Against HIPPster Regulation

Consider this post a rant-by-proxy: I owe the basic idea for it to my therapist wife, Alison, but the issue occurred to me independently (though not with such clarity) a few years ago, after I took a professional ethics course for my counseling degree.

Psychotherapy is an odd vocation that’s hard to categorize in a straightforward way. A therapist is in some respects like a teacher, in some respects like a friend, in some like a parent, in some like a religious minister, and in some like a physician. But at the end of the day, therapy is a sui generis activity with its own internal standards and internal goods. Therapy may resemble pedagogy, friendship, parenting, spiritual counseling, and medicine in some respects, but isn’t any of those things. Nonetheless, the powers-that-be have decided nowadays that psychotherapy is a form of medicine, or if that strains credulity, that it ought to be medicalized as much as possible.   

One good that therapy shares in common with medicine (actually, with a lot of things) is privacy: like the physician-patient relationship, the therapist-client relationship is, barring a few outlying exceptions, based on strict norms of confidentiality. A therapist is not only not supposed to divulge the details of her therapy with a client, but not supposed to divulge the fact that the client is in therapy.

That means, for instance, that if you’re doing therapy with a client who happens to be a minor, the child’s parent can’t call you and expect to hear “how things are going” (or anything about the content of the therapy) without the child’s consent. It doesn’t matter that the parent is paying the bills. It doesn’t matter who is paying the bills. After all, sometimes the bills of adult clients are paid by individuals other than the client, but that doesn’t change things: the relationship between therapist and client remains sacrosanct. I won’t bore you with the details of case law and professional codes, but the norms are stringent enough to resist encroachment in a wide variety of cases. Therapists tend to take confidentiality pretty seriously, and with good reason.

As quasi-medical practitioners, therapists nowadays are governed by laws originally intended to govern medical practitioners. One of these is HIPPA. Again, I won’t bore you with the legal details; what I’m giving you is HIPPA-Lite, intended for easy blog-based consumption.

One set of HIPPA provisions governs the permissible modes of communication between therapist and client. The two worries here are accidental disclosure of confidential information and hacking. In other words, it’s easy accidentally to forward email chains with confidential information in them, and it’s also the case that both email and text messages can in principle be hacked. If that happens, third parties come to know that the client is in therapy, and may come to know clinically relevant facts about the therapy itself. Both outcomes are considered professional and ethical disasters to be averted by almost any means, and at almost any cost.

In effect, HIPPA says that in order to protect the privacy of the therapist/client relationship, therapists and clients may only communicate with one another by legally-approved methods of communication that are considered immune (or more immune than average) to hacking than ordinary ones. It’s therefore illegal to communicate with a client by ordinary email or text, even if the client insists on doing so. And the ban extends not just to communications about clinically sensitive matters, but to communications about mundane things without clinical content or significance. Clients and therapists cannot have text- or email-based conversations with one another even to set or confirm dates and times, to cancel appointments, to deal with billing issues, or for any other reason. Either the conversation takes place on an approved electronic platform, or it takes place by phone, or it takes place in person. Otherwise, it doesn’t take place, at least not legally.

A hairsplitting person might notice the ad hoc quality of this listing: if a phone can be hacked, why regard voicemail as secure? If people can be nosy about email chains, why think they would refrain from putting their ear to the wall of a therapist’s office or door and eavesdropping? And in a world where the Pentagon gets hacked, why hold therapists liable when their Gmail accounts are hacked? But it’s beside the point to ask such questions. Law is about legality, not consistency. It’s no objection to the law to say that it’s ad hoc. It’s supposed to be. How else would lawyers get paid? Indeed, how else would pre-law advisors get paid?

You might wonder: what’s the big deal about “getting” an approved electronic platform? Why not stop bellyaching about them, and just demand that therapists do the right thing? Two things. One is cost, and the other is client adherence.

Cost: Email tends to be free, and texting is part of a phone package you’re already paying for. But the approved electronic platforms that HIPPA demands cost a lot of money. If you can’t afford paying that? You’re out of luck. And if it pushes you out of business? Then you’re really out of luck. And don’t expect much sympathy from anyone if you are pushed out of luck, except a bunch of rabidly right-wing deregulatory types. Ultimately, no one has much sympathy for providers who can’t “make the regulatory grade,” even if making it is just a matter of having the spare cash to buy it.

Client adherence: Suppose you decide to plunk down the money and adhere strictly to HIPPA? Well, good for you, but there’s no guarantee that your clients will do so. You’re then left in the position of either responding to every “illegal” client communication by phone (leaving a hackable voice mail for them in order to tell them not to send you hackable text messages), or else not responding, thereby provoking their ire and inviting the charge from them of professional delinquency (since non-responsiveness to a client is considered client abandonment, which is in turn considered a serious professional infraction). Dilemmas!

