Does the law protect your information when you access treatment for mental illness? And to what extent?
Section 23 (right to confidentiality), 24 (restriction on release of information in respect of mental illness), and 25 (right to access medical records) of , 2017 covers the relevant rules for information—about a person living with mental illness—in possession of a mental health professional.
The sections also mention which situations qualify as an exception, where the rule of confidentiality need not be followed, like in case of a court-mandated order.
To gain an understanding of how some of these rules factor into the work of a mental health professional, and their interaction with clients, Shruti Ravi from White Swan Foundation spoke to Dr Sunita Simon Kurpad. Dr Sunita is Professor of Psychiatry and Head, Medical Ethics at St John’s Medical College, Bangalore.
Even though these questions have been answered from the perspective of clinical psychiatry practice, the rules are applicable to all people who qualify as a ‘mental health professional’ under the Act.
Psychiatrists, clinical psychologists, mental health nurses and social workers registered under a state authority fall under the definition of ‘mental health professional’ as per the law. While this doesn’t cover counselors, the principles of confidentiality remain the same for them too.
If I were coming in for an appointment with a psychiatrist for the very first time, should I ask them a question about confidentiality? Will they inform me?
Information about confidentiality is shared at the very beginning, before a session starts and before the treatment begins. This is particularly so in the case of a person who has come to seek help of their own accord.
But, sometimes it is the patient who asks me outright about confidentiality, especially if I am asking about something sensitive like relationship issues.
What is the information shared in this first session?
I inform the client that information they share with me will be confidential, unless there is a situation where they are at risk of harming themselves or someone else.
Could you share an example of this?
We often have a lot of students who make an appointment. We tell them that they have the right to confidentiality. But, in case there is a situation where they pose a danger to themselves or to someone else, I inform them that I will have to share this with their legal guardian.
Often, a student doesn’t want their legal guardian to know, so I ask for an alternative contact. But if there is a risk of suicide, I prefer to contact the parent or legal guardian. And in such a case I inform the student that here I will have to break confidentiality.
The information that will be shared will be only to the extent of what is necessary to manage the situation. In case the reason behind why the person is experiencing suicidal ideation is due to something that has happened with their partner, this is not information that the parent or guardian needs to know. So, I explain to the student what is the information I would tell the guardian and what I would not.
The way that I prefer to do this is to make this communication (to the parent) in front of the student, so that it’s clear what information I have shared, and there is no misunderstanding. I use the student’s phone to speak to their parent, and make the call in front of them.
What if I was being sent by my workplace? Do I have a right to confidentiality then?
(Clarification for the reader: An employee accessing counseling through an employee assistant program (EAP) is assumed to be seeking help of their own accord, even if their manager or organization has recommended that they access counselling.
Here, the right to confidentiality—with exceptions made where the person may harm themselves or someone else—will continue to apply.)
Sometimes, a company may send an employee saying that they require a psychiatric evaluation, as the employee is not performing well and there is some behavioral disturbance at the workplace.
While the company says they are doing this to ensure the problems are resolved, the employee may be concerned that they may be doing this with the intention of using this as a reason to lay off the person from the job.
Here, before we begin the evaluation, we inform the person at the very start what the purpose of the evaluation is, that the information they share in this space will be shared with the company, and what the implications and consequences of this may be.
There are also many instances of companies with psychologically-minded HR, where the person has been sent with the genuine intention of focusing on their mental health, so they can perform better. And in such cases, the person has been cooperative and opened up about how they’re feeling, and accessed treatment and gone back to work successfully.
But, there have been occasional instances where the person—because of the fear of being fired—chooses to not say anything and says they’re doing fine, to avoid being fired on the basis of what they may share in such a setting.
Can a workplace directly get in touch with the psychiatrist?
When the employee has sought help of their own accord, in case the company gets in touch with a psychiatrist asking for the client’s notes, they don’t have any right to it—it can’t be given to them, unless the employee gives permission. Usually companies don't ask for the notes—they ask for a report (a psychiatric evaluation).
There may be a case where a transport company has found one of their employees to be drinking during work hours. And that person has then been sent to us to check that there are no longer any signs of substance abuse, before he returns to working.
Here, if the person does not share anything about themselves, then it doesn’t imply that there is no substance abuse. It’ll simply mean that doing a psychiatric evaluation was not possible, and we will have to let the company know this—that a report can’t be furnished in the given circumstance. Here also, documenting what happened, mentioning—in the report—that the person did not cooperate is relevant.
In the case of an employee—a pilot for instance—where a psychiatric evaluation may result in them not being able to continue in their job, arrangement is made in terms of having a social worker help them at this time. With the social worker, alternative job options that they can pursue can be discussed, as losing their job will understandably be a stressful situation for them.
There are situations where rejoining work may require a fitness certificate. Or sometimes, employees want to extend medical leave. If the reasons for leave qualify as ones that can be attested by a mental health professional, then that is fine. If not, then that has to be clearly communicated to the employee/ patient.
Sometimes, there can be an attempt to bribe the mental health professional. We would then document that in the case notes.
When it comes to a legal matter, what happens to client confidentiality? Like in the event of a divorce case.
If it’s say, a divorce setting, a person does not automatically have a right to their spouse’s psychiatric notes. There’s no such norm.
But in case the presiding judge passes an order saying that the spouse’s psychiatric notes must be made available, then the mental health professional is required to comply since this is a court-mandated order.
I’m aware of a situation where during the hearing, the judge asked everyone to leave, except for those required to be present, to listen to what was being discussed. And when such information is being shared, there continues to be the option of sharing only the information which is needed and nothing beyond that.
What will happen if there is an issue where a police investigation is involved?
A police investigation is often about an event that has already taken place. So in this case, we can take a few hours to respond to questions from the police and seek legal counsel in the meantime; asking if it is alright to share certain information. And we will also make a note of the name of the police official who has asked the questions.
There have been times where a person does not inform us that they are out on bail. So sometimes, on the date of the court hearing they may say that they can’t appear because they have to visit their doctor. If this happens, we do inform the legal authorities that the person had not shared this information with us before we started the sessions, and this was not something we had been aware of.
Any situation that is not an emergency allows you—as a mental health professional—to think for a few minutes and consider what the best option would be in such a situation. In an emergency situation, the mental health professional will use their judgment to decide what is the best option.
—”A Nominated Representative is a person you can appoint to take decisions on your behalf when a medical practitioner deems you to lack capacity to decide on your own,” ‘Reviewing the Mental Healthcare Act, 2017’