Confidentiality sits at the very heart of the intimate, emotional details that one reveals to their psychotherapist, and the trust that their deepest secrets are safe when confiding, which makes it imperative that a cocoon of strict legal and ethical codes surround the practice and privacy of this talking cure.
Reason why a psychotherapist was under fire recently for breaking down the traditional barrier of privacy when she opened up publicly on the mental health conditions of late actor Sushant Singh Rajput whose suicide on June 14 has been embroiled in theories. Given the “misinformation and conspiracy theories currently raging in the press and social media around Sushant Singh Rajput and Rhea Chakraborty,” she decided that it was her “duty” to break her silence.
“The therapist in question may have shared what she did with good intentions without realising the implications of it but such a move breaches the confidentiality clause of the Mental Healthcare Act of 2017 which lays down very clear rules about releasing information about a patient including the fact that a person was in therapy at all,” says psychiatrist Harish Shetty.
All mental health professionals-clinical psychologists, psychiatrists and psychotherapists or counsellors – fall under the jurisprudence of the Mental Healthcare Act of 2017 Act, which states: “A person with mental illness shall have the right to confidentiality in respect of his mental health, mental healthcare, treatment and physical healthcare.” It further specifies that, “All health professionals providing care or treatment to a person with mental illness shall have a duty to keep all such information confidential which has been obtained during care or treatment.” The clause also includes release of photographs to the media or any information stored in real or virtual space without consent of the person undergoing treatment.
However, a patient’s right to confidentiality is not absolute. Circumstances that threaten harm to themselves or another person permit one to make a disclosure to an appropriate authority, be it the police or a family member. An exception may be made if the court summons a psychologist to disclose confidential information without the consent of the individual. “While we cannot block the law by hiding something, we reserve the right to share only basic information, not therapy notes unless a police officer produces legal orders,” says psychiatrist Syeda Ruksheda, adding that the revamped mental healthcare legislation empowers a person under treatment to nominate someone to take a call on their behalf if their decision-making ability seems impaired.
“I get asked all the time by one of the spouses of a couple undergoing therapy or a parent but my foremost duty begins and ends with the individual under my care. To reveal anything would go against my credentials and integrity as a psychiatrist. My job is not to do social justice,” says Ruksheda. Psychologist Radhika Bapat agrees. “This isn’t about good, bad, activism, or heroism. Disclosing information about a patient is simply against the code, and the code is the law,” says Bapat, who makes it clear to her patients what the limits of confidentiality are. “One of the first things we do is get them to sign an informed consent form to minimise intrusion on privacy and our ethical code is made clear in the first two sessions.” But what happens when a therapist’s personal values are at odds with ethical guidelines? ‘Public interest’ can be an exception to breaking confidentiality according to the Act, however what constitutes the term is open to interpretation and whether confidentiality continues after death remains amorphous in the Indian jurisdiction.