Mental Health and the Invasion of Privacy

The following is customary practice in certain circles. A mental health clinician presents a case for discussion with colleagues — sometimes just a few in a seminar room, but sometimes many more. The clinician withholds "identifying information," but does share quite intimate details about the patient: the patient's sexual habits, their moments of weakness, their most insistent fears. There is then a lively and thoughtful discussion, focused on this patient and how the clinician can best help the patient. And then everyone goes home.

I would like to raise a simple but often unacknowledged point about this process. When we engage in these discussions, we do something that we would, under other circumstances, recognize as wrong. We talk about someone's intimate personal details in a public space. In ordinary terms, we invade their privacy.

I would also like to explore the following idea: Doing this remains just as wrong when we do it under the aegis of mental health practice. It is not the worst thing one can do, but it is wrong. The wrong inflicted is about the same order as that made by gossip journalists, by "paparazzi," and by others whose work involves the disclosure of other people's private lives.

Why is this wrong? It seems, at first pass, pretty obvious. When someone tells you the intimate details of their life, and you go and tell a bunch of strangers about it, you have done something wrong. It is perhaps only because this practice is so entrenched that we tend to forget this.

Perhaps a better question is: Why is this not wrong? What justifications are there for it? Here are a few I have encountered.

"They are not identified."

Clinicians make a massive effort to disguise the names and identifying information of their patients. We all agree that if this discussion included the actual names of patients, it would be unethical. But it doesn't follow that omitting names thereby makes it ethical. It's bad when I broadcast the intimate details of Joe Smith's life. But it's still pretty bad when I share those same details, but just don't tell you his name is "Joe Smith."

I think what is in the background of this kind of thinking is "HIPAA ethics." HIPAA is the law protecting patient privacy in the United States. HIPAA violations are unethical, and in this sense following HIPAA is a necessary condition for ethical practice. But it is hardly sufficient. One can violate someone's privacy without making a HIPAA violation.

"Everyone does it."

On one reading, this simply restates the concern. Yes, everyone does it, and that is precisely the problem. On another, the argument is somewhat different. In most areas of medicine, these sorts of conversations are utterly common. Urologists and neurologists discuss their patients in detail (though still without identification), and quite publicly, and this seems clearly ok. Why should it not be ok in mental health as well?

There is a tendency to put mental health treatment under the heading of medical care more generally, and I think this is precisely one area where this assimilation breaks down. Mental health is peculiarly concerned with the very things that people most want to keep private, and this imposes a special burden on the mental health clinician. This is why one would feel untroubled on learning that one's cardiologist had published a paper about one's case, but mortified if one's psychiatrist or therapist were to do the same.

"It benefits the patient."

The strongest argument in favor of current practice is that it benefits the patient. Having clinicians discuss their cases yields insights that can be helpful, both for the patient under consideration and for treatment more generally. And this seems to be, at least in many cases, plausible.

But, crucially, this is not really an argument that the practice does not wrong patients. It is an argument that the harm is outweighed by compensatory benefits. In this picture, the patient suffers iatrogenic harm, but that harm is outweighed by benefits. If that is right, then this argument is in fact an argument for severely circumscribing current practice. How many people need to be present at case conferences? How much violation of privacy is necessary for the patient's good? A sober reckoning with these questions would lead to a much different kind of mental health practice.

Furthermore, if there is a cost-benefit analysis to be made here, it is the patient's evaluation of these matters that should carry the most weight. There can be a paternalistic aspect to current practice, wherein it is tacitly assumed that discussion of the patient's case for their own good is something to which they cannot reasonably object. This assumption needs to be defended. At the very least, all such discussions should require a patient's explicit and informed consent, with disclosure of precisely how, and with whom, their stories will be shared.

"Where is the harm?"

What kind of harm is a privacy invasion, exactly? The philosopher Judith Jarvis Thompson observes that violations of privacy typically involve other violations as well. If I steal your diary to read your secrets, I have invaded your privacy, but I have also violated your property rights. She is skeptical of whether there are any pure violations of the right to privacy, where I harm you simply by invading your privacy, and in no other way.

I want to suggest, however, that sharing a patient's information the way that mental health clinicians do is just such an invasion of privacy. Even in the good case, where the clinician is compliant with HIPAA, does not violate any agreements they have with the patient, and shares their information in a circumscribed arena for educational purposes only, they have still violated their patient's privacy. We would recognize this harm in everyday life, and it is perhaps only the force of custom and habit that deadens us to it in clinical practice.

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