Following is a brief summary of the issues involved:
- Following the events of September 11, 2001, Congress passed the USA Patriot Act. The purpose of the legislation is to make it easier for law enforcement to act to prevent future acts of terrorism. As part of this new legislation, Section 215 of the Patriot Act authorizes certain FBI agents to request a subpoena from a special court.
- FBI subpoenas can require access to any requested records, and the subject of the investigation (i.e., the patient) may not be notified.
- Revealing to clients that their clinical records have been subpoenaed by the FBI is not permitted under section 215 and could result in serious penalties.
- As clinicians we are expected to assert the privilege of confidentiality on behalf of our clients. We are encouraged to notify a client when their records are being subpoenaed and to see that the client, when appropriate, has signed the authorization-to-release-records form before releasing any information.
- The Patriot Act stipulations can create a compromised situation for a clinician, where a client's entire treatment records are released to an FBI agent without the client's knowledge of the disclosure.
- It is difficult to imagine that continuation of the treatment would be in the best interest of the patient, since the treating psychotherapist is, in fact, acting as an informant rather than as a therapist.
- This circumstance itself is a clear violation of the Hippocratic oath, which says "First, do no harm," and it probably runs counter to most professional codes of ethics and professional guidelines.
- According to some sources, as of 2005, the Department of Justice indicated that no requests for medical records had ever been made under the provision.
- At the heart of the conflict resulting from provisions in the Patriot Act is the tension between individual rights and communal or societal rights.
- Some experts have suggested resolving this kind of dilemma by terminating the relationship with the client. Others have proposed to include a disclosure regarding the Patriot Act in the Office Policies. While reasonable, these options do little to ease the clinical, ethical and legal complexities of the situation.
- Slightly good news: With the joint efforts of several professional associations raising serious concerns regarding privacy issues, a new legislation was signed into law on March 1, 2006. It includes:
- A requirements that FBI agents show prior written approval and reasonable, factual grounds to prove that the records sought under Section 215 are relevant to a terrorism investigation.
- A requirement that requested records are identified as actually pertinent to the activities of a suspected terrorist or person in contact with a suspected terrorist.
- Most importantly, the new legislation allows the recipient of a records request to consult with an attorney and file a challenge to a records request with an FISA court judge
- In summary and as always, be informed and consult, consult and consult.