QUESTION: Oftentimes, clinicians discuss unique or challenging cases among themselves to gain different perspectives on their client’s needs. While beneficial, these conversations may, at times, violate client confidentiality. As a future clinician, how would you ensure confidentiality of client information if engaging in these types of consultations? Please use the class material to inform your answers.
Information to answer the question: (please read and use to answer)
➢ Confidentiality is the ethical decision to not reveal what is learned in a professional relationship, unless otherwise authorized by the client, with written consent
➢ Cornerstone of effective counseling and psychotherapy. Confidentiality allows the client to freely share experiences without fear of needless disclosure to others.
➢ Ethics codes emphasize its importance and the situations in which counselors may have permission to communicate client disclosures to others.
➢ Ethics codes of Confidentiality:
❖ APA (Standard 4.01): Psychologists have a primary obligation and take reasonable precautions to protect confidential information obtained through or stored in any medium, recognizing that the extent and limits of confidentiality may be regulated by law or established by institutional rules or professional or scientific relationship.
❖ ACA (Section B.1.c.): Counselors do not share confidential information without client consent or without sound legal or ethical justification.
❖ AAMFT (Principle 2.2): Marriage and family therapists do not disclose client confidences except by written authorization or waiver, or where mandated or permitted by law.
➢ Confidentiality covers both the content of disclosures and contact with clients, so the identity of those who seek services is also kept secret from public knowledge. This ethical standard is rooted in the principles of respect for client autonomy and fidelity to promises made.
Ethical Confidentiality vs. Law
➢ Ethical exceptions to confidentiality:
❖ Client’s request for release of confidential information to him/herself or a qualified professional
❖ A court order for confidential information
❖ Ethics complaint or lawsuit against a counselor
❖ Other client litigation in which the client raises the issues of counseling treatment as part of the client’s civil suit against another party
❖ Limitations based on statutes, such as reporting child and elder abuse
❖ Dangerous clients who are at imminent risk for injury or death of themselves or others
❖ Clients with intent to commit criminal acts in the future (in some states)
❖ Clients with contagious life-threatening diseases, such as HIV disorders, whose behavior puts others at imminent risk of infection
❖ Clients considering hastening their deaths because of a terminal illness
➢ Privileged Communication: In a legal setting, confidentiality is referred to as “privilege.” In those states where privilege exists, it is held by the clients, securing their right to prevent confidential communications from being disclosed in the course of a legal proceeding (be it during a deposition, an administrative hearing or in a court of law). Specifically, when a client invokes privilege, the mental health professional is legally (and ethically) bound not to reveal any information learned from or about the client during the professional relationship. There are, however, certain circumstances in which privilege does not hold, independent of the client’s desire.
State of Florida Statues for LMFT, LMHC, LCSW & Psychologists on Confidentiality and Privileged Communication: Any communication between any person licensed under this chapter and her or his patient or client shall be confidential.
This privilege may be waived under the following conditions:
1. When the person licensed under this chapter is a party defendant to a civil, criminal, or disciplinary action arising from a complaint filed by the patient or client, in which case the waiver shall be limited to that action.
2. When the patient or client agrees to the waiver, in writing, or when more than one person in a family is receiving therapy, when each family member agrees to the waiver, in writing.
3. When there is a clear and immediate probability of physical harm to the patient or client, to other individuals, or to society and the person licensed under this chapter communicates the information only to the potential victim, appropriate family member, or law enforcement or other appropriate authorities.
❖ Examples :
✓ Reasonable suspicion of child or vulnerable adult abuse and/or neglect (Chapter 39 Florida Statutes)
✓ Reasonable suspicion that the client presents as a danger to self or others
✓ If client is court ordered to receive services, the court is the owner of the record and client confidentiality is waived
✓ If a client files a complaint with the regulating body against a mental health professional
Special Circumstances in Confidentiality
➢ Children and Adolescents: The issue with this population is the degree to which the child client can keep counseling disclosures secret from parents and guardians. The law tends to give minors few rights to privacy; the ethical guidelines tend to see confidentiality for minors increasing with age and maturity. Generally, the more mature the minor, the greater the measure of confidentiality that young person is given in counseling.
➢ Groups and Families: When working with groups and families, counselors need to be aware that they cannot guarantee clients the same degree of privacy as in individual counseling. When clients reveal personal information in front of third parties, the professional cannot prevent those third parties from breaching confidentiality. He or she should contract with all participants to honor confidentiality as a condition for inclusion in the group or family counseling, but clients need to understand that these contracts are voluntary, and professionals have little power to prevent other members from violating their promise if they decide to do so.
Managed Care and Confidentiality
➢ Managed care’s persistent and extensive demands for sensitive client information and the uncertain protection of that data once it is released is a major concern. Ethics demand that clinicians use the full range of their influence to keep disclosures to managed care to the lowest limit possible. It is important to fully inform clients about the implications of their use of managed care for the confidentiality of their records.
HIPAA (Health Insurance Portability and Accountability Act of 1996)
➢ HIPAA established national standards related to health care administration and eligibility.
➢ Two of the main features of the act were concerning the rules and regulations that determined:
1. Health care privacy standards
2. Health care eligibility and portability (transferability) of health care coverage
➢ HIPPA’s Privacy Rule (www.hhs.gov/healthprivacy): Designed to safeguard individuals Protected Health Information (PHI). PHI are any medical records (including psychological and psychotherapeutic records), and other individually identifiable health information, created or received by or on behalf of health plans and providers.
➢ HIPPA’s Privacy Rule regulates the circumstances under which health plans, providers, etc. may use and disclose PHI and requires them to have safeguards in place to protect PHI.
➢ Release of PHI requires client’s prior written authorization, EXCEPT:
1. Public health authority legally authorized to collect/receive information for the purpose of preventing or controlling disease, injury or disability
2. Government authority to report child abuse if the authority is legally authorized to receive reports
3. FDA (or authorized individuals) testing the quality/effectiveness of an FDAregulated product/activity.
4. Notifying a person that they are at risk of contracting/spreading a disease as authorized by law, to carry out public health intervention/investigation
5. Employer, when information to comply with OSHA
➢ Convenience and ease of electronic communications technology (fax, email, text messaging, social networking sites, etc.) for client communication makes these methods useful. Professionals must be fully aware of and understand the risks of these technologies and take precautions to protect client data