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International Journal of Law and Psychiatry 42-43 (2015) 19–30

Contents lists available at ScienceDirect

International Journal of Law and Psychiatry

The risks and benefits of disclosing psychotherapy records to the legal system: What psychologists and patients need to know for informed consent

Bruce Borkosky a,⁎, Deirdre M. Smith b,1 a 1800 Lakeview Drive, Sebring, FL 33870, United States b University of Maine School of Law, 246 Deering Avenue, Portland, ME 04102, United States

⁎ Corresponding author. Tel.: +1 304 837 2782. E-mail addresses: drborkosky@gmail.com (B. Borkosky

(D.M. Smith). 1 Tel.: +1 207 780 4376. 2 In this article, we do not distinguish between records

the patient's private information. For the sake of brevity, the Health Insurance Portability and Accountability A Information (PHI).

http://dx.doi.org/10.1016/j.ijlp.2015.08.003 0160-2527/© 2015 Elsevier Ltd. All rights reserved.

a b s t r a c t

a r t i c l e i n f o
Available online 4 October 2015

Keywords: Psychotherapist–patient privilege Informed consent Waiver Disclosure PHI Confidentiality

When psychologists release patient records to the legal system, the typical practice is to obtain the patient's signature on a consent form, but rarely is a formal informed-consent obtained from the patient. Although psy- chologists are legally and ethically required to obtain informed consent for all services (including disclosure of records), there are a number of barriers to obtaining truly informed consent. Furthermore, compared to disclo- sures to nonlegal third parties, there are significantly greater risks when records are disclosed to the legal system. For these reasons, true informed consent should be obtained from the patient when records are disclosed to the legal system. A model for informed consent is proposed. This procedure should include a description of risks and benefits of disclosing or refusing to disclose by the psychotherapist, an opportunity to ask questions, and indica- tion by the patient of a freely made choice. Both psychotherapist and patient share decision making responsibil- ities in our suggested model. The patient should be informed about potential harm to the therapeutic relationship, if applicable. Several recommendations for practice are described, including appropriate communi- cations with attorneys and the legal system. A sample form, for use by psychotherapists, is included.

© 2015 Elsevier Ltd. All rights reserved.

1. Introduction

When psychologists disclose confidential patient records (PHI)2 to the legal system, it is common practice, consistent with legal mandates, to ob- tain the patient's signature on an authorization form. However, this pro- cess may occur so hurriedly or perfunctorily that clients may not fully understand what they have authorized or why, or may not realize that the consent is voluntary (Perlman, 2012, p. 136). Some may sign authori- zation forms against their wishes—due to of a variety of subtle and obvi- ous pressures, or because no alternatives seem available (Damschroder et al., 2007; Greenberg & Shuman, 1997; Hamberger, 2000, p. 90; Knops, Legemate, Goossens, Bossuyt, & Ubbink, 2013; Koocher & Keith-Spiegel, 2008; McSherry, 2004; Rosen, 1977). Many patients simply blindly sign the documents and may view their signature more as a re- quirement to obtain coverage or services than a personal choice (Bemister & Dobson, 2011). Furthermore, guidelines regarding disclo- sures of PHI to the legal system are lacking, making it difficult for psychol- ogists to determine what risks to discuss. Truly informed consent (for any

), deirdre.smith@maine.edu

and testimony, as both concern we utilize the term adopted by ct (HIPAA)–Protected Health

aspect of medical treatment), widely accepted as a legal and ethical re- quirement by the psychology community, requires a more careful process than this (Sokol, 2009), and consent for disclosure of PHI should be no exception.

In this article, we begin with a short review of the foundation of in- formed consent, which arises from the concepts of privacy, psychother- apy, and individual autonomy. Although a required function of psychotherapy, there are a number of barriers to obtaining fully in- formed consent. Considerable vagueness and disagreement about the legal definition of informed consent subsists. Psychologists do not al- ways effectively communicate the information patients need to make decisions. Even when they do, patients may not understand or remem- ber that information. Informed consent is more difficult when it in- volves disclosures to the legal system, because the requirements for such disclosures are often conflated with the requirements for disclo- sures to nonlegal third parties. Furthermore, there is a greater need for informed consent regarding disclosures to the legal system, due to more serious consequences inherent in the legal system. Additionally, the legal system has different goals from those of psychotherapy, and it may not adequately protect the privacy rights of patients. We con- clude the article by describing a number of risks and benefits of disclos- ing (or refusing to disclose) PHI to the legal system, and suggest some recommendations for practice. Appendix A contains a model form for use in an informed consent procedure when disclosure of PHI to the legal system is being considered.

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3 A few states have adopted a “subjective” standard; disclosure of risks and benefits un- der this standard are those that are important to the particular patient making the decision (Berg, Appelbaum, Lidz, & Parker, 2001).

