Nature & Limits of Confidentiality…

Confidential: Ethical & Legal Issues

“B.1.b. Respect for Privacy Counselors respect the privacy of prospective and current clients. Counselors request private information from clients only when it is beneficial to the counseling process…B.1.c. Respect for Confidentiality Counselors protect the confidential information of prospective and current clients. Counselors disclose information only with appropriate consent or with sound legal or ethical justification. B.1.d. Explanation of Limitations At initiation and throughout the counseling process, counselors inform clients of the limitations of confidentiality and seek to identify situations in which confidentiality must be breached.” (ACA, 2014 p. 6-7)

During the informed consent process, clients should be explained how privileged communication and documentation will be utilized, and what measures are taken to protect their privacy.  Corey, et al, (2011) note that confidential is both an essential right for clients and necessary for effective therapy (p. 210).  Additionally, “as a general rule, psychotherapists are prohibited from disclusing confidential communication to any third part unless mandated by law to do so” (Corey, et al, 2011, p. 211).  However, certain legal limitations exist regarding a therapist’s ability to protect a client’s information.  They must be warned of this in advance…

Defining Key Terms…

  1. Privileged Communication: “A legal concept that generally bars the disclsure of confidential communication in a legal proceeding…All states have enacted into law some form of psychtherapist-client privilege…when a client-therapist relationship is covered as privileged communication by statue, clinicians may not disclose confidential information” (Corey, et al, 2013).
    1. If the client waves this privilege, the therapist is obligted to “disclose information that is necessary and sufficient when the client requests it” (Corey, et al, 2011, p. 213).
    2. “Generally Speaking,…[this] does not apply to group counseling, couples counseling, family therapy, child and adolescent therapy.” (Corey, et al, 2011, p 214)
  2. “Privacy: as a matter of law refers to the constitutional right of individuals to be left alone and to control their personal information…Practitioners should exercise caution with regard to the privacy of their clients” (Corey, et al, 2011, p. 2015).

Steps to Protect Client Privacy…

  1. “PREPARATION: Before you explain the limits to confidentiality, it is important for you to understand these limtits yourself.  Review the relevant legal and ethical standards and contemplate/define your own moral principles.
  2. BE UP FRONT:  Tell the client the limits imposed to you  legally.  Obtain the client’s consent and have them sign relevant documentation indicating they understand these limts.
  3. OBTAIN INFORMED CONSENT BEFORE DISCLOSURE:  (should not require explanation.  However, sometimes for reasons listed below this is not always possible).
  4. RESPOND ETHICALLY TO LEGAL REQUESTS FOR DISCLOSURE:  if there is a pending legal demand for disclosure, notify the client and limit information so the extent that is legally allowed.
  5. AVOID ‘UNAVOIDABLE’ BREACHES:  monitor your recordkeeping, electronic communication, and note-taking practices to avoid unintentional breach…
  6. TALK ABOUT CONFIDENTIALITY:  Disuss with clients and fellow counselors… “(Corey, et al, 2011 p. 213)

Exceptions to Confidentiality

B.2.a. Serious and Foreseeable Harm and Legal Requirements The general requirement that counselors keep information confidential does not apply when disclosure is required to protect clients or identified others from serious and foreseeable harm or when legal requirements demand that confidential information must be revealed. Counselors consult with other professionals when in doubt as to the validity of an exception. Additional considerations apply when addressing end-of-life issues….B.2.c. Contagious, LifeThreatening Diseases When clients disclose that they have a disease commonly known to be both communicable and life threatening, counselors may be justified in disclosing information to identifiable third parties, if the parties are known to be at serious and foreseeable risk of contracting the disease. Prior to making a disclosure, counselors assess the intent of clients to inform the third parties about their disease or to engage in any behaviors that may be harmful to an identifiable third party. Counselors adhere to relevant state laws concerning disclosure about disease status. B.2.d. Court-Ordered Disclosure When ordered by a court to release confidential or privileged information without a client’s permission, counselors seek to obtain written, informed consent from the client or take steps to prohibit the disclosure or have it limited as narrowly as possible because of potential harm to the client or counseling relationship.” (ACA Code of Ethics, 2014, p. 7).

