Letter to Gerald Barkel of CalaCare, 8/09/96

August 9, 1996

Gerald Barkel, Esq.
CalaCare HMO

Dear Mr. Barkel:

Speaking not as a matter of law, but as a matter of professional ethics, I cannot consider the confidences which a patient invests in a psychiatrist waived by some boilerplate in an employment contract. Any such waiver would have to be given by a patient with full knowledge of its intended use, freely, completely, and without coercion, for me to be able to honor it. If CalaCare wishes to contact the individual patients whom I am treating (and I have provided you with a list) and request their waiver of doctor/patient confidentiality now without threats of removing them from either their employment or their health care, then I would feel that I could give you the information you seek without violating my professional obligations. Absent that, I feel that I would be violating my obligations to my patients. Many have come in and sought my explicit promise that I would not disclose the contents of our sessions together, and I have given such promises. If the patients truly waived their expectation of doctor/patient confidentiality before, then you should have no difficulty in getting them to waive it again. But if, as I suspect, it was not a knowing, free and voluntary waiver, then you cannot ask me to respect it.

In my agreement with CalaCare, you point out a provision which obligates me to share with CalaCare "all relevant records and data that the company or its representatives should reasonably require." I have already complied with this request. It is clearly not reasonable for CalaCare to demand transcripts or notes of confidential patient sessions, just as it would not be reasonable to require a catholic priest to disclose the confessions of a penitent. Doing so would be a violation of the rules of privilege guaranteed by state law and of the ethical obligations of a psychiatrist which I believe in and have sworn to uphold.

Very truly yours,

Charles Balis, M.D.

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