You can have a face-to-face conversation with a friend, but how do you do that if you want to talk to a therapist? No therapist is gonna make an exemption and leave their phone in another room, not to mention, they literally write their notes into the computer system, instead of on paper.
And with lawyers? I just read about how Luigi Mangione’s conversation with his lawyer is being unlawfully recorded. How do you even have a conversation with your lawyer if you are in custody and they could just hide recoding devices all around the jail?
Sure, maybe they can’t use the evidence in court, but they could just leak an out-of-context audio clip to the press to win the “court of public opinion”.
I am a therapist, at least in America you should know that your therapy records are not fully confidential and are subject to subpoena. They are confidential in the way that if a cop asks for them I will tell them to fuck off, or if a random person does the same thing applies.
But you should be fully aware that psychiatric and medical records do not have the same rights that you would have with a lawyer or a clergy member during confessional. If I see you, my records are eventually subpoenaed, and I refuse to release them I can be held in contempt and potentially jailed. I can also be compelled to testify but this is extremely uncommon, basically unheard of.
This is absolute bullshit and a good therapist should do two things: they should make this clear to you and they should document in a way that skirts the line between “enough to pass an insurance audit” and “as vague as humanly possible”. There are many ways to go about this.
Additionally if records are subpoenaed I can push back against the subpoena. However, this can be difficult and very expensive. In my experience subpoenas will essentially request everything. “Records including patient notes, assessments, treatment plans, billing information, medical imaging, etc etc etc for the entire duration of treatment”. Stuff that doesn’t even make sense for my scope of practice. This makes sense for them; might as well grab everything you can and avoid potentially missing some juicy detail.
Pushing back is tough though. In some instances I don’t have to; the client is aware of the subpoena and is fine with me releasing records. In instances where I can’t I need to retain counsel. My malpractice insurance provides counsel for this but they tend to provide super cheap lawyers from lawyer mills who are just making sure I’m not fucking up anything that would get myself sued. If I tell them I want to push back and avoid releasing they generally heavily discourage this and if really pressed will flat out refuse.
My only option at this point is to fire them and retain counsel at my own expense. Lawyers are goddamn thieves so this can easily cost 2-5,000 assuming it doesn’t end up in some huge battle where I need to retain counsel for weeks. Like many outpatient therapists I’m self employed so I have to just eat that cost (I think technically I can bill the client for it but that’s kind of fucked up so I’ve never looked into it). If they’re not independent like me and work for a larger agency they don’t have to eat the cost but they also usually don’t have the option to do this; most agencies are run by capitalistic cowards who will bend at the knee to avoid conflict and do not have any interest in principles or ethics
On the electronic medical record(EMR) front documentation management systems are fairly secure, or at least as secure as healthcare management systems can be. Psychiatric management systems are a double edged sword; we tend to have smaller boutique solutions tailored to meet our needs. Hospital networks and large medical agencies will generally have something by Epic or Oracle health.
These companies don’t bother with software packages for small practices like mine though, which make up the bulk of outpatient psychological care in America. They want the huge medical networks that will pay contracts of 150k/month. That makes them huge targets though. My software solution is niche and mostly unknown so hackers targeting it is far less likely. On the other hand the resources involved in securing it are far less.
A growing concern with all software solutions is integration of LLM nonsense to streamline writing progress notes. Generally they want us billing as much as possible so this is being pushed hard to raise utilization rates. Some software guarantees the models are sanitized and that once deployed data fed into the model isn’t used for refinement or reinforcement learning but not all guarantee this. This is concerning from a privacy standpoint. Some more intrusive versions record and process the audio of the entire session and spit out a progress note, which is real gross
As for a cellphone being present, I don’t know how to get around that. Normally I would say I don’t think there’s much risk from a cellphone simply being present in the office but I stopped bringing mine in because i noticed the voice assistant would be accidentally invoked at times. I bring it in now because I have a cellphone that no longer runs a voice assistant. This is gonna be a tall order though. Everyone in the world has a phone on them all the time and they very rarely degoogle or disable siri
I don’t tell you this to discourage you from therapy. I tell you this to encourage you to make an educated decision when you select a practitioner. If confidentiality and privacy are meaningful issues to you (and they should be) when you do your consult or first visit ask about how the therapist handles subpoenas, ask about how they handle documentation knowing subpoenas are a risk, ask if they use AI summarization tools.
