Correspondence

DEAR SIR,

The Privacy Amendment (Private Sector) Bill 2000 which was introduced into Federal Parliament in April 2000 will allow patients access to their own medical records except where it can be shown that there is a threat to the life or health of the patient. There is no exclusion for process notes”[1] that may make up the bulk of records for psychodynamic and other psychotherapeutic treatment. The Bill appears to be preparing the way for electronic records which are easily codified and which fit a strict medical model of signs, symptoms, diagnosis and treatment with subjective material excluded. While this model may be able to be adapted in much of medicine, in psychotherapy, subjective material makes up the bulk of what needs to be recorded. The treatment relies as much on the patient not knowing what the therapist is actually thinking (so the patient can project his or her own material) as it does on the careful therapeutic interpretations and disclosures that the therapist decides are clinically appropriate. Proper clinical boundaries require that the therapist have a space in which to record his own private thoughts and opinions in a sense mirroring the patients right to boundaries around what they are willing at any point to reveal to the therapist. The notion that allowing patients access to their own records may interfere with treatment per se is not considered relevant grounds for denying access. I do not know if psychiatrists would be allowed to contract individually with patients to agree to waive their rights to access to make treatment possible or whether psychiatrists would be forced to keep “process notes” private in some kind of legal limbo whereby patients could not have access but they could be produced in a court to defend a particular clinical course of action. I have tried to make my concerns known to the Standing Committee currently inquiring into this Bill (the College and AMA from the submissions I have read appear to have neglected this specific problem for psychotherapists) and my own letter is appended below. Clinicians may also be interested in the following website from the American Psychiatric Association which also discusses these issues:. Our College needs to urgently address these questions including not only whether it is possible to balance the medico-legal requirements with the clinical ethics of producing records which can be read without detriment by patients but also the economic burden on private practitioners for them to be required to produce such finely balanced material. (Update: My understanding is that the report of the Inquiry, just published, has rejected any arguments about objective or subjective medical notes being excluded from the proposed law.)

The Secretary

House of Representatives Standing Committee on Legal and Constitutional Affairs

Inquiry into the Privacy Amendment (Private Sector) Bill 2000

Parliament House

Canberra ACT 2600

Dear Secretary,

Thank you for allowing me to comment on the Privacy Amendment (Private Sector) Bill 2000 and accepting this late submission.

As a clinical psychiatrist and psychotherapist I am very concerned about the impact of this Bill on my ability to perform my work and fulfil my clinical responsibilities to my patients.

My understanding is that patients will be given the right prospectively to examine their medical records unless it could be argued that this information would pose “a serious threat to the life or health of any individual”. My view is that the bill would render psychotherapeutic practice impossible.

When patients come to a psychiatrist and in particular one that works from a psychotherapeutic orientation, one of the main aims and directions of treatment is that they are in the privacy of a highly confidential relationship able to explore their hidden fears, fantasies, dreams and secrets without any fear that these revelations can in any way be revealed or used against them. In psychotherapy these revelations are referred to as “transference” which implies that much of what patients reveal should not be taken as factual well formed decisions or feelings based on the real patient-therapist relationship but also contain elements from past relationships, childhood etc. This provides useful information for the therapy. Similarly, the therapist will have many private feelings and thoughts with regard to the patient which are termed “counter-transference” and these may or may not be revealed to the patient at various times depending on what appears to be clinically useful. The main difficulty in a clinical psychotherapeutic relationship is the development of trust, which develops out of the interplay of transference, and countertransference. Therapists spend a lot of time consider how much and at what point they should reveal their thoughts and feelings to their patients based on the trust that has developed, and the coping capacity of their patients. This is the art of clinical practice. Patients are very curious about what their psychotherapists “really think” and the therapist's neutrality can act as a blank canvas onto which patients then have the opportunity to project their hidden and subconscious ideas.

Nevertheless it is important that psychotherapists keep clinical notes and medical records of the subjective processes that take place in therapy. These are referred to as “process notes”. These notes may contain not only tentative subjective views about what the patients feelings may mean but also the feelings the therapist might have about the patient (counter-transference feelings) for example: the patient made me feel very angry today. These notes are very useful when looking back over time to view the progress of therapy, how thoughts and hypotheses have evolved and found to be correct or wrong. The notes can also be useful from a medico-legal perspective in that for example: if a patient is behaving seductively this can be interpreted and notes in the file made about what is thought and how this has been responded to, and this could be important if a patient were to make false claims in a subsequent medical-negligence suit. Nevertheless a patient may be totally unprepared at that point in therapy to consider their behaviour for example as “seductive” or “acting out angry” the timing may be all wrong, yet by having access to their file they would be able to obtain this information and this could be very disruptive to the therapeutic process.

If a psychotherapist knew that his or her patient could have access to the medical record, the nett effect would be that he or she would have to consider everything they wrote down as a possible communication to the patient, just the same as what one might say to the patient- there would be no private area for the therapist to record his subjective views. This would severely limit what is written down to bare bones of a diagnosis, pathology tests and objective facts. This is more or less what happens now in the Public Sector where there is very little psychotherapy practised. There would accordingly be no legal place for private notes, thoughts and hypothesis which could be legitimately withheld from the patient not because it would necessarily endanger a patients health to read them, but because reading them would make the process of therapy itself impossible.

Psychiatric psychotherapy can go on for many months or even years and for a psychiatrist to try to commit all his private thoughts to memory would only lead to errors being made. In the current system, medical records are private and can only be subpoenaed by a judge who then can exercise discretion about what is revealed. Under the new system the only ground for refusal is if it poses a serious threat to the health of the patient. The notion that it interferes with the process of treatment has not been considered.

I have similar concerns about the possibility of intimate and subjective details being revealed to third parties. For example what an employee might have expressed about his boss etc.

I believe the whole area of confidentiality in psychiatric treatment has not been adequately considered. Patients in order to obtain proper medical psychiatric psychotherapeutic treatment need to have a place where they can reveal their secrets without any fear of disclosure and I believe privacy laws should be strengthened to preclude any breaches of confidence but also their doctors need a private medical record which they can also write down their subjective opinions and thoughts without having to consider the impact of these either on the patient or their possible use or misuse by third parties.

I ask the committee to consider the importance of private psychiatric records as in a class of their own, separate from the usual medical records of facts, diagnoses and pathology tests and that special provisions need to be made to ensure that patients will seek psychiatric treatment if they need it and will not for example, turn to unqualified practitioners because they fear revealing their secrets and do not trust that if they are honest about their feelings and fantasies that these will be in some way used against them. Similarly, treating practitioners need to have a space to work through their own honest hypotheses and private subjective opinions without having to censor or commit these to memory in order to be able consider how best to treat and relate to their patients. It is this mutual privacy that allows the trust to develop that makes treatment possible. Patients come to psychotherapy often because they are self-destructive, one very self-destructive act may be for them to want to examine their own records (often as an angry gesture against the therapist). As doctors all we could end up doing is not keeping these records (even though this then compromises our duties under the Medical Practitioners Act) in order to protect the patients from themselves and this lack of records will hamper proper treatment. Alternatively, the doctor would be forced to keep private notes the legal status of which would be highly uncertain. I ask the committee to either recommend that psychiatric notes be excluded from the provisions of the Act or that a separate category be set up for psychiatry whereby the private notes of the doctor are not subject to the Act but still form part of the medical record.

Thank you for considering my submission.