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2. The requirement for informed consent, generally

It is well established that healthcare providers have an ethical and legal obligation to obtain informed consent prior to involving patients in any proposed services (Appelbaum, 2007, p. 1834). This practice is widely accepted as one of the key duties of any good health professional and demonstrates a respect for the patient's right to make informed choices (Doyal, 2001), consistent with most ethics codes. For example, informed consent is required by the ethics codes of every health care profession, in- cluding the American Psychological Association (APA, 2002, standards 3.10, 8.02, 8.03, 9.03, and 10.01), the American Psychiatric Association (APA, 2013, Section 2 standard 10 & 11), and the American Medical Asso- ciation, (AMA 2012, Principles 2.015, 8.08, 8.082, 8.085, 8.121, 10.01, 10.015, 10.02). Most psycholegal commentators assume that the burden of securing consent falls on the evaluator (e.g., Foote & Shuman, 2006); it is such an important part of psychology practice that the current version of the Ethical Principles of Psychologists (APA, 2002) mentions the term no less than 37 times. Because psychologists are required to obtain in- formed consent from all patients, the documentation of informed consent is likely the first formal record of those services (Bemister & Dobson, 2011; Foote & Goodman-Delahunty, 2005).

The reason this requirement was taken on by professionals is due to the power imbalance between doctor and patient; doctors generally have vastly superior knowledge, whereas patients are very often made even more vulnerable by their illness. Providing information and oppor- tunity for decision making on the part of the patient “will help to redress the power imbalance problems” (Hall, Bobinski, & Orentlicher, 2005, p. 200). Current understandings of informed consent may also (perhaps to the detriment of many patients) overlook non-Western cultural norms and values (see, e.g., Blackhall, Murphy, Frank, Michel, & Azen, 1995; Carrese & Rhodes, 1995; Gostin, 1995; Miller, 1992).

2.1. Privacy is the foundation of both psychotherapy and informed consent

The foundation of psychotherapy is the trust that is engendered by the confidentiality between the psychologist and the patient; it has been said to be “so essential … that psychotherapy is rendered worthless in its ab- sence” (Paruch, 2009, p. 519, citing the APA brief in Jaffee v. Redmond). The need for confidentiality is critical, because “psychotherapy is the context in which, perhaps more than in any other, a person is most likely to reveal unflattering information about herself, as well as her fears, vulnerabilities, guilt, disappointments, doubts, and anxieties” (Smith, 2008, p. 79; see also Taylor v. United States, 1955). Effective psychotherapy demands “an at- mosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears” (Jaffee v. Redmond, 1996, at 10); the “mere possibility” of a breach of confidentiality could obstruct the development of the treatment rela- tionship. “The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance” (Paruch, 2009, p. 516, citing Jaffee).

These sentiments reflect a broad social policy (Perlman, 2012, p. 129) in support of treatment for mental disorders, based on the foun- dation that patients have a right to control the disclosure of their private information; this right is closely tied to the legal concept of personal pri- vacy (Paruch, 2009). Shapiro and Smith (2011) note “…the importance of written waivers of confidentiality and that therapists should exercise the greatest caution when a waiver will not directly benefit the client” (p. 74). Thus, when confidential information is disclosed to third parties, informed consent should be a part of the process in the same way that patients consent to therapy itself (Nagy, 2011, p. 74).

2.2. Informed consent is also a legal requirement

Compared to privacy rights, consent rights are relatively new. For many decades, at least as far back as the 1800s, patient consent was lim- ited to the right to refuse, called simple consent; operating on a patient

without simple consent was governed by the law of battery. This was ex- emplified by the New York Court of Appeals in Schloendorff v. Society of New York Hospital (1914): “Every human being of adult years and sound mind has a right to determine what shall be done with his own body” (at 93). What made Schloendorff so memorable was not that the Court harshly rebuked the doctor (equating his actions with trespassing); it was having to remind physicians, as late as the 20th century, “of such elementary restraints on their professional authority in a democratic soci- ety (Katz, 1984, p. 52).

As ethical considerations developed further, the California appeals court in Salgo v. Leland Stanford Jr et al. (1957) introduced the term in- formed consent (but did not define it). In Salgo, the doctor performed a rel- atively new procedure that resulted in the patient becoming paralyzed. Although there were substantial risks of paralysis inherent in the pro- posed procedure, the doctor did not disclose those risks, relying on the tradition that the doctor could use their discretion about what informa- tion to disclose to the patient. Salgo did not ultimately resolve the ques- tion of what information should be provided to the patient, but it acknowledged that the interests of doctors and patients are not perfectly aligned, and stimulated a great debate about where that boundary should be placed.

