respond and indicate your stance and whether you’ll submit the requested records or portions of them or whether you object on certain grounds.

And you should always consult with your client about what you’re being asked to produce and whether you have their permission. And document that discussion and their – and your – concerns. In matters like this, it’s always advisable to get specific guidance from an attorney.

But this is not meant to be a legal treatise on what you should or shouldn’t do. Rather, it’s about the principle of the therapist’s profession and the exquisitely vulnerable nature of seeking help for psychological conditions. And why this is particularly treacherous for physicians.

And Then … The State Requires You To Breach Confidentiality

Over time, society through its judicial and its legislative system has determined entirely appropriately that there are certain, thankfully rare, circumstances in which the public good – people’s safety – overrules the sacrosanct confidentiality of the therapist’s office. And so there are special circumstances where you are required to report to some governmental entity or even a potential private party actions that have been disclosed that you have strong reason to believe might cause a vulnerable person or an innocent citizen imminent harm. Such circumstance include child and elder abuse and identified threat of harm by your patient to another named party.

Now, of course, government can’t willy-nilly declare a mandatory reporting parameter, for example “report all left-handed people” or “people who say they have evidence of a disturbing corporate or governmental wrongdoing.” When a government makes a law, it also has to weigh all the other rights guaranteed by both the Constitution and subsequent laws that have been enacted. (Well, you would hope they’d take that tiny extra step. As we’ll see in Delaware’s “Safe Harbor” law, that must’ve been a bit too much to ask.)

As you might imagine, this issue of who determines what a therapist or for that matter any healthcare provider is mandated to report to some governmental agency can get really problematic when this or that exception is made by a legislature influenced by the political and cultural climate. As one example which I’m reasonably certain will soon become prominent, what if a patient in an extreme “right to life” state tells you she’s planning on having an abortion? What if that state mandated your reporting that to … the justice department? We’ll not go down that path right now, but consider that there is an increasing risk that therapists can become tools of the state and be transformed from trustworthy confidantes and beneficent psychological healthcare providers into secret state agents, turning the entire profession into a Gestapo. And that very transformation essentially destroys the identity of an entire profession. This is exactly what happened - and is probably re-emergent - in Russia. Can you imagine telling a therapist in Moscow that you are repulsed by Putin’s war and its human rights violations?

Who Are You As A Therapist and What Do You Stand For?

But consider your role here for a moment. You’re the equivalent of a spiritual confessor. What is said in the confessional stays in the confessional. That is the time-honored ethical obligation of the confessor, and civil society and the courts have respected that.

In a way, you’re like a journalist who’s been given ultra-sensitive information and you were only provided that information on sworn secrecy under legally protected journalist privilege. What if an authority presses you for it? As you’ve surely discovered, honorable journalists have been badly roughed up and then sent to prison for not revealing their source. That’s the oath they take. And it takes tremendous courage to live your values.

The same devotion to the duty of confidentiality applies to a therapist. A client’s confidences must be held sacrosanct. After all, the mental health profession is built on the twin principles of trust and beneficence. In essence, my oath as a mental health clinician informs me that

“I’m here to use my knowledge and skills to do the best to help you and not hurt you. And I create this safe space for you, for both of us in this encounter, that is protected from intrusion, and I offer you my word that I will not reveal your deeply held thoughts and feelings and the events of your life that you’ve shared with me.”

The Duty to Uphold Your Client’s Confidences

Perhaps the most important theme here is that as a therapist you have not just a right but a duty to uphold that client’s confidences to the best of your ability. And the reason you uphold that duty is not just to protect this immediate client’s privacy but on behalf of the bedrock principle of confidentiality of this utmost sensitive psychological health information as one of the foundational principles of the mental health profession.

What I and many others in the mental health profession have seen is a progressive erosion of those principles and an almost reflexive catering to any demand for production of records that seems legitimate.

Knock, knock on your door. “Hello, I’m a board investigator and I demand all of your client Dr. Jones’ records.”

And too often the reflexive response “Oh, okay,” says the naive therapist. “Let me print it out for you right now.”

I’ve spoken in depth with over five hundred physicians over the past decade about critically important physicians’ rights issues, and confidentiality of their utmost private mental health issues (known in various statutes as “protected health information” or PHI) is an exquisite concern. In fact, it’s so up there in importance that many physicians are afraid of getting help for this very reason of unprotected invasion of privacy and violation of confidentiality.

But Why Are Physicians At Higher Risk?

You see, as a result of what is shared in that confidential therapeutic setting, no matter how "ordinary" and entirely non-limiting the diagnosis may be, when disclosed on demand to a quasi-governmental administrative agency such as the generally non-overseen state medical board, that physician client may be forced to have a “mental evaluation” by the board’s exclusively contracted Physician Health Program (PHP) which conducts its own due process-deprived “screening.”

