How many people are aware of the Minnesota law (Minnesota Statute 62J.495) taking effect this year requiring that everyone’s medical records be kept in virtual electronic form, on servers in “the cloud?” The federal government has been encouraging the use of electronic health records (EHR) for some years, but only Minnesota and Massachusetts have required it. This universally accessible interoperable medical record must be kept by all health care providers in Minnesota and includes mental health care in its mandate. There are some important considerations that may be more obvious to practicing psychotherapists than to lawmakers. The Legislature should take a second look at this law, originally passed in 2007.
The presumed benefits of efficiency, cost savings and immediate access to all information about a person’s health have taken priority over the need for a person to feel that health care is private, confidential and safe. As a psychiatrist and therapist in private practice in Minnesota for the past 30 years, I know that the opportunity to speak frankly of embarrassing symptoms can be curative in itself for some people. As treatment progresses, the working relationship between doctor/therapist and patient acts as a holding environment that contains painful distress and allows for objective reflection and development of new solutions. (On the other hand, I have never had an emergency need to see records of what a distressed psychiatric patient said to another provider.)
Most people are not aware that signing a federal Health Insurance Portability and Accountability Act (HIPAA) agreement does not ensure their privacy, but rather, in effect, notifies them that information may be shared by any concerned parties as deemed necessary. That sacrifice of confidentiality is one of the costs of “using insurance.” Confidentiality with the mandated EHR is supposedly guaranteed by passwords and encryption. Informed consent would mean that patients agree to allow health care data to be electronically posted online after weighing risks and benefits. In this day and age, how could we even begin to estimate the risk of storing very personal information online?
One cost of the EHR we can estimate is the compromised outcome that results when confidence in the treatment alliance is undermined. Making medical records available through online servers greatly increases the likelihood that some troubled people will avoid mental health care altogether or that the information collected will be incomplete or inaccurate. Necessary communication between professionals could be accomplished in other more measured, less invasive ways.
Patients should not have to worry which painful complaints or humiliating symptoms are included in the EHR. Doctors/therapists should be allowed to offer the option for complete confidentiality. Practitioners and patients should be permitted to opt out of a system that forces a choice between getting care and privacy. It is not too late to preserve the right to make our own decisions about the privacy of our health records. The EHR mandate should be repealed.
Dr. Deborah Pollak Boughton is a psychiatrist and psychotherapist in Minneapolis.