Informed consent reached a watershed when a federal appeals court in Canterbury v. Spence (1972) completely rejected the doctor's profes- sional discretion to withhold information from the patient. To Schloendorff's disclosure requirement, Judge Robinson added a require- ment for free choice (Katz, 1984, p. 72). Free choice, theoretically anyway, requires that the patient obtain information sufficient to make that choice. The Canterbury decision, now using negligence law, focused signif- icantly on the patient's decision-making process and the importance of the ability to weigh the risks and benefits (King & Moulton, 2006), now known as the “reasonable patient” standard (Boumil & Hattis, 2011).3

Canterbury may not be the final word, however, because, although the court moved the needle, the decision it did not resolve the conflict be- tween “the need for medical knowledge to elucidate the risks of and alter- natives to a proposed procedure in the light of professional experience with the need for medical judgment to establish the limits of appropriate disclosure to patients” (Katz, 1984, p. 74).

Decisions continued to define the requirements for informed consent, making it a fiduciary duty (Moore v. Regents of the University of California, 1990) to disclose any and all information that is relevant to the patient's decision (Cobbs v. Grant, 1972), and courts recognize a constitutionally protected liberty interest to refuse treatment, even where such refusal might result in death (Cruzan v. Missouri DOH, 1990). Privacy, the ethical foundation of psychotherapy, is also a constitutional right (Griswold v. Connecticut, 1965; Roe v. Wade, 1973) that includes the right of self- determination. Thus, informed consent and confidentiality are parallel and corollary rights (Ebert, 2012; Winick, 1992).

2.3. Informed consent is also required in forensic contexts

Not only is informed consent a requirement for purposes of treatment (APA, 2002, standard 10.01), but consent is at least as important in foren- sic cases (e.g., Gold & Shuman, 2009)—particularly since patients may (wrongly) assume that their confidentiality will prevent compelled dis- closure in court-related cases (Greenberg & Shuman, 1997). The American Psychological Association's Specialty Guidelines use the term eight times (APA, 2013). The American Academy of Psychiatry and Law requires consent via Guideline III (AAPL, 2005). Informed consent for fo- rensic services may be the same as or may differ from the clinical context (Ebert, 2012). For example, a criminal defendant has a constitutional right to be warned how information obtained during a psychological evalua- tion may be used in the case (Estelle v. Smith, 1981). A multitude of

4 Two states, MN and NM, are classified as having a hybrid standard.

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informational issues should be addressed during the informed consent process for a forensic evaluation—including legal issues, the limits of con- fidentiality, who may have access to the information obtained, and what will be done with it (Foote & Shuman, 2006; Heilbrun, 2001; Knapp & VandeCreek, 2001; Melton, Petrila, Poythress, & Slobogin, 2007).

3. Barriers to obtaining fully informed consent

3.1. Psychologist-based barriers to informed consent, generally

A number of factors hamper informed consent, but these only serve to demonstrate a need for increased efforts to ensure that consent is truly in- formed. Psychologists may be one of those impediments. Some may min- imize the need for, or resist performing fully informed consent, because they do not agree that informed consent is desirable. The practice has been called ‘bad medicine’ and ‘absurd’, based upon arguments that in- formed consent in the psychotherapy context will frighten patients, that they won't be able to understand or remember the information provided, and that the psychologist's responsibility for the patient's well-being is in- compatible with patient autonomy (Meisel & Kuczewski, 1996). Others believe that it may interfere with the therapeutic relationship or hinder treatment (Handelsman, Kemper, Kesson-Craig, McLain, & Johnsrud, 1986; Kimmons, 1980), that disclosure of PHI is too routine to warrant a formal informed consent, or they lack the time needed for an extensive discussion about every procedure (Braddock, Fihn, Levinson, Jonsen, & Pearlman, 1997; Knops et al., 2013). Psychologists may feel a need to safe- guard material from inappropriate release, resisting any disclosure to the legal system, thus abrogating patient choice (Borkosky, 2014; Koocher & Keith-Spiegel, 2008).

Determination of patient capacity to consent is problematic. While only 3–25% of mental health consultations in hospital settings involve questions about patients' competence to make treatment-related deci- sions, an estimated 48% of hospital patients are judged incompetent (Appelbaum, 2007, pp. 1834-35). The reliability of unstructured judg- ments of competence is poor (Appelbaum, 2007, p. 1835), and the defini- tion of competency and the degree of competency required of patients in order to exercise informed consent is uncertain (Winick, 1992). There ex- ists no authoritative framework for thinking about legal competence, no clear standards for determining it, no national standards, and no formal practice guidelines from professional societies (Appelbaum, 2007, p. 1838). Some psychologists may improperly equate diagnosis of serious mental illness with incapacity (Appelbaum, 2007, p. 1835).