Yep. My therapy was used against me in a court case. As a result, I just figured out how to deal with most things myself.
It has very negatively affected my health and isn’t optimal, but it’s a lot better than the alternative.
And that’s why I can never do therapy.
I’m far too paranoid of saying the wrong thing and then getting kidnapped by the state and locked up to try to get help.
I’m mildly stable on my own at least
If patients couldn’t be held against their will and if therapists weren’t required to comply with police or report their patients way more people would be able to seek help.
I’ll be honest, you’ve just justified a years long paranoia regarding doctors and therapists I’ve had. The likelihood of me being a target for anything is extremely low, but that fact that any goon in the government can get access to medical records and (even worse) therapy records that can be used against you for whatever purpose they deem necessary is unsettling. I’ve always been leery about letting on what’s going on in my mind, and this kinda just confirms it.
Luckily I haven’t needed to go to a doctor outside of urgent care for simple stuff in a very long time, but I’m also reaching the age where I need to start paying attention, so off to Mexico I go.
I’m sorry, but I don’t think the answer is to be dishonest to you about the reality of the situation
I do believe our government has failed us here and that therapy should be protected communication the same as speaking to a lawyer, for what it’s worth
You make a great argument for never speaking to professionals if at all possible. I already do that, but you also make a great supporting argument.
Is it not possible for the client to know the encryption key and you to not have it, requiring the client to unlock the file if there is to be a session or something?
Do you mean for their medical records? Like I would write their medical records into an encrypted file that they hold the key for?
This is an interesting idea but it would be reliant on the client self funding services. I also don’t know if it would be legal because I am not a lawyer and generally the government wants access to your data
The other aspect that I absolutely glossed over here which was probably a bad idea is that payers retain the right to your records for auditing purposes to ensure their funds are not being wasted (which is a whole textbook of issues).
The vast majority of time this transmits data that is typical for medical services and is somewhat minimal - time and date of service, CPT code(s) (aka what kind of service was rendered, diagnosis code(s) relevant to service, who the service was for, charge rate for the service (how much money I bill). The stuff you see on an explanation of benefits. Insurers don’t typically see actual progress notes.
However, they reserve the right to do so in a few instances: if you file a grievance against the clinician, if they feel the clinician is doing something wrong, or if they simply decide to do a random audit (this is astoundingly rare with commercial insurers but happens much more routinely with government funded plans like Medicare and Medicaid).
In the first instance it’s generally a good thing; the insurer is acting as an advocate for you because the clinician did you harm in some way. In this instance the insurer is actually one of the best people you can have on your team. They don’t actually care about you but they are aligned with your mission; if they can prove clinician malfeasance they can usually recoup tens of thousands of dollars of insurance payments going back years.
The second two are where things are muddier. When that insurance ceo got got a light was shone upon the ugliness of these systems for a brief moment but now no one cares again. Audits are increasingly being triggered by automation: if you are an outlier in terms of utilization then you run the risk of getting your therapist’s practice raided by Optum. Insurance regulations are contractual, not legal, and are often conflicting and obscenely complex. They are written in such a way that it is essentially guaranteed that if complex cases are audited they will find issue with dozens of notes. And the law is on the side of the insurance: they can go back years and rescind payments
So what can end up happening is that you come to therapy from a hospitalization. You aren’t doing well. You see me twice a week because of this for 4 months. You do better. We see each other for another 6 months weekly. You regress, and we go back to twice weekly for 4.5 months. You have optum insurance (a subsidiary of United, but they aren’t the only ones who do this), and their internal systems flag you for high utilization of services
They contact me and tell me that is anomalous and as a result they will be doing an audit of records. They don’t just audit you though, they audit anyone I work with who has optum for the last 3 years. Any note that has even a minor issue: did I not make use of an intervention clear enough? Did I forget to change the session times to actual times from the default 5-6pm? Did we have a session where you were doing poorly and it was more just me listening to you vent and process? All those are retroactively rejected. Now my practice suddenly owes optum thousands of dollars, sometimes tens of thousands. I’ve had colleagues with group practices where this ends up being a 20-30k bill due in 15 days or their contract is voided and all their optum clients are fucked.
