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Taking It To the Grave: Confidentiality After the End of Treatment
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Taking It To the Grave: Confidentiality After the End of Treatment

Alann D. Dingle, Ph.D.

 

            -  A man no longer in love with his wife.

            -  A wife having an extramarital affair.

            -  A parent never disclosed she gave her firstborn up for adoption.

            -  A family business owner addicted to pornography.

            -  A grandmother’s first husband committed suicide.

            -  An accountant was fired but told everyone he quit.

 

A patients shares many secrets only with his or her psychologist without giving thought to what happens to that information after the patient dies 

 

Psychologists provide a detailed informed consent process that reviews office policies, especially the limits of confidentiality (APA, 4.01) and record keeping requirements (APA, 6.01) but may not discuss what happens to the record after the patient’s death.   

 

According to Evidence Code 1013(c), when a patient dies, the privilege, previously held by the patient, transfers to a selected patient representative  (i.e., beneficiary or executor).  If the patient has not designated someone as a personal representative, a person is chosen, usually from the immediate family. That patient representative has the same access to the patient’s medical information as the patient did, which means the patient representative can request the patient’s records.

 

Psychologists must consider how mortifying it would be for many patients to know that their private information would be released to the very people from whom it had been kept secret. A psychologist’s first reaction might be to refuse to release the records.  However, balancing the legal mandate along with psychology’s ethical standards for avoiding harm (APA 3.04) and maintaining confidentiality (APA, 4.01) would have to be resolved (APA, 1.02).

 

During the informed consent process, psychologists should pay attention to issues of confidentiality, record keeping, and record retention. Patients with secrets must be aware of the limits of confidentiality, especially after death. This discussion may direct the selection of an executor.

 

Records must contain specific information, as they are necessary for the sake of the continuity of treatment and to protect the psychologist during litigation or involvement with the Board of Psychology.  Fortunately, psychologists have some flexibility in the specifics of record keeping.   Utilizing the APA Ethical Principles of Psychologists and Code of Conduct (2010) and the Record Keeping Guidelines (APA, 2007, p. 993), psychologists can modify record keeping policies to ensure that they are minimizing a patient’s discomfort.

 

Since 2007, psychologists in private practice are required to maintain adult patient records for seven years following termination.  It is important for psychologists to routinely review their storage practices and cull their files. In fact, according to our record keeping guidelines, a patient “may be served by the disposal of the record as soon as allowed” (APA, 2007).

 

In summary, psychologists strive to protect and respect the rights of their patients and avoid harm by providing thorough informed consent, maintaining confidentiality, having strong record-keeping skills, and following the guidelines for retention of records and destroying obsolete files.  

 

References available on request from the LACPA office, lacpa1@gmail.com.

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