Procedure standards for disclosing information about potential risks are inadequate, and there is little consensus within the field about which potential risks to disclose (Sarkozy, 2010). Furthermore, informed consent standards were developed primarily from physical medicine, and the degree to which they apply to psychology is controversial (Knapp & VandeCreek, 2006). Psychologists may not know which standard (reason- able-physician or reasonable-patient) to apply when determining what information to disclose. As a result, written consent documents may omit relevant information or may not permit patients to apply the infor- mation to their specific decisions about treatment (Appelbaum, 2007, p. 1835).

Even if psychologists agreed about the content of an informed consent disclosure, there is professional disagreement about the appropriate care that should be provided for any particular problem—the type, nature, fre- quency, and length of treatment varies considerably across geographic re- gions, and even by facility (King & Moulton, 2006). If providers recommend different treatment, their informed consent disclosures would similarly differ. Practices vary considerably in regards to informed consent procedures and disclosure of risks (Handelsman et al., 1986; Noll & Haugan, 1985), and the most common source of patient dissatisfaction has been the failure to provide sufficient information about the patient's condition and available treatment options (King & Moulton, 2006).

Furthermore, psychologists do not always effectively communicate the information needed by patients, leading to poor understanding

(Doyal, 2002; Hall, 2001), even in circumstances where a high standard of communication should be required (such as risk of death) (Doyal, 2001). Indeed, the evidence of poor communication is so strong that it is unclear what sense to make of the research that suggests that patients are poor recipients of information (Doyal, 2001).

3.2. Barriers due to limitations of the legal definition of informed consent, generally

Because most statutes and court opinions addressing competency do not provide a sufficient analysis of the concept of informed consent and its elements, or clear standards for determining it, there is no “authorita- tive framework for thinking about legal competence and clear standards for determining it” (Berg, Appelbaum, & Grisso, 1995, p. 347). Statutes that specify a standard for competence are often vague, and offer little practical guidance for those who must apply it (Berg et al., 1995, p. 348). Terms such as “understanding” or “rationality” may be poorly de- fined and used indiscriminately. States are almost evenly split between the physician-based standard (25 states) and the patient-based standard (23 states and the District of Columbia), and there is considerable variabil- ity in statutory language, even within categories (King & Moulton, 2006).4

These differences raise significant questions about the validity of the ‘rea- sonably prudent doctor’ standard for disclosure (King & Moulton, 2006).

3.3. Patient-based barriers to informed consent, generally

Other causes for failure to obtain informed consent may lie with pa- tients; research has shown a number of problems with patients' reception and retention of information, as well as their ability to make decisions. As discussed earlier, the process of consent may be hurried or perfunctory, and patients may feel coerced into authorizing disclosure of their PHI. Cli- ents are often uneducated about their rights and responsibilities related to disclosure of clinical information (Hamberger, 2000, p. 91), and they may not have accurate knowledge of the concepts of confidentiality or in- formed consent to release confidential information (Hamberger, 2000, p. 90; Baird & Rupert, 1987; Jagim, Wittman, & Noll, 1978; Miller & Thelen, 1986; Schmid, Appelbaum, Roth, & Lidz, 1983). Patients may wrongly assume that confidentiality requirements broadly apply in court-related cases (Greenberg & Shuman, 1997), may be unaware whether their jurisdiction has a privilege statute or rule, and/or may be- lieve that the psychologist's ethics code provides adequate assurances of confidentiality (Paruch, 2009).

Patients may not understand the implications of their consent to dis- close information, and may not fully realize that they are permitting third parties to use and share their information (Koocher & Keith- Spiegel, 2008, p. 212). They may not have a sufficient knowledge of their rights (Greenberg & Shuman, 1997; Hamberger, 2000, p. 90; Paruch, 2009), and often do not have sufficiently complete or accurate knowledge of the contents of their PHI to make an informed decision about whether to disclose (DeKraai & Sales, 1982; Hamberger, 2000, pp. 90-91). Some patients completely abdicate their decision making authority, explicitly stating that they want their doctor to make the final decision (Doyal, 2002).

Patients are sometimes unable to understand clinical information and they may not believe that the consent process is of much moral (in the bioethics sense) importance to them (Doyal, 2002). A high percentage of patients make fundamental errors in risk evaluation, even when pre- sented with the simplest information (Doyal, 2001). Patients may not fully comprehend even basic information about conditions, prognoses, and treatments, let alone risks (Doyal, 2001). Even when patients do un- derstand benefits and risks, it is often quickly forgotten—so much so that it is unclear how it could have ever been a foundation for coherent delib- eration about treatment choices (Doyal, 2001). In various studies, only

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21% to 86% were able to recall the potential risks and complications of their medical procedure (Sherlock & Brownie, 2014); 11 studies of risk comprehension for surgery revealed that only 29–36% of patients had ad- equate comprehension (Falagas, Korbila, Giannopoulou, Kondilis, & Peppas, 2009). Patients' recall of the information given can be consider- ably less than the information doctors remember providing; for example, only 9% of patients recalled discussing the risk of the infection in blood transfusion, and only 12% of patients identified fever as a risk (Sherlock & Brownie, 2014).