The problem is self funding services is a mixed bag. With overheads even as a telehealth only practice the minimum I can charge for a livable wage of about 50-60k a year is a sliding scale of $45-60 and frankly that only works because I have about 50% of a caseload that’s commercial insurance clients that pay double that. Even with that 45-60 is a huge ask for a weekly or biweekly service, 90-240 a month is a tremendous expense for most people. Therapy should cost nothing, or maybe like $10 a session at most, but if I charge that I will starve. I don’t know a resolution here.
That’s the neat part…you don’t!
I think it’s impossible to have truly private conversations not just with therapists but with any kind of legally mandated reporter. at the end of the day, they’ll always choose self preservation over losing their career just because the state is trying to disappear one of their patients. they can either hand your medical file over or lose their licence.
I’m sure a very small minority are willing to risk their licence by falsifying records (see partisan therapists during the Holocaust), but most of them aren’t brave enough.
If there’s not the threat of them being punished then they wouldn’t fuck over their patients.
That’s the fix
It is legally impossible to have a truly private conversation with a therapist, any therapist should explain this to you. The only relationships where records cannot be subpoenaed are conversations with a lawyer and confessionals with clergy. This is bullshit but it is where the law stands
Any therapist who practices ethically should make this very clear to you prior to engaging in treatment
Any therapist who has their records subpoenaed should question the subpoena and only release records if absolutely and truly necessary.
We have not really had situations where a therapists records are being subpoenaed to justify disappearing an individual and the therapist simply acquiesces in the modern context. If so, I’d love for you to point me to a case where such a thing happens. 95% of subpoenas for therapist records are for custody battles, divorce proceedings, and disability claims. The remainder (which is probably a smaller number) is generally related to criminal cases where a defendants competence is trying to be determined. In these cases the records are often being subpoenaed by the defense to establish a lack of competency.
I will openly concede we appear to be heading towards times that may very well test the moral code of the therapist community in regards to this issue. To further complicate things unlike during WW2 there are now many paths to circumvent a clinicians resistance. If I for example flat out refuse to release a transgender clients records, or alter them, the government will likely go after the vendor of the software I have used to store my records for the past 6 years. I am all but sure they will acquiesce. The overwhelming majority of clinicians are in the same position as me. Many are not independent and don’t even have autonomy over their records; a subpoena may come and they never see it. The agency simply releases them because it is run by executives that do not want to interrupt revenues. It is a scary time
Just get a clergy license? Boom confidentiality.
This is funny but in serious mode many of my clients have pretty bad religious trauma and the protections for lawyers and priests and stuff fall apart if they were used fraudulently so even if I just got it and never said anything to my clients it probably wouldnt actually work
This is a bullshit law. You should be able to speak to therapists and medical staff freely
It’s one of the thing where laws and audit can help a lot. Hospital (and lawyers) are supposed to secure their data. But nobody will care unless doctor loose their licence and hospital management get fired upon negligence with patient data.
You could do what I do. Say all the things. Contradictory things. I never say anything. But what I say is the truth, so I can always fall back and say I told you so. And you’d never know what it is, because I’ve said too much, and nothing at all. Where is the cookie man in our time of vegitables? Now where did I put that corn? I gave it to Dr Katz, medicine woman. I jaywalked just last week! No babies were harmed in the filming of this movie. I don’t know the muffin man, stop asking! Where was I? Where were YOU??? I never had corn in my life. Batman is just a muscular version of Ted Turner. Now have fun deciding what to make of any of this. I never said that.
reminds me of Garak from DS9. telling the truth and lying at the same time every time
You can (and some do) insist, that all phones and other digital devices be left outside or out in a well isolated place like a fridge. Furthermore you can use methods of encryption for both physical notes and digital notes. Neither is completely safe from being compromised, but then again hardly anything truly is.
If you want to be fairly certain to not be monitored, always leave digital devices behind and have meetings in varying locations with few or ideally no other people around. Only discuss confidential information with people you know and trust. Even then, experience from places like East Germany proves, nothing is truly safe from being compromised if enough time and energy is spent on the issue.