FIRSTLY: Explain to the client the Four Key Exceptions to Confidentiality….

Essentially it is the counselor’s responsibility to help the client understand that confidentiality is not absolute and there are circumsantes in which client’s must reveal confidential information.  These four key reasons are as follows:

  1. There may be occasions in which I therapist is “subpoena’ed” to testify in court.

  2. If the client expresses an intention to harm his/her self and has a plan in place, I am ethically required ot protect their well-being.

  3. If it is revealed that somebody is abusing the client, I need to inform police.

  4. If the client has a plan to harm somebody else, I must warn that person.

SECONDLY: Also explain that sharing info is essential in order to  provide “competent services” (Corey, et al, 2011, p. 221).

  1. In order to reimbursement disclosure of information may be required.
  2. Clerical assistance may occasional need to handle confidential information.
  3. Occasionally the counselor consults with her supervisor regarding this specific case.
  4. When other mental health professionals request information and client gives consent.
  5. It is also essential to communicate with other individuals involved in the treatment team.
  6. When the client requests information.
  7. Occasionally legally mandated exceptions arise: (i.e civil claim, or complaint filed.

Finally, a quick review of the “Duty to Warn/Protect”

As a result of a series of court rulings, mental health professionals have two seemingly contradictory concerns to contend with.  On the one hand, they must protect the privacy of their clients.  On the other hand, it is essential to protect the safety of the client and/or others if this information is revealed in therapy.  In other words, you have public safety on one hand, and personal privacy on the other.

DUTY TO WARN: (requires disclosure)

“Applies to those circumstances where case law or statue requires the mental health professional to make a reasonable effort to contact the identified victim of a client’s serious threats of harm, or to notify law enforcement of the threat” (Corey, et al, 2011, p. 231).

DUTY TO PROTECT: (provides ways to protect privacy)

“Applies to situations where the metnal health professional has a legal obligation to protect an identified third part who is being threatened; in these cases the professional generally has other options in addition to warning the person of harm”

Failing to warn can result in liability for civil damages

  1. Was there a failure to diagnose and predict dangerousness?
  2. Did the therapist fail to warn a victim of the client’s violent behavior?
  3. Was there a failure to commit?
  4. Was there a premature discharge?

“Client’s must do the following:  (1) identify those clients who are likely to do harm to 3rd parties, (2) protect third parties from those clients… (3) treat those clients who are dangerous.” (Corey, et al, 2011 p. 230).     

  1. Take steps to protect public and minimize liability (Corey, et al, 2011, p. 230).
  2. take careful histories and document thoroughly with those clients who are high-risk.
  3. Continually re-evaluate the potential for high risk behavior & modify TP PRN.
  4. Advise clients of their confidentiality limits.  Examine your informed consent document are terms of forfeiture of confidentiality clear as it pertains to the threat of violence to self and/or others.
  5. Regularly seek consultation (supervisor / attorney).  Know your code of ethics.
  6. Record Steps taken to protect others if necessary…
  7. In cases where client expresses desire to harm someone else, assess for suicidal ideation.
  8. Be familiar of treatment options and resources for managing high-risk clients.

Relevant Cases…

  1. Tarasoff Case – “In August 1969 PRosenjit Poddar was a voluntary outpatient at the student health service at the University of California, Berkeley and was in counseling…Poddar had confided to Moor his intention to kill an unnamed woman…Shortly after [the victim’s] return from Brazil, Poddar killed her…The California Supreme Court ruled in favor of the parents in 1976, holding that a failure to warn an intended victim was professional irresponsible….[the therapist has a} duty to exercise resonable care to protect the foreseeable victim of the serious danger of violence against him or her.” (Corey, et al, 2011, p. 232)…
  2. The Bradley Case: “A second case illustrates the duty not to negligently release a dangerous client…the patient, Wessner, had been voluntarily admitted to a facility for psychiatric care…was upset over his wife’s extramarital affair…He had repeatedly threatened to kill her…He was given an unrestricted weekend pass…met his wife and her lover in the home and shot and killed them…Georgia Supreme Court ruled that a physician had a duty to take reasonable care to prevent a potentially dangerous client from inflicting harm” (Coery, et al, 2011 p. 234).
  3. The Jablonski Case:  “The intended victim’s knowledge of a threat does not relieve therapists of the duty to protect…Melinda Jablonski filed suit for the worngful death of her mother…who was murdered by Philip Jablonski…[who] hjad agreed to a psychiatric examination at a hospital…The physicians determined that there was no emergency and thus no basis for involuntary commitment” (Corey, et al, 2011, p. 234).