Mental disorders such as dementia, neuropsychological impair- ments, schizophrenia, depression, and bipolar disorder have relatively high rates of incompetence. In terms of mental health symptoms, lack of insight (the lack of awareness of illness and the need for treatment) has been reported to be the strongest predictor of incapacity (Appelbaum, 2007, p. 1835).

4. The need for informed consent for disclosures to the legal system

Not only is informed consent for psychotherapy an obligation that is sometimes difficult to achieve, informed consent regarding disclosures to the legal system should be considered a separate and distinct need (Dwyer, 2012, p. 112). The requirements for such disclosures differ signif- icantly from disclosures to nonlegal third parties, the risks are substantial- ly greater, and the patient's privacy rights are not always protected because they must be balanced against the legal system's need for information.

4.1. Disclosure problems resulting from conflating confidentiality and privilege

Professionals of all types (scholars, legislators,5 attorneys, judges, psy- chologists, and Boards of Psychology) have difficulty distinguishing be- tween confidentiality and privilege (Bemister & Dobson, 2012; Borkosky & Thomas, 2013; Bernstein & Hartsell, 2005; Boynton v. Burglass, 1991; Kasdaglis v. DOH, 2002; Koocher & Keith-Spiegel, 2008; Perlman, 2012, p. 133). However, the requirements for disclosures to the legal system dif- fer significantly from disclosures to nonlegal third parties; this difference is often not appreciated, increasing patient difficulty in understanding the risks and benefits of disclosure. Some psychologists may assume that psy- chotherapy notes (protected by HIPAA) are not discoverable in court and are then unpleasantly surprised when a subpoena duces tecum requires them to appear in court with ‘any and all documents, reports, and notes’ (Evenson v. Hartford, 2007; Koocher & Keith-Spiegel, 2008, p. 209).

Others, for a variety of reasons, wrongly disclose patient information without obtaining patient consent. In Florida, eight mental health pro- fessionals were sanctioned, over a 7-year period, for such behavior.6 In another case, both the psychologist and the patient's attorney failed to assert privilege, thereby nullifying the minor patient's right to assert privilege (Hughes v. Schatzberg, 2004). Statutes often do not provide a clear explanation about the requirements for disclosure to the legal sys- tem when two or more clients are seen simultaneously in therapy; priv- ilege may only cover communications that are uttered in confidence, so when statements are made in the presence of another family member, the confidentiality of such communications is unclear (Margolin, 1982). The applicability of the psychotherapist–patient privilege is often unclear and highly variable across jurisdictions (e.g., in custody cases) (Boumil, Fretias, & Freitas, 2012; Melton et al., 2007)

4.2. Improper disclosures can be harmful to patients

The goals of psychotherapy and law differ greatly. PHI is created throughout a course of psychotherapy, with the purpose of documenting the emergence and resolution of the patient's thoughts and feelings,

5 Section 490.0147, Fla. Stats. 6 DOH cases 2001-17158, 2004-27669, 2004-28871, 2004-33680, 2005-64734, 2006-

25721, 2006-28836, 2008-4313.

especially those that are conflictual and ambivalent. The purpose of the legal system, on the other hand, is to assign civil or criminal lia- bility or to make other decisions as a means to resolve disputes. Thus, PHI could easily be misconstrued or misused by the legal sys- tem (and therefore be harmful to the patient) (Dwyer, 2012, pp. 112-13; Hamberger, 2000, p. 91). For example, in a typical personal injury civil case (tort, civil rights, or discrimination case), one of a plaintiff's attorney's first tasks is to ask the client to list all current and recent health care providers, including treating psychologists. Information regarding mental health treatment may also be sought in child custody or child welfare cases (where a parent's capacity to provide a safe and stable home for a child is at issue), or in crim- inal matters (where there may be questions about a defendant's competence or mental state at the time of the alleged crime). Mental health PHI could conceivably be sought when the patient becomes involved in almost any type of litigation, such as determinations of civil competency, fitness for duty, guardianship, violence risk, juve- nile delinquency, disability, and disputes regarding educational ac- commodation and employment. Similarly, wrongful refusal to disclose PHI for patients in family court risks loss of access to their children or parental rights (Dwyer, 2012, p. 110).

