Presentation before the Health Privacy Summit 2014, hosted by Patient Privacy Rights. Discusses whether privacy protections create obstacles to patient care and public safety.

1. Mental Health Information &
Privacy: Do Protections Help or
Hinder Patient Care and Public
Safety?
Deven McGraw, JD, MPH, LLM
Partner
Manatt, Phelps & Phillips LLP

2. Privacy Protections Matter
• Help assure people will seek care for sensitive
health conditions.
• 1/6 (1/8) withhold information or decline to seek
treatment due to concerns about confidentiality.
• Of particular concern for mental health – as many
as ¼ adults in a given year is suffering from a
diagnosable mental disorder, and nearly 2/3 do
not seek treatment due in part to fear of
disclosure, potential rejection from friends, and
discrimination.

3. Protections for Mental Health
Information
• HIPAA protects psychotherapy notes
– Requires specific patient authorization prior to
disclosure (can use internally; some exceptions)
• Federal laws protecting identifiable information
from a federally-supported substance abuse
treatment program.
• Nearly all states recognize the role stigma plays in
discouraging mental health treatment and have
enacted laws that provide greater protections for
mental health data.

4. Claims about HIPAA
• Doesn’t allow health information to be shared
with family or friends.
• Doesn’t allow health care providers to share
information that critical to public safety.
• Needs to be revised so that information about
seriously mentally ill persons can be more
clearly shared with family members and to
protect the public.

5. Sharing with Friends & Family (1)
• Can disclose information relevant to a patient’s
care to family members or close friends involved
in that patient’s care – except where the patient
has objected.
– Providers can infer that patient would not object
based on circumstances.
– Providers can ask the patient (no need for written
authorization).
– Can rely on prior expressed preferences, as well as
circumstances of the current situation.

6. Sharing with Friends & Family (2)
• If patient is not present, or is unable to agree or object due
to incapacity or emergency circumstances, provider can
disclose if she believes it would be in the patient’s best
interest.
– Covered in more detail in recent (February 2014) HHS guidance.
– Could include circumstances where patient is suffering from
temporary psychosis or is under the influence of alcohol, or if
the patient cannot meaningfully agree or object to the sharing
of information due to his current mental state.
– Once the patient regains the capacity to make choices, the
providers should offer the patient the opportunity to agree or to
object to future sharing.
• “If patient has capacity and objects,” information cannot be
shared.

7. Sharing for Public Safety
• Entities governed by HIPAA are expressly permitted to use
or disclose information to avert a serious and imminent
threat to health or safety.
• Permission is to disclose to anyone who is reasonably able
to prevent or lessen the threat, including the target of the
threat.
• Entities are presumed to be acting in good faith if they are
acting based on actual knowledge or credible information
from a person with apparent knowledge or authority.
• HHS clarified through a letter on January 15, 2013.
• Emergency exceptions are customarily found in other
health privacy laws as well.

8. Sharing of “Mental Health Prohibitor”
Status
• Mental health prohibitor = a person who has
been involuntarily committed to a mental
institution; found incompetent to stand trial or
not guilty by reason of insanity; or otherwise
determined, through a formal adjudication
process, to have a severe mental condition that
results in the individual presenting a danger to
himself or others or being incapable of managing
his/her own affairs.
• Federal law prohibits mental health prohibitors
from possessing or receiving a firearm.

9. HIPAA & Mental Health Prohibitor
Status Reporting
• In January 2014, HHS proposed amending
HIPAA to make it clear that the Privacy Rule
permits reporting of mental health prohibitor
status to the NICS (database administered by
the FBI for gun background checks).

10. Issues for Discussion
• Does HIPAA strike the right balance or do the
regulations need to be tweaked?
– Note: HIPAA “permits” but does not require the
sharing of information with family members and
in the event of a serious and imminent threat to
health or safety.
• If HIPAA does strike the right balance, is great
clarity/guidance needed?

11. Resources
• CDT (McGraw) testimony before Congressional
subcommittee: https://cdt.org/insight/does-
hipaa-help-or-hinder-patient-care-and-public-
safety/
• HHS February 2014 Guidance:
http://www.hhs.gov/ocr/privacy/hipaa/understa
nding/special/mhguidance.html
• HHS January 2013 Letter:
http://www.hhs.gov/ocr/office/lettertonationhcp
.pdf

12. Thank you!
• Deven McGraw
Partner
Manatt, Phelps & Phillips, LLP
dmcgraw@manatt.com
202-585-6552