Sunday, February 2, 2014

Did the VA Violate Patient Confidentiality or Is This Just A Larger Trend?

I saw this post originally on the Shrink Rap blog.  I encourage anyone interested to read the excellent analysis of this situation and a previous one on the Shrink Rap blog.  The original post mentioned that the VA decided that it was in the public interest to disclose confidential medical records of the VA Navy Yard Shooter.  The reader has a choice of two links off the Huffington Post (HP) blog including one that has added commentary from various sources and another is the continuous 7 pages of records that are being commented on.  The arrangement of documents shows the press adding outside color to what are some very plain descriptions of clinical notes about insomnia and some features of how electronic medical records are set up.  The content of the other 107 pages of patient records is unknown.  I have also seen the suggestion that the files were illegally obtained and given to the HP.  I hope this is a case of theft rather than a government sanctioned release of confidential medical documents.  If this was illegally printed off a secure medical record system, the last date and employee number of the person who printed it should be available for investigation.  But after I read the Huffington Post article I came across this:

"The AP obtained 114 pages of [patient] medical records under the Freedom of Information Act after requesting them a few weeks after the shootings. It is unusual for the government to disclose anyone's medical files, but the Veterans Affairs Department agreed that the public interest in the mass killing outweighed [patient] privacy rights in keeping his treatment records secret after his death. In the records the AP obtained, the government withheld the names of all the doctors and others who treated [patient] to protect their privacy."

If it is a case of actual release it is a dangerous precedent.  I know of no legal precedent that allows for a hospital to unilaterally release confidential patient records - even if a patient is deceased, but I am not familiar with exceptions under the Freedom of Information Act.  I have had personal experience trying to get government records and they were never disclosed to me.  Releasing records to the press is probably the worst case scenario.  The press has repeated demonstrated that when it comes to mental illness unless they are trying to write a Pulitzer bound story on the tragedy of mental illness they just don't get it.  Mental health headline stories in this country pay lip service to violence prevention, bash the psychiatric profession and psychiatrists whenever they get the chance, and consistently illustrate that they have no idea why there is a significant problem with untreated mental illness in this country.  How in the world would they be competent or objective enough to analyze any mental health records?

Speculating on the sparse documentation of a clinical encounter is not an accurate way to determine what happened.  Only people who believe "if it isn't written down it didn't happen" would buy that and none of them are experienced clinicians who spend time with patients.

Most psychiatrists are privacy advocates because we understand the sensitive material that is often contained in medical and psychiatric records and how critical that nondisclosure is for treatment.  It is common for people to stop in mid session and ask their psychiatrist: "This is confidential isn't it?  You can't tell anybody about this."  That happens after their psychiatrist has explained the boundaries of treatment and the confidentiality considerations.

I can't help but notice that this disclosure comes during a flurry of financial privacy breaches and warnings from the government to expect more.  Call me a conspiracy theorist, but it seems to me that there has been a concerted effort on the part of our government to compromise the privacy of Americans.  It started with using the Social Security Number as a unique identifier for financial purposes (ironic that the government did not disclose it here in a single case) followed closely by the invention of credit reporting agencies.  After decades of loose regulation and less financial privacy we now see personal data being stolen in millions of records at a time.  We are rapidly headed toward a time when there will be minimal security for personal data and the government seems to be managing that expectation.

Medical privacy is the only thing in the way and in that regard this comes as no surprise.

George Dawson, MD, DFAPA

Supplementary Note 1:  I got an e-mail today (February 3) telling me that TRAC (Transactional Records Access Clearinghouse) has filed a complaint against  Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) for multiple violations of the Freedom of Information Act (FOIA).  I have posted my experience here and how access seemed to very limited to the FBI data that I was interested in on health care fraud by the exorbitant cost they wanted to charge for a lot of information that was probably on a server and could be easily searched.  In this case, from my read of the documents they are just not disclosing the data.  The discrepancy between this non disclosure and the ease of disclosure of protected medical data is striking and somebody needs to find out what it means.  The press release and full text of the complaint is on TRACs web site.


  1. I was confused by the "public interest" statement. Here, you take it as 'in the public interest'...meaning information which may make people safer and be used to prevent future violent acts, but I saw "public interest" as interest by the public, or curiosity. I'm not sure how releasing records of someone's insomnia makes anyone safer. They seem to indicate that the right questions were asked and this was unpreventable from the perspective of the ER docs, but the press has distorted it into the idea that the ER doctors were dismissive, negligent, or lied to. There are other options. ~Dinah of Shrink Rap

    1. The public interest issue is an interesting one with regard to this interpretation. There are plenty of exceptions when it comes to public safety like the duty to warn. Public interest at the curiosity level seems to me to be no standard at all because any journalist can make that argument and package a story to generate said interest.

      A good example is your point about routine records about insomnia. In one of the views of these records the press includes excerpts from outside sources to make them appear more controversial. An even better example was the analysis on your blog about how sealed medical records for the purported purpose of a public safety assessment could be opened by the FBI and DOJ and end up being sold on the Internet.

      Another red flag issue for me here is that FBI behavior when it comes to medicine in general is very poor. Well before 911. there were focused on a political agenda that health care fraud was caused by physicians and spent far too much time reviewing clinical records to "prove" this fact. That approach is totally subjective and you can more or less prove what you want but it led to 10-20 years of wasted time making sure that none of us were committing fraud in the eyes of the FBI.

      The FBI and DOJ and the VA for that matter needs to stay out of the business of releasing private medical records no matter what the motivation, especially to the press.