Attorneys may ask clients to sign a stack of medical information releases, usually blank, which attorneys will then complete and send out with a boilerplate cover letter to each of those providers asking that all of the clients' PHI be provided to the attorneys. This step may be so routine that it is often treated as unimportant (Beightol, 2013). However, there can be significant consequences to a patient when those health care providers release the patient's PHI, particularly in the case of disclosure of PHI from a psychologist; such records can be powerful tools if they end up in the hands of the opposing attorney. As discussed below, there are several potential implications flowing from the release of mental health PHI, some of which the attorney's client (the patient) may not anticipate or understand at the time she/he signs that blank release form, if not clearly explained by the attorney.

The legal system actors discussed herein (patient's attorney, op- posing attorney, and the court) each have different roles with re- spect to a patient's privacy right and preservation of the psychotherapist–patient privilege. The patient's attorney has obli- gations to identify and gather information and potential evidence that could be used to support the patient's position in the litigation, and to advise the patient about the implications of any releases or waivers as part of that process. The attorney also has a duty to pro- tect the patient's privacy by releasing only that information needed to protect the patient's position in the litigation, and, by advocating on behalf of the patient to ensure that his/her privacy is otherwise respected throughout the litigation process. As we shall see, these responsibilities may not always be fulfilled.

The opposing counsel's duty is to act in the best interests of his/ her client, such as the person or entity alleged to have caused an in- jury to a personal injury plaintiff, the other parent in a custody dis- pute, or the state (in an insanity determination). This duty compels the opposing attorney to obtain as much information as possible about a patient's mental health, and to seek (and perhaps use) any other information that may support the opposing position. The court has a role in resolving any disputes about access to, or use of, mental health PHI, to the extent such disputes are presented to it by one or both parties.

4.2.1. PHI and psychotherapist testimony can support or undermine the patient's legal claims

Patients' attorneys obtain their clients' PHI for a range of reasons. The attorney may use PHI to advance the patient's case, such as includ- ing a claim for mental/emotional injuries as part of a personal injury case, or to present evidence of mitigation in a criminal matter. A patient involved in a child custody case may offer PHI to demonstrate that she/

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he is sufficiently healthy and stable to care for a child appropriately or to refute allegations of unfitness. Regardless of the type of case in- volved, if a litigant's psychotherapist is listed as a potential witness, disclosure of the patient's PHI may be required in order to present that expert's opinion at trial (Fed. R. Civ. P. 26 (a)(2); Fed. R. Crim. P. 16(b); Shuman, 2005, p. 6-29; Magee v. Paul Revere Life Ins. Co., 1998). PHI can confirm the dates of treatment, which may establish the amount of damages tied to medical expenses or confirm that the patient has maintained consistency in treatment. If helpful to the case, they can be used to obtain a significant settlement or judgment (Beightol, 2013; Smith, 2008, p. 88).

Although the admissibility of PHI at trial may be limited by evidence rules, they can play an important role; a well-documented record of treatment can provide support for an expert's opinion, whereas deficient PHI may subject the expert's opinion to challenge for failure of an inad- equate basis (Read, 1996). If a testifying expert called by the patient is a forensic psychologist (i.e., not a psychotherapist), review of the patient's PHI by the examiner is critical for presenting a credible opinion that is not only based on a clinical examiner of the patient, but which also takes into account assessments by treating mental health providers (Shuman, 2005, 2-43, 2-44). Absent such review of PHI, the expert's opinion is subject to attack for being manufactured strictly for the trial (Read, 1996).

4.2.2. Opposing attorneys may use patients' mental health histories to un- dermine their claims

Most court rules permit broad “discovery” (information seeking) by the parties, prior to trial (Fed. R. Civ. P. 26(b)); this discovery process is essential to developing an effective strategy by exploring and exploiting all possible routes to advance a party's position. In cases where the patient's mental health history and treatment might possibly be rele- vant, attorneys will usually try to obtain the patient's PHI. For example, in a personal injury case, the defense attorney will try to use the PHI in order to mitigate or respond to the patient's claim (Bales and Ray, 1997). Similarly, the attorney representing the other parent in a custody dispute (or, in the case of a protective custody case, the state) may seek PHI in order to assert that the patient's mental illness impairs his/her parenting capacity.

Accordingly, just as a plaintiff's attorney may routinely obtain a client's PHI as part of an initial case development, opposing attorneys may routinely issue a broadly worded discovery request for the disclo- sure of the patient's entire PHI, including psychotherapy records (Fed. R. Civ. P. 34(a); Fitzpatrick, 2006, p. 2484; McDonald & Kulick, 2001, p. 111). Alternatively, the opposing side may seek to require the patient to execute releases for all healthcare providers, who can then be directly served with a subpoena (Fitzpatrick, 2006, pp. 2479, 2484). Opposing attorneys have strong incentives to gather extensive information about the patient and his/her background, and there is wide range of potential valuable uses of a litigant's PHI (specifically), as part of an overall strategy for defending cases, such as a personal injury or child custody claim (Read, 1996).

