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Thursday, August 18, 2011

Confidentiality and Suicide


Rachael L. Baturin, MPH, JD
Professional Affairs Associate

Samuel Knapp, EdD
Director of Professional Affairs

So, you are reading the newspaper or watching the news, and you find out that one of your patients has committed suicide. The next morning you go to your office and there is a message from the patient’s family or the executor of the estate, asking to speak with you. What do you do? Can you call the family or executor and tell them that you have seen the patient? Can you give them information about therapy and help shed light on why the patient may have done this? Can you provide a copy of the patient’s medical record?

According to a legal opinion of the State Board of Psychology, you may not break confidentiality after a patient dies. Confidentiality continues after the grave. Therefore, you can release information only if you have a signed release from the patient before death or a court order from the judge. In Pennsylvania, a subpoena from a coroner serves as a court order.

The psychologist-client privilege is derived from the Judicial Code and is limited in scope to the question of whether evidence is admissible in a civil or criminal proceeding. 42 Pa. C.S. § 5944 states, in pertinent part, that:
No… person who has been licensed… to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist… and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.
A psychologist’s ethical responsibility to safeguard the confidentiality of information obtained during the course of a professional psychological relationship extends beyond the testimonial privilege found in 42 Pa. C.S. §5944. Ethical Principle 5 of the Code of Ethics (49 Pa. Code. §41.61) for psychologists in Pennsylvania states, in pertinent part:

Principle 5. Confidentiality
(a) Psychologists shall safeguard the confidentiality of information about an individual that has been obtained in the course of teaching, practice or investigation. Psychologists may not, without the written consent of their clients or the client’s representative, or the client’s guardian by order as a result of incompetency proceedings, be examined in a civil or criminal action as to information acquired in the course of their professional service on behalf of the client. Information may be revealed with the consent of the clients affected only after full disclosure to them and after their authorization.
The Commonwealth Court of Pennsylvania has held that this duty is absolute and can be waived only after there has been full disclosure and written authorization by the client. (See Rost v. State Board of Psychology, 659 A. 2d, 626).

Thus, because a psychologist must obtain the written authorization of a client prior to the release of confidential information to a third party, it follows that, without written consent, a psychologist may not release to the deceased client’s family any information obtained during the course of a professional psychological relationship.

The rationale for this can be found in an excerpt in The Psychologist’s Legal Handbook (Stromberg et al., 1988):

Although “privacy” as an individual right normally ends at death, the same is not true of confidentiality. This is because it would seriously undermine confidence in the therapeutic relationship while it was occurring if the patient knew that confidentiality would not be preserved following his death. (p. 402)
Therefore, if you received a call from the family or the executor of the estate after a patient commits suicide, you cannot break confidentiality unless you have a signed release from the patient before death or a court order from the judge. Therefore, you would not be able to identify their loved one as a patient and you could not release any medical records.

Reference

Stromberg, C. D., et al. (1988). The psychologist’s legal handbook. Washington, D.C: National Register of Health Service Providers in Psychology.