Confidentiality and Privilege in Maryland

A Brief Update

When may a psychiatrist disclose confidential patient information? Our medical code of ethics is set forth by the American Medical Association and is specifically annotated by the American Psychiatric Association in The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry. Section 4 states:

“A physician shall respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law.”

According to the APA Annotations for Section 4 (not reproduced in its entirety):

  • Psychiatric records, including even the identification of a person as a patient, must be protected with extreme care. Confidentiality is essential to psychiatric treatment. This is based in part on the special nature of psychiatric therapy as well as on the traditional ethical relationship between physician and patient.
  • A psychiatrist may release confidential information only with the authorization of the patient or under proper legal compulsion. The continuing duty of the psychiatrist to protect the patient includes fully apprising him/her of the connotations of waiving the privilege of privacy. This may become an issue when the patient is being investigated by a government agency, is applying for a position, or is involved in legal action.

Under Maryland law, psychiatrists are legally compelled to release confidential information if they become aware of child abuse or neglect. The relevant statute in the Maryland Annotated Code can be found in Family Law § 5-704.  [This statute can be found here, but must be located by entering the name and number.]

Psychiatrists also have a legal duty, which may involve revealing confidential patient information, if they become aware of a “patient’s intention to inflict imminent physical injury upon a specified victim or group of victims.” The duty “is deemed to have been discharged if the mental health care provider or administrator makes reasonable and timely efforts to:

(1) Seek civil commitment of the patient;

(2) Formulate a diagnostic impression and establish and undertake a documented treatment plan calculated to eliminate the possibility that the patient will carry out the threat; OR

(3) Inform the appropriate law enforcement agency and, if feasible, the specified victim or victims of the nature of the threat, the identity of the patient making the threat and the identity of the specified victim or victims.”

The statute specifies there will be “no cause of action or disciplinary action” against a mental health provider for releasing confidential information in this situation. The relevant statute in the Maryland Annotated Code can be found in Courts and Judicial Proceedings § 5-609. [This statute can be found here, but must be located by entering the name and number.]

While confidentiality refers to the psychiatrist’s obligation to keep patient information private, privilege is the patient’s right to bar the release of their health information in legal situations. The patient may exercise this right to prevent a psychiatrist, called as a witness in a legal proceeding, from releasing medical records or testifying about health information. Privilege is addressed in the Annotated Code of Maryland, Courts and Judicial Proceedings §9-109. [This statute can be found here, but must be located by entering the name and number.]  This statute is entitled “Communications between patient and psychiatrist or psychologist,” and was revised in 2014. The statute states:

“Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or the patient’s authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing:

(1) Communications relating to diagnosis or treatment of the patient; or (2) Any information that by its nature would show the existence of a medical record of the diagnosis or treatment.”

In Maryland, there are eight specific legal exclusions to patient privilege. The last two were added in 2014. These exceptions to privilege in the statute are listed below:

(1) A disclosure is necessary for the purposes of placing the patient in a facility for mental illness;

(2) A judge finds that the patient, after being informed there will be no privilege, makes communications in the course of an examination ordered by the court and the issue at trial involves his mental or emotional disorder;

(3) In a civil or criminal proceeding: (i) The patient introduces his mental condition as an element of his claim or defense; or (ii) After the patient’s death, his mental condition is introduced by any party claiming or defending through or as a beneficiary of the patient;

(4) The patient, an authorized representative of the patient, or the personal representative of the patient makes a claim against the psychiatrist or licensed psychologist for malpractice;

(5) Related to civil or criminal proceedings under defective delinquency proceedings;

(6) The patient expressly consents to waive the privilege, or in the case of death or disability, his personal or authorized representative waives the privilege for purpose of making claim or bringing suit on a policy of insurance on life, health, or physical condition;

(7) In a criminal proceeding against a patient or former patient alleging that the patient or former patient has harassed or threatened or committed another criminal act against the psychiatrist or licensed psychologist, the disclosure is necessary to prove the charge; or

(8) In a peace order proceeding under Title 3, Subtitle 15 of this article in which the psychiatrist or licensed psychologist is a petitioner and a patient or former patient is a respondent, the disclosure is necessary to obtain relief.

Navigating the details of confidentiality and privilege in psychiatric practice can be confusing. Specific situations may give rise to questions about information disclosure that do not appear to be addressed by the law. Consulting your malpractice carrier or an attorney who specializes in mental health law can be helpful.

Joanna Brandt, M.D., Chair

MPS Ethics Committee

August 2015