HIPAA permits the disclosure of mental health details for treatment purposes or to prevent harm, but still requires safeguards to protect patient autonomy and confidentiality.
According to the HHS, “Ensuring strong privacy protections is critical to maintaining individuals’ trust in their health care providers and willingness to obtain needed health care services, and these protections are especially important where very sensitive information is concerned, such as mental health information.”
By following security standards and ethical guidelines, healthcare professionals can confidently share mental health information when needed.
Communicating with parties
HIPAA emphasizes the importance of communication between providers and patients for their treatment. When a patient is present and has decision-making capacity, providers can share relevant information with family members, friends, or other designated parties, provided the patient does not object. An open dialogue fosters a collaborative care approach and ensures all stakeholders are informed and engaged.
If a patient is incapacitated or unable to express their preferences, providers should use their professional judgment to determine if information should be disclosed to involved parties. According to this HIPAA provision, temporary or permanent incapacitation should not impede necessary care coordination efforts.
Psychotherapy notes
While HIPAA generally treats mental health information like any other PHI, it affords heightened protections to psychotherapy notes. Providers must obtain explicit patient authorization before sharing psychotherapy notes, except in limited circumstances, such as mandatory reporting of abuse or imminent threats of harm.
Read also: Sharing patient information with authorization
Parental access to minor's mental health records
For minors' mental health records, HIPAA defers to state laws to determine parental rights and the age of majority. In general, parents are considered personal representatives of their minor children, granting them access to their child's PHI, including mental health information. However, exceptions exist when state laws or ethical standards dictate otherwise, such as situations involving abuse or the minor's right to consent to specific treatments without parental involvement.
Disclosure in emergencies and imminent threats
In emergencies, HIPAA allows the disclosure of mental health information without consent. If a provider determines that a patient poses a serious and imminent threat to themselves or others, they should share information with parties capable of preventing or mitigating the harm
Notifying law enforcement and emergency responders
HIPAA permits healthcare providers to disclose limited PHI, including admission and discharge dates, to law enforcement officials for specific purposes, such as locating missing persons or identifying suspects. In situations where a patient poses a serious and imminent threat, providers can share information with law enforcement or emergency responders to prevent or mitigate harm, consistent with applicable laws and ethical standards.
Related: Does HIPAA allow sharing with law enforcement?
Duty to warn and patient notification
While HIPAA allows disclosures to avert imminent threats, providers must also consider state laws and ethical guidelines that may impose a "duty to warn" or require patient notification. In certain circumstances, such as when reporting suspected abuse or neglect, providers must notify the patient about the disclosure, unless it could cause harm to do so.
According to the National Conference of State Legislatures (NSCL), “The duty to warn involves disclosing a patient or client's confidential information if they pose a danger to themselves or others." According to NSCL, some states may require disclosure, "In most states, mental health professionals have a legal duty to warn which mandates them to break confidentiality if they suspect that a client may become violent."
Educational settings and FERPA compliance
In educational institutions, student health information is generally governed by the Family Educational Rights and Privacy Act (FERPA), rather than HIPAA. However, in limited circumstances where HIPAA applies, the privacy rule permits disclosures to parents of minor students or law enforcement authorities, subject to specific conditions and limitations.
Read also: Promoting mental health in schools with HIPAA compliant emails
Personal representatives and healthcare proxies
If a patient has a designated healthcare proxy or power of attorney holder, HIPAA allows the proxy or holder access to PHI. However, providers may exercise discretion in withholding this access if they believe the personal representative could endanger the patient's well-being.
Ethical considerations and state laws
While HIPAA provides a framework for protecting patient privacy, healthcare providers must also understand state laws and ethical standards that may impose additional restrictions or requirements. In cases where state laws or ethics guidelines conflict with HIPAA, the more stringent protections generally take precedence.
FAQs
Does HIPAA apply to information on mental health?
Yes, HIPAA applies to mental health information. It protects all individually identifiable health information, including mental health records. Covered entities must safeguard mental health data, and patients have the right to access and request changes to their mental health records.
Do mental health professionals have to ask for consent to disclose mental health information in an emergency?
Generally, mental health providers should inform the patient about their duty to warn or other instances when confidentiality may be broken. If the patient may cause harm to themselves or others, the mental health provider does not need consent to alert authorities.
Learn more: HIPAA Compliant Email for Mental Health Professionals
Farah Amod
