CONFIDENTIALITY: ARE YOU SURE THAT YOU HAVE IT?

Have you gone through a divorce recently?  Did you assume that your medical records were confidential during that divorce?  Well, think again.  Anyone in your case could put together bogus paperwork and get access to your information.  This is how it happened with me.

 

I recently got news that a former doctor of mine had died of cancer.  This was a doctor I'd seen at the beginning of my divorce, but I stopped seeing him because he was a good friend of my ex husband and did not wish to continue working with me. 

 

When I heard of this doctor's death, as a "just in case" I decided to go down to the medical office where this doctor used to work and I requested a copy of my medical records.  A week later when I came to pick up the records I'd requested from that office, the receptionist told me to wait a minute.  When she returned several minutes later, she told me I did not have to pay for the records. 

 

This raised an alert for me.  Why would anyone give me anything for free.  I'm sorry.  Perhaps I am a little jaded, but this has been my life exerience, particularly during and after the divorce. 

 

Once I got into my car, I immediately pulled these medical records out of the envelope and started to leaf through the pages.  That was when I got the surprise of my life!  A few pages down there was a letter from the Guardian Ad Litem in my divorce case asking to speak to the doctor and stating that a release was enclosed allowing him to do so. 

 

I tried to think back to a few years ago when I signed all those release documents.  For the life of me, I could not recall signing any release allowing the GAL to speak to this particular doctor.  

 

The release document itself looked suspicious. While I was always careful to write the name and address of the person on all the release forms I signed, here the name of the doctor was not written in my handwriting and there was no address included.  In fact, from what I could see looking at the doctor's notes, it appeared to be written in the handwriting of the doctor himself. 

 

Then there was another thing that struck me as funny.  The cover letter from the GAL stated to the doctor that the release form allowed the doctor to speak to him and allowed him to speak to the doctor.  In fact, this was not so.  The release form only said that the GAL could talk to the doctor.  It made no mention of whether the doctor could talk to the GAL. 

 

For people who have gone through this process, ordinarily a release for a medical person to speak to a 3rd party requires two documents--one allowing the medical person to speak to the 3rd party, and another one allowing the 3rd party to speak to the medical person.  Without those two documents, no communication should be allowed based upon HIPAA regulations. I looked through the file very carefully.  From what I saw there was no second release document in the file. 

 

To be sure that this conversation actually occurred between the doctor and the GAL in my case, I next went back to the bills I received from the GAL.  There it was--listed on the bill--a conversation between the two of them just two months before the dissolution of my marriage, a very crucial time in the negotiations regarding the settlement in my case. 

 

When I saw that I was completely disgusted.  First of all, if the GAL in my case called to obtain information about me, even with a release, I would have expected the doctor to call me to let me know and to confirm that he had permission from me to speak to the GAL.  I had received no such telephone call. 

 

And somehow, under all that pressure, I hadn't noticed the entry in my billing statement from the GAL.  At this point, I do have custody of my children, but then the issue was still outstanding. 

 

A cold chill settled in my chest when I considered how close to danger I had been without my knowledge. 

 

The problem is that this doctor was a good friend of my ex husband and a member of the cult like Church I used to go to.  This Church was fundamentally sexist and viewed women's role as largely subordinate. 

 

My ex husband would go to committee meetings at this Church and complain about me.  Sometimes he would criticize my care of the home and our children, and also imply that I wasn't making any home cooked meals for him, truly outrageous behavior.  Once I had brought a meal down to the Church when my ex was unable to make dinner because of a Committee meeting that was being held that night.  He was very upset that I did that.  It was only later that I realized that the reason why it upset him was that the fact that I brought the dinner down was clear evidence to everyone on that Committee that he was lying and that I was not allowing him to starve. 

 

It took me a while to repudiate the sexist agenda of that Church and also to realize how extensive my ex husband's false statements about me were and how the gossip was flying because of the campaign of lies that he was conducting. 

 

It was within that context that this doctor first began to see me.  Among the stories my ex told was that I was mentally ill--wink, wink.  This is actually pretty standard in divorce situations. I have had lots of women telling me that something similar happened to them.

 

Anyway, little did I know, this doctor had heard all of those stories and was highly influenced by them. 

 

That day, as I was reading the medical file I stumbled across a truly nasty misdiagnosis this doctor gave me in a referral to a gynecologist, a diagnosis I will be quick to say no one else has ever given me.  I have to say that really hurt, because, at the time, there was no way this doctor knew me well enough to make any kind of mental health diagnosis.  Furthermore, this doctor was a general practitioner, not a psychiatrist, so he had absolutely no training to make any kind of diagnosis. 