And simply as a result of that, that physician can be harmfully compelled, with no clinical justification or any comparable professional practice protocol, to submit to a so-called “fitness-for-duty evaluation” conducted by that PHP’s specially selected non-neutral evaluators out of state at a cost of $6,000 to $10,000 for a four-day “assessment,” facilitated by polygraph interrogation (yes - see footnote) in an environment also thoroughly devoid of due process1. What they are compelled to share in this dystopian facade of a therapeutic evaluation may then be used against them to deprive them of their civil and human rights. The board may even make its incontestable diagnostic pronouncements public, subjecting them to ostracization and humiliation.

They could even be made to cease practice immediately and be put on leave from their hospital employment. And they won't be able to return to work until "the matter is cleared up.” And that means being compliant with everything the PHP demands. Objecting to the PHP demands only means a prolonged absence from work. Absence from one's appointment at a hospital for more than 30 days can result in an automatic reporting to the National Practitioner Data Bank raising red flags for any future employment anywhere in the United States.

The legal proceedings in trying to extract oneself from this nightmare can go on for years and cost hundreds of thousands of dollars. This entire Kafkaesque process begs for federal scrutiny.

Getting Help Confidentially and the Unrecognized Dangers of Special Mental Health “Safe Harbors” For Physicians

(For background on Safe Harbor laws and Delaware’s in particular, check out this piece.)

And this issue becomes even more urgent as we examine a crop of remarkably similar emerging laws that uniquely pose great jeopardy to physicians who are seeking mental health help, ironically under these laws’ “safe harbor” provisions.

As you can gather, I’m not just “interested” in this issue as though it were a theoretical quandary for a retired shrink. In fact, I’m as deeply disturbed about this particular type of invasion of deeply personal privacy, its brash and sadistic psychological assaultiveness, and its indifferent abuse of the beneficent therapeutic process as I am about the irreparable career damage it causes. And I’ve seen firsthand the permanent harm that can come when the sanctity of one’s private psychic space is violated.

There’s so much more to cover, not only on this critically important confidentiality issue, but its relationship to a tangled matrix of hugely thorny issues like:

forced mental exams ordered on “anonymous concerns” and forced treatment by a government-selected provider at career gunpoint;
diagnosing the “potential for impairment” and killing the careers of those who protest;
infallible – and incontestable – state psychiatric “fitness-for-duty” diagnoses and their pronounced dire prognoses (future predictions of impairment severity and capacity to function);
crowd-shaming via board public charges for … having an illness, or maybe just an alleged one, or maybe even just potentially having one;
the absence of fairness and integrity in such medicalized ensnarements and the critical need for a medical “due process” provision when subjected to a state medical board-ordered “mental” or “fitness-for-duty” exam;
the disturbing trend of board and PHP mandatory “referral” to private, for-profit rehabilitation gulags, done with state complicity;
oh lordy ….

Yes, Serious Concerns, Weighty Stuff … And It’s Really Important For Us To Take A Close Look And Do Something

It’s an interesting phenomenon, isn’t it, that unless we’re in the immediately affected zone of harm, we’re inclined to zone out. There's so much weighty stuff going on in the world. We do it with climate, nuclear war concerns, homelessness … you name it. Too long in any of it and you just want to jump to a distraction, like playing mind-numbing games on your iphone or newly taking up serious substance abuse, just to block out this dystopian nightmare ….

And that's all a normal response to overwhelm. The natural psychological reactions to overwhelm are shutdown and avoidance. But especially if you're somebody who's actually caught in this quagmire or someone who's otherwise involved in this domain of concern, I encourage you to resist that temptation to pull away. Likewise if you’re just someone concerned about physicians’ well-being.

What if we could mentally prepare ourselves (“yes, it’s weighty, but it’s what we’ve got to attend to”), use our smarts to dig into the tangled mess, and figure out how to stop this craziness? And what if we could actually have a decent time doing it? And make the world a better place for having done it! That's what I am proposing to do over the next several pieces.

One thing’s for sure, staying uninformed and feeling powerless and overwhelmed isn’t going to change anything. Nor is staying ‘under the influence’ or spending the rest of your life taking selfies.

Only finely tuned understanding of the challenges, deeply felt concern, and determination to make change happen will. And I’m convinced, beneficial change is indeed possible. Why? Because it has to be.

Stay tuned for some deep dives (including into some very unsafe harbors), and some explosive paradigm-shifting approaches that could bring this Kafkaesque craziness to a halt. And be sure to get involved in the discussion via the comments section below.

A reminder: I’m not a lawyer. Even though I’m getting pretty familiar with some of these obscure legal issues (ADA, HIPAA, 42CFR Part 2 - imagine! who reads this stuff?!), I’m not a JD and anything I write that might touch on a legal issue is neither a “legal opinion” nor legal advice.

That doesn’t mean I don’t have opinions on legal issues. It just means that if you take any course of action in any legal matter that I’ve opined on thinking that it may finally get you your day in court, you need to realize you’re more likely to leave that court in an orange jumpsuit. So, in life-and-death matters like defending your career and taking on the powers that be, it is always advisable to get utmost knowledgeable counsel. (And … good luck with that.)

Know others who are interested in confidentiality, in the binds physicians face in getting help?

Physician Interrupted

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