Recommendations for Implementation

The laws of every state contain provisions that govern how mental health practitioners may share clinical information. While the statutes are not entirely consistent across state boundaries, they generally call for the patient to provide written consent if information is to be shared beyond the immediate clinical team currently providing services. Mental health providers are generally trained to take a conservative approach to information sharing, and for reasons tied to both ethics and liability many are reluctant to share clinical information without consent. Indeed, licenses for some mental health professions can be revoked if confidentiality rules are not observed. In some states, restrictions on the sharing of clinical information apply even when the patient is moving from one treatment setting to another. In most states provisions exist that allow for information to be shared in a health care emergency. Some states have specific provisions for sharing information with a law enforcement officer or agency if doing so, as the code in one state puts it, "will assist in protecting the health, safety, or welfare of the patient."[1]

Federal statute and regulations also covers the transfer of information regarding treatment of someone for mental illness or a substance abuse disorder. Federal statute governing information related to substance abuse treatment is more ironclad than counterpart provisions covering mental illness treatment records.[2]

Routine training for both mental health practitioners and criminal justice staff should include familiarization with laws and regulations covering confidentiality and the transfer of medical information. If possible, criminal justice and mental health trainers should find or create training sessions or other forums where issues of confidentiality and information transfer can be addressed in one place by staff from both fields with the goal of reaching a common understanding of the applicable laws.

Additionally, mental health agencies and criminal justice entities should examine internal polices to ensure that they reflect and encourage compliance with relevant laws and regulations.

Deeply ingrained in the training and ethical code of mental health providers is the principle that the individuals they treat have the right to determine who is to know that they are in treatment and what that treatment consists of. For this reason, the first option whenever there is a request for information or reason for information to be shared is to ask the patient to provide consent. In the majority of cases, individuals will sign a form they understand will help them receive needed or continued treatment. Even in instances where the law does not strictly require providers to obtain consent from a client for information to be transferred, the exercise can be an important way of demonstrating goodwill and building trust between providers and between the provider and the patient.[3]

Written consent should be drafted in a way that indicates the purposes for which the requested information may be used, the period for which consent is valid, and with whom it may be shared.   (See Policy Statement 7: Appointment of Counsel for more on the role of defense counsel in obtaining consent.)

In view of the confidentiality statutes and ethical standards already mentioned, and recognizing the limitations of most mental health system databases, access to them should be limited. Mental health staff should be the only personnel to access information maintained in mental health databases.  Protocols should be put in place to ensure that information provided to clinical staff is kept confidential.

By the same token, mental health staff should not present unreasonable roadblocks to information flow that can help law enforcement, courts, and corrections officials make informed decisions about individuals in their custody. If possible, they should set up protocols that can enable an appropriate flow of information to law enforcement, detention, and other criminal justice personnel while preserving the confidentiality and right to privacy of individuals in the system.

Mental health systems in this country maintain databases for a variety of reasons. Some may hold clinical treatment information; many more are maintained exclusively for billing purposes. It should be noted that, currently, few databases can be counted on to provide comprehensive information about the individuals treated in the system. The information usually sought by law enforcement and jail officials, however, can be obtained by development of alternative protocols or practices. (See Policy Statement 13: Intake at County / Municipal Detention Facility.)

The nature of information that can be shared may be governed by state statute. In some places it may be limited to diagnosis, admission to or discharge from a treatment facility, and the name of any medication prescribed. For many purposes, this limited information may suffice. On the other hand, there may well be instances in which more information would be appropriate and helpful in developing treatment plans for individuals whose needs are not immediately apparent or who have complex histories with a bearing on future treatment decisions.

Information intended to help police or jail officials arrange for appropriate treatment for an individual with mental illness who has been arrested or is in custody may prove harmful if utilized by a prosecutor in criminal proceedings.  It is not always in the best interests of an individual for his or her mental illness diagnosis to be generally known. While mental illness may be an obvious factor in many cases, it may not come to the fore immediately in others. In such cases, only the individual (and counsel) should determine whether it is appropriate to bring the fact of mental illness into the case. 

One promising mechanism for allowing a consumer to decide whether and how much information should be divulged is through some form of advance planning.  Some consumers now write psychiatric advance directives to govern their care when they become incompetent or when they are involuntarily hospitalized.  A more practical alternative for mental health/criminal justice partnerships is a specific form of advance planning relating to any future contacts with the criminal justice system.  Individuals who have had previous contact with the law or individuals whose behaviors put them at significant risk should be offered the opportunity through the mental health system to indicate consent for sharing of certain information.  Especially important is the sharing of the name of their case manager or other provider who, once notified, can follow up to ensure appropriate clinical treatment is furnished following the incident.

There is no need for information collected and used for the purposes of research or data collected to assess the effectiveness of systems to retain identifying information.  Data such as name, address, phone number, birth date, social security number, and other information that clearly points to the specific individual should be redacted before such databases are compiled or before mental health system information is shared within criminal justice systems.  If the particular analysis to be conducted does require such identifiers, there must be procedures in place to keep these confidential and thus they should be stripped from the analysis and aggregate reports that are eventually prepared and circulated.

As recommended elsewhere in this document, correctional facilities should engage inmates in pre-release planning, which should include a discussion of the necessity of sharing clinical information with community providers in order to ensure continuity of care.  Consent should then be readily obtainable and either a detailed summary or a complete clinical record can be transferred to the appropriate community mental health program.  As in other information sharing situations, information shared should be the minimum necessary for the purpose at hand. (See Policy Statement 21: Development of Transition Plan.)