HIPAA For Mental Health Professionals…

“The Health Insurance Portability and Accountability Act of 1966 (HIPAA) was passed by congress to promote standardization and efficiency in the health are industry and to give patients more rights and control over their health information…and are required to sign the appropriate forms authorizing the health care provider to provide information to other health care providers” (Corey, et al, 2011, p. 228).  The purpose of this rule is to provide a federally based uniformity to how health care facilities and workers are required to protet client’s confidentiality.  There are four main categories of requirements:

Privacy Requirements

“Practitioners take reasonable precautions in safeguarding patient information. Licensed health care providers are expected to ahve workign knowledge of and guard patients’ rights to privacy in disclosure of information, health care operation, limiting the disclosure of protected information, payment matters, protected health information, psychotherapy notes, and a patient’s medical record and treatment activities” (Corey, et al, 2011, p. 229).

Electronic Transactions

“HIPAA aims at creating one national form of communication or “language” so that health care proiders can communicate with one another electronically in this common language.” (Corey, et al, 2011, p. 229).

Security Requirements

“Minimum requirements are outlined in HIPAA that are designed to safeguard confidential information and prevent unauthorized access to health information of patients.” (Corey, et al, 2011, p. 229).

National Identifier Requirements

“It is essential that covered entities be able to communicate with one another efficiently.  Health care providers and health plans are required to have national identification numbers that identify them when they are conducting standard transactions” (Corey, et al, 2011, p. 229).

Confidentiality & Privacy in the School Setting.

Corey, et al, (2011) state that maintaining confidentiality in a school setting is especially problematic.  While “obliged to respect the privacy of minor clients and maintain confidentiality [this can] conflict with laws regarding parental rights.” (Corey, et al, 2011, p. 217)  In other words, the counselor must weight the parent’s rights to be a guiding force in their child’s lives against their client’s desire and right for privacy.  One way of handling this, is for the counselor to ask for permission of information release before and let them know about the limts to privacy.  “The basic standard of care for school counselors is clear, courts have uniformly held that school personnel have a duty to protect students from foresseable harm.” (Corey, et al, 2011, p. 236).

Considerations for Suicidal Clients

The guidelines and rules discussed here also apply to suicidal clients.  The issue here is knowing when to take the client’s serious.  “Therapists have a legal duty to make assessments from an informed position and carry out their professional obligations in a manner comparable to what other reasonable professionals would do” (Corey, et al 2011, p. 241).

Protecting Children, Elderly & Dependent Adults…

“Privileged communication doesn’t apply in case of child abuse and neglect, nor does it apply in cases of elder and dependent adult abuse…Such matters constitute a situation of reportable abuse…The professional is required to report the situation under penality of fines and imprisonment.  IF adults reveal in a therapy session that they are abusing or have abused their children, the matter must be reported….the goal of reporting is to protect a child or older person who is being abused….National Child Abuse PRevention Treatment Act (PL 93-247).  

References

ACA Code of Ethics as a resource for an academic work: American Counseling Association (2014). ACA Code of Ethics. Alexandria, VA: Author.
American Psychological Association. (2017). Ethical principles of psychologists and code of conduct (2002, Amended June 1, 2010 and January 1, 2017). Retrieved from http://www.apa.org/ethics/code/index.aspx
Corey, G, Corey M.S. & Callanan P. (2011). Issues and ethics in the helping professions. 8th Ed.  Belmont CA: Brooks/Cole.

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