For example, if the patient alleges to have experienced emotional distress or a psychological injury due to the defendant's wrongful con- duct, the patient's PHI could undermine their claim if they do not re- flect harm, they suggest that the injury or distress is not as severe as claimed, or that there is an alternative cause for the injury (Smith, 2008, p. 86). The defense could use a forensic expert to offer testimony to challenge the patient's claims, including observations based upon what she/he finds (or does not find) in the patient's PHI (McDonald & Kulick, 2001, pp. 271-272; Melton et al., 2007, pp. 53–54). Prosecu- tors often take a similar approach in criminal matters to challenge a defendant's competency claim or insanity defense (People v. Knuckles, 1995, at 127–129).

Furthermore, a patient/plaintiff may have described the events at issue in the litigation to their therapist. To the extent that those state- ments are inconsistent with other statements or trial testimony, the

statements in the PHI could be used to suggest that the patient has told different stories at different times (thereby calling his/her credibil- ity into question) (Read, 1996, p. 19). The PHI may include statements by the plaintiff reflecting feelings about the litigation itself, which could be used to allege alternative motivations for the lawsuit (e.g., Maday v. Public Libraries of Saginaw, 2007; Murray v. Bd. of Education, 2001, at 156).

In addition, to the extent that the PHI demonstrate that the plaintiff had a preexisting mental health diagnosis or sources of stress in his/ her life other than the event at issue in the litigation (e.g. work, rela- tionship, or family problems), a defense attorney could use such evi- dence to argue that the defendant should not be liable for emotional damages or that the damages stemming from the defendant's liability should be reduced or apportioned (Foote & Goodman-Delahunty, 2005, p. 86; King, 1981, pp. 1356–1357; Mason & Ekman, 1998, p. 495; Smith, 2010, p. 762). Accordingly, a defense attorney may as- sert that she is entitled to obtain the patient's entire mental health his- tory on the basis that it may be relevant to show potential alternative sources of causation for emotional injuries. Defense attorneys try to obtain psychotherapy PHI because they may reveal “prior or concur- rent alternative stressors, such as childhood sexual abuse or marital discord,” which could arguably be a contributing or alternative cause of emotional distress (McDonald & Kulick, 2001, p. 272). Using this ap- proach, for example, defendants have successfully sought and obtained marital counseling PHI in loss of consortium claims (e.g., Price v. County of San Diego, 1996, at 622-23). Defense experts often request access to as much information as possible, to support their opinion about the causation of the patient's psychological condition (Smith, 2010, p. 769).

An opposing attorney may also offer evidence of a patient's history of mental illness to suggest that the patient's conduct (e.g., acting irrational- ly), during the events in question, was caused by such illness, or that a patient's personality disorder was a contributing factor in the events (McDonald & Kulick, 2001; Smith, 2010). For example, the defendants in a police excessive force case successfully argued that they should be permitted to offer testimony of the plaintiff's psychiatric history to sug- gest plaintiff's “state of mind” the night of the alleged assault by the defen- dants (Bemben v. Hunt, 1995).

In the child custody context, courts are usually willing to admit evi- dence of a parent's mental health history, because the central issue to be resolved—what outcome would be in the “best interests of the child”—sets forth a broad interpretation of what constitutes “relevant” ev- idence to answer such question (Paruch, 2009; Waits, 2001). In fact, some courts will not even recognize the psychotherapist–patient privilege in a family law case because they consider the importance of admitting infor- mation about the parties' parenting capacities as overriding any privacy rights (Paruch, 2009; Waits, 2001). Similarly, some jurisdictions have no privilege at all (for either defendant or victim) in criminal cases (e.g., Tex Oc. Code Ann §159.003).

Finally, an attorney may attempt to use a patient's mental health history to undermine his/her credibility as a trial witness, such as to suggest that the patient's statements are delusional or that she/he had an inaccurate perception of the events in question (McDonald & Kulick, 2001; Smith, 2010). Credibility is often a central issue in trials, where the parties present competing, inconsistent narratives regarding events and their bearing on the defendant's alleged liability. For this reason, criminal defense attorneys often attempt to compel disclosure of an alleged victim's mental health history for use at trial (Smith, 2010). This tactic is less common in civil litigation than in the criminal realm, but reported opinions indicate that it is a practice permitted by at least some courts (e.g., Frazier v. Topeka Metal Specialties et al., 2001; Revels v. Vincenz et al., 2004; Sudtelgte v. Reno No. 90-1016-CV-W-6, 1994).

