As Cathy Malchiodi pointed out through her comment on Facebook Fan Pages for Therapists #3, there should be no difference in the use of HIPPA and AATA’s code of ethics when applied to electronic communication versus traditional formats. So…lets take a look at some of the key principals for both, while keeping in mind that these are my interpretations and thoughts on the matter, and that I am not an expert:
This information was found on the Department of Health and Human Services Website:
Protected Health Information: The Privacy Rule protects all “individually identifiable health information” held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral. The Privacy Rule calls this information “protected health information (PHI).”
“Individually identifiable health information” is information, including demographic data, that relates to: the individual’s past, present or future physical or mental health or condition, the provision of health care to the individual, or the past, present, or future payment for the provision of health care to the individual, and that identifies the individual or for which there is a reasonable basis to believe it can be used to identify the individual. Individually identifiable health information includes many common identifiers (e.g., name, address, birth date, Social Security Number).
You cannot use any information that links an individual to their specific health information. If you post a video or pictures of a person in a way that makes it clear that they are a part of, for example, an autism group or receives psychotherapy from a practitioner who specializes in eating disorders, it allows others to put 2+2 together. The person in the picture has autism because he attends an autism group. The person in the video has an eating disorder because she receives treatment from an ED specialist.
However, also found on the Department of Health and Human Services Website:
A covered entity may not use or disclose protected health information, except either: (1) as the Privacy Rule permits or requires; or (2) as the individual who is the subject of the information (or the individual’s personal representative) authorizes in writing.
So…if you have written consent to posting that picture or video it’s okay…or is it?
Again, from the Department of Health and Human Services Website:
Minimum Necessary. A central aspect of the Privacy Rule is the principle of “minimum necessary” use and disclosure. A covered entity must make reasonable efforts to use, disclose, and request only the minimum amount of protected health information needed to accomplish the intended purpose of the use, disclosure, or request.
Is putting a picture or a video online where one can see and clearly identify the client the minimally necessary way of getting one’s point across? Not to me. The pictures could contain someone making artwork, but is shot in such a way that you can’t see their face. Efforts could be made to conceal the face of people in the video.
Let’s move onto AATA’s code of ethics.
Under the Preamble section, the AATA code of ethics states,
In this Ethics Document, the term reasonable means the prevailing professional judgment of art therapists engaged in similar activities in similar circumstances, given the knowledge the art therapist had or should have had at the time.
As a group, what we do and where our values lie helps to determine reasonable ethical judgment.
Under Client Artwork, 4.2-4.6,
Art therapists obtain written informed consent from the client or, where applicable, a legal guardian in order to keep client artwork, copies, slides, or photographs of artwork, for educational, research, or assessment purposes.
Art therapists do not make or permit any public use or reproduction of client art therapy sessions, including dialogue and artwork, without written consent of the client.
Art therapists obtain written informed consent from the client or, where applicable, a legal guardian before photographing clients’ artwork or video taping, audio recording, otherwise duplicating, or permitting third-party observation of art therapy sessions.
Art therapists use clinical materials in teaching, writing, and public presentations if written authorization has been previously obtained from the clients. Reasonable steps are taken to protect client identity and to disguise any part of the artwork or video tape that reveals client identity.
Art therapists obtain written, informed consent from the client before displaying client art in any public place.
Confidentiality, section 2.2,
Art therapists inform clients of the limitations of confidentiality.
When it comes to the internet, my opinion is that clients must be informed of where their information will be posted, what will be posted— will their face be shown? Will measures be taken to hide their identity? How secure is the website you’re posting the information on? Is the website intended for professional purposes, advertizing purposes, social networking purposes? How long the information will be available online? (Answer: all information posted on the internet is currently accessible forever).
Art Therapy by Electronic Means, sections 14.1-14.3,
Art therapy by electronic means is a new and evolving application of art therapy. As such, it presents opportunities for service, as well as ethical dilemmas not encountered in the past. Art therapists are advised to use caution as the ethical ramifications of providing art therapy services via the Internet and other electronic means emerge.
Art therapists who offer services or information via electronic transmission inform clients of the risks to privacy and the limits of confidentiality.
Art therapists who provide services through electronic means are governed by the AATA Ethical Principles for Art Therapists.
Art therapists are responsible for taking reasonable steps to ensure that any services through electronic means are in accordance with all applicable laws and regulations and are aware of the licensing requirements of the states in which their clients reside.
Under Responsibility to Clients, section 1.5
Art therapists recognize their influential position with respect to clients, and they do not exploit the trust and dependency of clients.
Although this quote was taken from the subsection discussing multiple relationships, this quote is applicable across all circumstances. When asking for consent, one cannot forget the position of authority they’re in, the tranferential relationship and the client’s (or their families, in the case of a minor) wish to please the therapist. This is where our judgment comes in. Are we exploiting the trust of clients when asking them to sign a consent form to post their faces and essentially their diagnosis on the largest social networking site to date? Not to mention that the post will also be easily accessible though Google. How about when we add to the mix the purpose of advertising or educating others about our profession?
I say yes to both questions. Others may say no. Some may not feel strongly one way or the other. Either way, I want to hear your opinions!!!
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