 

I'm glad I was forced to leave this doctor and move on to a woman doctor who is much more knowledgeable and sympathatic about my issues.  Still, I didn't do it soon enough, because the GAL was quick to come along and have a nice conversation with that doctor behind my back and without my knowledge. 

 

I am assuming that my ex husband had groomed this doctor very effectively to make the kinds of statements my ex husband would be happy to have him say.  Meanwhile, as I have said, I suspect that the release documents were forged.  And I suspect that no one in that little cabal of my ex husband, the GAL, and my ex husband ever thought that the good doctor would die leading me to go ahead and get copies of the medical records.  Otherwise, I might never have known what happened. 

 

So when you think you think you are protected, when you think medical documents about you are off limits without your permission, think again.  Nothing is protected, nothing is safe from the prying eyes of people who want to get information about you. 

 

I have spoken about the importance of confidentiality of private medical records in the blog at the link below:  http://divorceinconnecticut.blogspot.com/2011/07/your-psychiatric-records-how.html 

 

The information in this blog is very important, mostly I'd say for civil cases.  In family court, the problem with trying to keep medical records, including psychiatric records, from scrutiny by the other side or the GAL is that you come across as obstructing their access to information required to protect the best interests of the children. 

 

My attorney told me that if I refused to sign releases to allow the GAL to speak to any person she wanted to, then the trial court judge would simply order me to sign those releases.  This makes a mockery of a mental health patient's right to privacy, or the right to privacy of any individual. 

 

So if I had known about the GAL's intention to speak to this doctor of mine would I have been able to stop him?  Probably not.  But at least forewarned is forearmed.  I could at least have brought in more evidence to support my position and debunk anything that doctor chose to say.

 

The law in regard to privileged communications with a professional such as a doctor or a clergyman are contained in CGS 52-146.  CGS 52-146e (b) states that any consent to release confidential medical records must indicate the person or agency the information will be given to and must state for what purpose the information will be used.  

 

If you get stuck with a GAL who insists you sign blanket releases, this provision looks like an opportunity to limit communications.  You could use that provision in the law to add privisos stating that certain topics must not be discussed or disclosed.  Still, once two people are talking to each other this allows for the exchange of all sorts of information off the record and there is nothing much you can really do about it. 

 

I did notice the point that if a Judge orders an evaluation, communication with the evaluator is not confidential.  However, in a situation like that, and, indeed, in any situation where your confidentiality and privacy is in question, the professional doing the examination must provide you with informed consent letting you know about the limitations of confidentiality in advance.  Otherwise, everything said and done with that doctor must remain confidential, see 52-146f(4). 

 

Take a look at your paperwork for your custody evaluation.  Do you have any Statement of Informed Consent letting you know how confidentiality will be handled?  If not, legally speaking, they have no right to bring an evaluation before the court if you did not receive one. 

 

Furthermore, if there is a violation of your confidentiality in regard to your medical records, you can ask the Superior Court for a temporary and permanent injunction to stop the intrusion on your rights.  Also, a violation of your confidentiality can be the cause of a civil action if you are aggrieved by the violation, see CGS 52-146d through CGS 52-146j inclusive. 

 

Personally, this whole topic annoys me.  What does my medical history or my psychiatric history have to do with my parenting skills?  Today, my partner and I were cleaning out the attic.  After a while, he commented on all the work I'd done with my children, the activities I took them to, the music tapes and cds I purchased for them, the videos and the books I made available to them.  Just looking at what I had, the art projects, the brochures, the playbills, it was clear how devoted I am to my children. 

 

Why was it necessary to go any further than that? 

 

What does a label provided by an unqualified doctor acting on the basis of prejudice have to do with the fact that my children are well adjusted and achieving well? 

 

Is it simply a means to bully and blackmail me?  Yes, I'd say that was what it was. 

 

There should be a way to stop these GALs, attorneys, and court mental health people from invading our lives, snooping into our private information, violating our space, and leaving destruction in their wake. 

One thing I would do to prevent this situation is write to everyone that is a concern and reaffirm that you do not wish your privacy invaded and if any one of them receives paperwork purporting to allow access to your medical information you want to have the opportunity to review that documentation before anything is said and done.  That is certainly a word to the wise.