Even if the opposing attorney does not expressly argue that the court should use the patient's mental health history as a basis to discredit his/ her testimony (or to conclude that mental illness was a contributing

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factor to the events in question), the stigma and prejudice that a mental health diagnosis carries may nonetheless influence jurors' and judges' perception of the patient and therefore their conclusions about his/her position in the case (Smith, 2010). Thus, the opposing attorney has an incentive to come up with any argument that the patient's mental health history is relevant to an issue at trial.

In addition, a litigant–patient may be embarrassed or humiliated by the disclosure of personal details contained in such PHI (Dwyer, 2012, p. 112; Smith, 2008). A patient might be questioned about his/her mental health history, specific entries in the therapist's PHI (Bernabei & Schroeder, 2004), or even prior abortions, sexual orientation, or marital problems (Robinson, 1994). A treating psy- chologist may also be deposed, through which she/he may be questioned about the significance of references and details contained in the PHI (Read, 1996, pp. 18-19).

An additional implication of the disclosure of mental health PHI is that, through use of public information requests (or even simple inter- net searches) about the litigation, the personal details may become known to the patient's family, friends, coworkers and others, which can potentially injure the patient's reputation and relationships (Jacob & Powers, 2009). The prospect of disclosure of, and confrontation with, this PHI at trial may intimidate a patient into settling early and perhaps for less money that she/he had hoped to recover or the case is worth. Alternatively, she/he may attempt to structure his/her claims so as to not trigger a compelled disclosure or use of his/her mental health history, thereby limiting the compensation she/he will receive for his/her injuries (Smith, 2008; Streseman, 1995).

4.2.3. The courts' role in the disclosure and use of PHI is not protective of patients

Perhaps surprisingly, courts have little involvement in the protection of patient rights. Consistent with the adversarial system of litigation in the United States, courts do not become involved with disputes concerning disclosure of PHI unless the parties (or, in more unusual situ- ations, a psychologist) bring a dispute to the court's attention. This is be- cause most courts expect the parties' attorneys to participate in discovery without court supervision and only to seek the court's assistance after good faith attempts to resolve such disputes have failed (Fed. R. Civ. P. 37(a)). Judges place primary responsibility on the patient, psychologists, and attorneys to raise the issues implicating a patient's privacy rights. The result of this approach is that courts do not, in fact cannot, have a role in protecting a patient's rights unless and until a party raises a dis- pute. Disputes generally begin when a patient or his/her psychologist (Wright et al., 2005; Hughes v. Schatzberg, 2004) refuses to provide PHI in response to a discovery request or subpoena (Smith, 2008). The law does not always provide clear guidance for judges on how to resolve such disputes (and the easy questions do not usually need to reach a judge), so the outcomes can be difficult to predict (Smith, 2008). As discussed above, courts generally admit mental health evidence, such as that relevant to a personal injury claim (Smith, 2010) or parenting ability (Paruch, 2009).

Defense attorneys in personal injury cases may assert that disclosure of some PHI (such as the PHI of a psychotherapist) should be considered to have “opened the door” to compelled disclosure of a plaintiff's entire mental health history (Anderson, 2013; Fitzgerald v. Cassil, 2003; Smith, 2010). Trial courts (even within the same federal district) take a range of approaches to questions of whether a plaintiff's claim for emotional dis- tress damages can, in itself, constitute a broad waiver of the psychothera- pist–patient privilege, thereby entitling a defendant to disclosure of PHI (Anderson, 2013; Vanderbilt v. Town of Chilmark, 1997) (narrow approach to waiver); Doe v. City of Chula Vista, 1999) (broad approach to waiver). In short, patients who have authorized only a very limited release of infor- mation about their treatment cannot assume that courts will step in to protect their confidentiality and privilege rights against compelled disclo- sure of additional information.

4.2.4. The patient's attorney may not adequately protect the patient's rights Although the patient's attorney may anticipate when a patient's

mental health history will be the subject of a discovery request, far too few attorneys discuss the implications of disclosure of PHI with their cli- ent when they ask the client to authorize release. The uncertainty creat- ed by the varied and case-specific court rulings can make it difficult for the attorney to provide any degree of assurance to the patient regarding whether and to what extent his/her mental health history may be sub- ject to compelled disclosure and use during discovery and/or at trial.

Because the retrieval and disclosure of medical (including mental health) PHI are such a routine part of litigation, many attorneys are not as careful as they should about explaining the discovery process to their clients. Some patients' attorneys may assume that they can wait to see if any disputes about the release of PHI arise, on the assumption that they will manage the problem at that time. Others may not be aware that they can challenge the disclosure of PHI. Thus, many patients are shocked and distraught when they learn that the PHI containing ex- tensive personal, sensitive information have been or must be turned over to people that have harmed them, estranged spouses, and/or strangers. They may be even more disturbed when they see how oppos- ing counsel uses the information to intimidate them during the discov- ery process or to discredit them at trial (Smith, 2008).