The HHS Office for Civil Rights issued guidance in question-and-answer format clarifying when a provider may release information regarding a patient’s mental health to family members, friends, law enforcement, and others. The guidance provides that when a patient is present and has the ability to make health care decisions, providers may communicate information regarding the patient’s mental health to family members, friends, and others that “the patient has involved in his or her health care or payment for care, so long as the patient does not object.” The provider may ask the patient for permission to share the information, tell the patient that the provider plans to share it, or infer that the patient does not object from the circumstances, under the provider’s professional judgment, according to the guidance. However, when a patient is not present or is incapacitated, a provider may share such information as long as the provider determines, based on professional judgment, that doing so is in the best interests of the patient.
The guidance also states that when a provider “believes in good faith” that a patient might harm herself or others, and that disclosing mental health information to law enforcement, family members, or others is necessary to “prevent or lessen a serious or imminent threat” to the patient or others, the provider may, “consistent with applicable law and standards of ethical conduct…alert those persons whom the provider believes are reasonably able to prevent or lessen the threat.”
In addition, the guidance provides that psychotherapy notes are treated differently from other mental health information, and may not be disclosed without a patient’s authorization, except as required by law (such as reporting of abuse and serious and imminent harm created by the patient). Psychotherapy notes are defined as “notes recorded by a health care provider who is a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint, or family counseling session and that are separate from the rest of the patient’s medical record.” Psychotherapy notes do not include information about medication prescription and monitoring, session start and stop times, or certain other treatment information.