So far this whole thing may sound kind of stupid, but also easily resolvable. If HIPPA regulation is this onerous, but is motivated by the aim of protecting clients’ right to privacy, why not just have clients exercise their right to privacy by waiving out of the whole thing? I mean, if I have a right to privacy, it’s mine. That’s the whole point of its being a right. If I want to communicate with my therapist by email or text, and am willing to assume the risks of doing so, and the same is true of my therapist, can’t I just sign an explicit written waiver that allows us to do this?

Surely I can, right? After all, I sign all kinds of other waivers in a therapeutic context, and waive my rights away there. Consider some examples.

Most people pay for therapy through insurance. But if you do that, you waive your rights to privacy with your insurance company: they know all about your issues, because they’re paying for them. (This doesn’t contradict what I said earlier: in the earlier example, I was imagining X’s paying for Y’s therapy without Y’s waiving her privacy rights.)

Likewise, your therapist likely talks to other therapists about your issues, at least in a generic way. That’s a given, but you can also waive your rights so that one practitioner can talk to another (e.g., a psychologist to a psychiatrist, or one psychologist to another, etc.) in a more specific way. No one objects to that. If you don’t want your practitioner to do it, after all, you refrain from waiving your rights, and they can’t.

On top of this, therapists often give case history presentations in which they thinly disguise the identities of their clients and talk about them at conferences. This is part, though a subtle part, of the privacy deal you make when you sign all those forms at the beginning of therapy. Call me a narcissist, but I was pleased as punch to see this entry on the CV of a therapist of mine:

Separation of self and sexuality in a Pakistani male: Case presentation. The Annual Meeting for the Society of Sex Therapy and Research, Chicago, March, 2008.

If that’s how I make it into the psychological literature, so be it: I’ll take what I can get. But the point is, I can’t complain about violations of privacy here: I waived them. And hell, I’m not complaining.

While I’m on the subject of waivers, let’s try a different field: criminal procedure. I have a Fourth Amendment right against unreasonable search and seizure, a Fifth Amendment right against self-incrimination, and Sixth Amendment rights to counsel and to a jury trial. All of these rights are waiveable in contexts where the stakes and pressures are often higher–much higher–than they are in garden-variety therapy. No one would, could, or does dispute that fact–not even a Bill Kunstler or an Alan Dershowitz. It’s practically axiomatic.

Again, consider some examples.

Fourth Amendment waiver. Example 1:  A cop approaches me and wants to have a conversation. I waive my right not to be stopped and have the conversation. Example 2: A cop wants to search my stuff. I waive my right to privacy and let him search it.

Fifth Amendment waiver: Example: A cop arrests me and asks me to confess a crime. I waive my right against self-incrimination and spit it all out. That was easy.

Sixth Amendment waiver: Example 1: A cop arrests me, tells me that I can have an attorney present (or not), and describes the charges against me. I say, “I don’t need an attorney,” or even “I don’t need one right now,” and decide to represent myself pro se. Example 2: My case goes to trial; I waive my right to a jury trial and demand a bench trial. I’m found guilty. I guess it was a bad strategy.

The examples could be multiplied ad nauseam.

Part of what it means to have a right is having the right to do all these things–sometimes stupid, sometimes not, but always one’s own choice to make. Notice that waiver of a right can have good consequences, or disastrous ones. But the possibility of disaster is compatible with having a right to waive.

To be clear: I don’t mean to be suggesting that every single right without exception must always be waiveable everywhere, no matter what, regardless of the consequences. There may be exceptions to the general rule. I simply mean that there is a general rule: it’s (legitimately) taken for granted that you can waive lots of weighty rights in lots of weighty situations, where no one regards this as an argument for taking the right to waive away from you. Because taking the right to waive a right from you would be tantamount in many cases to taking the right away from you. And taking a right from someone who has a right violates the right–which is bad.

So why not apply the same approach to therapy? Well, because it’s illegal. My understanding is that you can’t waive out of a HIPPA right to privacy: the State has paternalistically decided, in your interests and the interests of Society At Large, that your right to privacy gives you no right to assume the risks of the kind of electronic communications you prefer to have. In short, your right to privacy entails that all your privacy are belong to us, where “us” is The State.

This understanding may be wrong (I haven’t waded through all of HIPPA to be absolutely sure of it), but it’s the legal advice one consistently gets from people who claim to be experts on HIPPA–or more precisely, from people who get substantial sums of money to offer their expertise on HIPPA.*

The predictable result is that most of the therapy profession is out of compliance with HIPPA, so that HIPPA’s provisions are governed more in the breach than in the observance. This is something to keep in mind the next time you encounter some ICE-intoxicated bigot who tells you that people should have their families broken up and be deported because they’re “breaking the law.” Yeah. Who isn’t? Maybe we should deport the therapists and their clients while we’re at it. Maybe we should deport the whole country while we’re at it, or lock them up, or whatever.

My rant-by-proxy is now over. But I think it prompts three questions.

