Court: Patient/psychiatrist privilege means state can't demand records in cases of possible prescription abuse
The Supreme Judicial Court ruled today that a state law that makes psychotherapists' patient records private has no exceptions under which state investigators could take a look at them to determine whether the doctors are inappropriately prescribing drugs to their patients.
The ruling comes in the case of a part-time pain specialist, identified only as John Doe. Doe came under the scrutiny of the state Board of Registration in Medicine when another psychiatrist complained to the board that a former patient of Doe's was now seeking help in kicking an addiction to narcotics prescribed by Doe. The board demanded records for 24 of Doe's patients; Doe refused to hand them over. The court said Doe was right:
There is obviously a conflict between the confidentiality interest underlying the psychotherapist-patient privilege and the board's need to obtain medical records in the course of its investigations. The Legislature has resolved that conflict in favor of confidentiality by declining to enact a statutory exception to the privilege for board investigations into physician misconduct. With no constitutional considerations implicated, we accept the legislative judgment.
Comments
Good!
Pain specialists are often restricted in what they can do to help a patient by the having to cover their rears against the mentality that it is better for people to suffer extreme pain than have any risk of addiction whatsoever.
Accountability yes, witch hunts no.
Doe came under the scrutiny
Where's the witch hunt? They responded to a specific complaint.
The "witch hunt"
After getting the initial complaint, the board asked for his records on two dozen more patients.
The affidavit makes for some
The affidavit makes for some alarming reading:
...and then, a little later on, we find this gem:
If this guy is a legitimate pain management specialist being unfairly persecuted by a state board, then I'm Santa Claus.
The case itself focuses on whether the board should be able to rifle through the records it decides are of interest, in a search for misconduct, based upon the single documented case and the suggestive prescription records. I understand the SJC ruling; patient confidentiality is a principle well worth safeguarding. But the decision strikes me as an appeal to the legislature. The status quo is plainly intolerable. What's needed is a precise provision, shielding patients while enabling the licensing board to follow up on allegations of misconduct, when circumstantial evidence appears to validate those allegations.
Yeah, it gets fuzzy...
Generally, the courts can't request confidential records unless the individual (or someone on his/her behalf) is alleging mistreatment of him/herself. This is generally a good thing; the boards allow practitioners to employ all different theoretical orientations and have different ways of treating folks, so long as there are no major ethical abuses. The boards can't pick through any records they want to see if we're ineffective or unorthodox or anything like that. It's a free market, consumers need to be informed, and they're free to shop around if a particular provider doesn't work out.
I frequently see clients who've seen other people whose approach I disagree with, and I'm sure others have heard about my approaches and disagree with them. But no one gets to see my records unless an individual is complaining and personally releases his/her records, or the offense is sufficient to warrant my records being subpoenaed -- this would either be probable cause that I've committed a crime, or investigation of abuse of an elder/child/PWD, etc.
In this case, it sounds as if the provider in question has been upfront in acknowledging what are likely some ethical issues. The board IS investigating, the individual is complying, and it will probably end up that the board decides the individual isn't practicing within their scope of ethical practice. There's no need to set a precedent that confidentiality can be violated without a criminal complaint. (Note that the individual may have violated drug laws, but this isn't criminal conduct against a patient like assault or abuse or fraud would be.)