Continued from Commentary on Opinions of APA Ethics Committee III:
Several opinions address questions related to release or publication of information, what HIPAA calls protected health information, obtained by the psychiatrist during treatment. What I find particularly troubling is the recurrent publication of case information in a variety of media with no indication that the patient has authorized release and no indication that the information is fiction. Even if the patient has authorized release of the information I believe the patient may have felt coerced to do so or that at best responding to such a request places an undue burden on the patient.
A.1.c. (1993, page 6)
In this case a former patient has joined a group to which the psychiatrist already belongs. The committee advises the psychiatrist to ask the former patient whether it might "be troublesome" for them to belong to the same group. This situation presents a real world dilemma where I see no perfect answer. Often with such situations it seems that ethics committees want us to believe there are ethical and unethical ways to proceed. But here if the psychiatrist leaves, the patient may feel responsible. The psychiatrist could ask the patient to leave, but the patient would have every right to stay in the group. The proposal of asking the patient, however, may unduly burden the patient, who might feel compelled to assent to the psychiatrist remaining in the group even if he does find the situation uncomfortable. We can argue that the psychiatrist should make the decision. If both remain, further awkward situations might develop over time. No mention is made of whether this is a psychotherapy patient. Should that make a difference? Regardless, the patient might never feel free to return for more treatment in the future. And in a small community few other psychiatrists might be available. If this occurred during treatment, one might expect a recommendation that this might become a matter for discussion in sessions, but I can argue that the patient pays for treatment of the patient, not for discussion of situations to a degree created by the psychiatrist.
I would make the same argument in A.2.d. (1989, page 9) which involves a similar relationship where the repercussions for the psychiatrist to escape the situation would be prohibitive. In this case the psychiatrist's landlord sells the building to a former patient. Here the response rightly states the purchase is "between your landlord and your former patient," however I disagree with the recommendation to "explore distortions" in the relationship if the patient returns to treatment. This kind of recommendation should only apply to psychoanalytic/psychodynamic treatments, and is inappropriate in the context of general psychiatry.
A.2.e. (1989, page 9)
In this case the psychiatrist wants to take patients on a book promotion tour. The opinion correctly discourages the practice while wrongly attributing the response to "tranference", but by placing the word "freely" in quotes referring to the giving of consent, correctly implies that consent may be anything but "free."
D.2.b. (1993, page 22)
Here we have a question of use of video of psychotherapy session for professional workshops or national television. The opinion indicates the practice would be acceptable for the workshop provided there is "informed consent," but discourages the practice for national television, supporting the latter recommendation with an unacceptably vague reference to the public's perception of psychiatry. Again, I challenge the notion that such consent can be "freely" given. However, the consideration of the public's perception of psychiatry is absolutely legitimate. We as a profession hold an ethical interest in ensuring that members of the public will feel confident that when they seek treatment the psychiatrist will ask for nothing other than money in return. No sexual favors. No permission to publicize the case.
D.4.g. (1990, page 24)
This case again relates to use of a video record of a session for a workshop, but with the requirement of free consent more rigorously stated: "fully informed, uncoerced... not obtained by an exploitation..." I believe this is impossible.
L.1.a. (2003, page 53)
In this case the psychiatrist wants to allow a "drug sales representative" to attend a visit with a patient. The opinion this time states, "there is no way to assure that the patient does not feel coerced into giving consent." I agree, but how is this different from the situations described above? It is my contention that the patient must never be deemed to have given free consent except when the release of information will directly benefit the patient as for transfer to another provider or for consultation.
R.4.a. (1977, page 80)
This case involves a role conflict, where the student health psychiatrist's employer wants an administrative assessment of the patient. Affirming the above, the ethics committee warns against releasing a report of such an assessment, "since the consent may not be freely given but coerced."
R.4.b. (1993, page 80)
The opinion in this case seems to contradict those above: We are told trainee psychiatrists do not need to obtain informed consent to present the patient's "therapy" (whatever that means) in class discussions and in supervision groups. What makes this situation different?
Q.4.c. (1993, page 76)
Here the question involves use of records possessed by a now deceased psychiatrist for research. For this "lofty" purpose however informed consent does not suffice. According to the committee one must obtain "highly" informed consent. There is no explanation of the distinction.
Q.4.a. (1976, page 75)
The questioner in this case wants advice on publication of a psychoanalytic case book. Here the committee once again, I believe improperly, burdens the patient by suggesting that informed consent include asking the patient to review the material. I argue that no patient she feel obligated to devote time to such an endeavor with no expectation this will benefit the patient, but only that it will benefit the psychiatrist. Furthermore, we cannot expect the patient to possess the knowledge, skill or experience to make such a decision. However, I do agree with the committee's statement that, "The problem of disguising is not always easily resolved." Here we need more guidance from the committee. Case information will be published. Disguise may occur on a spectrum. I can surely say, "I treated a man with olanzapine" without fear of violating confidentiality, and hopefully with having to obtain consent (informed, highly informed, or otherwise) from every patient about whom that statement might be accurate, or about a particular patient I might have in mind while making the statement. But gradual addition of details, and a host of other factors, moving toward the other end of that spectrum will inevitably lead me across the ethical line. We need guidelines to help us avoid this, and it is not fair to our patients to ask for consent in an effort to shift responsibility away from ourselves.
In the next installment I will address the question of consent for publication of psychiatric cases from after the fact: Commentary on Opinions of APA Ethics Committee V