First, can anyone think of a legitimate reason why a privacy right of the preceding kind (and in the preceding context) should be non-waivable?

Second, if provisions like this are an inevitable consequence of the medicalization of psychotherapy, isn’t that a strike against the medicalization of psychotherapy? And that’s not to mention all the strikes against it having to do with the fact that psychology isn’t medicine, therapists aren’t physicians, and mental health isn’t physical health.

Third, if these regulations are as messed up as I think they are, why are left-liberals so dogmatic and indiscriminate about the “need” for regulation?

Let me rephrase that a bit. Yes, left-liberals have recently been starting to accept the idea that regulations are not always a panacea; indeed, it’s now admitted on the center-left that some regulations can be unfair, excessively intrusive, counterproductive, and deeply immoral. And yes, we owe the general trend of de-regulation to liberals: de-regulation began in earnest with the Carter Administration, not (as people often think) during the so-called “Reagan Revolution.” So I don’t mean to paint with too broad a brush.

Still, as an anecdotal matter, I think it’s clear that if you mention “de-regulation” to the average liberal, he or she is apt to cringe as Dracula might to garlic or the Cross. If you then clarify and say that what you’re referring to is an end to the war on drugs, Liberal Dracula will evince a palpable sense of relief. The War on Drugs is Regulation Gone Racist. Racist regulations are bad. So yes, we can do away with them. (Except for opioids, since they’re the drug of choice for white people.)

If you say that you mean that we should ignore huge swatches of immigration law, and that immigrants should get sanctuary or amnesty or a path to citizenship, you get the same relieved reaction, as long as you clarify that you’re not in favor of Open Borders. Like drug law, Immigration Law is Regulation Gone Racist. So away with it!

Though it takes more effort and sweating to admit it, the same might be said of housing regulation. Housing Law is Regulation Gone Racist. That said, there’s a little more resistance to the prospect of just getting rid of it, because housing regulations literally affect us where we live. It’s one thing to be in favor of affordable housing. It’s another thing to be in favor of it next door.

Anyway, I guess we’ve settled that regulations are bad when they’re racist. But what about when they’re not racist? Or not sexist. Or not homophobic. What if they’re just stupid? Or problematically onerous? Or pointlessly intrusive? Or paternalistically boundary-crossing?

Here’s my experience: if you say, as a matter of principle, that regulation is by its nature onerous, intrusive, and insensitive to boundaries that deserve respect, and for that reason needs to be scrutinized and if found unjustified, thrown out–the fear, anxiety, and even loathing returns. And if you call your approach “de-regulation,” the fear, anxiety and so on intensifies. The idea of discarding unjustified regulations across the board even if they’re not racist causes a political version of generalized anxiety disorder.

It shouldn’t. I’m a therapist in training and a deregulatory liberal. It’s bad enough when HR or my Dean gets in my way. I have only myself to blame for that, as I’ve signed a contract imposing those regulators and their regulations on myself. But there are a lot of regulations out there that you couldn’t pay me to sign on to. I don’t see why I should apologize to anyone for wanting them out of my way. And I don’t see why my liberal compatriots think I should.

One of the problems with liberalism today is that it lacks an animating, integrating theme–unless you count opposition to Donald Trump, or half-hearted commitment to democratic socialism, as a theme. (And I don’t.) The theme used to be liberty, but the hard truth (?) is that you can’t have liberty without de-regulation. From a liberty-positive perspective, the questions to ask about de-regulation are how much, of what kind, and done how–not “should we”? To channel our last president: Yes, we can. Yes, we should.

Whether this particular provision of HIPPA is exactly the place to start the process of de-regulation, I don’t know. But if a regulation serves no discernible purpose; imposes heavy, pointless burdens; makes it difficult or impossible for rational people to exercise rational judgment; and wouldn’t be missed if it were abolished, I think you have a pretty good candidate for deregulation. I’m willing to go out on a limb and venture the thought that this part of HIPPA fits the description. Call me crazy, but I’d be willing to get rid of anything else out there that’s anything like it, too.

There’s no inconsistency involved in valorizing Nelson Mandela, Martin Luther King, Jr., and Legendre all at once. Of course, Legendre translated into modern idiom may not speak a language that the man himself could easily have understood. But that’s not a problem we have to face, as long as we can. Where Legendre said, “Laissez nous faire,” we’re apt to say, “Leave us the fuck alone.” They mean just about the same thing, and have just about the same outcome.

*The average online discussion is both inconclusive and focused on other topics. I took an entire graduate level course in professional ethics for counselors and never got clear on the issue. The textbook we used in the course didn’t squarely address or come clean on the topic of this post (pp. 218-220); it just insisted that counselors exercise caution in using electronic messages, default to using the phone when possible, and admitted that even devices with the most fanatical defensive measures “cannot guarantee confidentiality. Accidental interception, unauthorized email access, and email snooping are potential mishaps that can occur” (p. 218).

20 thoughts on “Against HIPPster Regulation

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