5320 U4 D1 Confidentiality and Practice

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215

CHAPTER 9

Confidentiality

Maria: It’s okay. You can talk to Ms. Armstrong as long as you don’t tell her who I am. I don’t want anyone knowing what I told you. Besides, I thought talking to you was like talking to a priest in confession . . . you know, a major secret?

Maria understands the fundamental nature of the helping rela- tionship. It is one in which the individual’s right to privacy is respected. However, as with most things in this profession, the

issue of privacy or confidentiality is not simply yes or no. While confidentiality is a value held and practiced by all ethical prac-

titioners, the extent of such confidentiality can and will vary as a result of the context, client characteristics, and the nature of the information shared (see for example Chapter 13). The concept and ethical principal of confi- dentiality, along with those conditions that define the extent and limits of confidentiality, will serve as the focus for the current chapter.

OBJECTIVES ●

After reading this chapter you should be able to do the following:

• Describe what is meant by the terms confidentiality and privilege.

• Identify the conditions under which confidentiality and privilege should be breached.

Parsons, Richard D., and Karen L. Dickinson. Ethical Practice in the Human Services : From Knowing to Being, SAGE Publications, Incorporated, 2016. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/capella/detail.action?docID=5945468. Created from capella on 2023-02-02 11:57:35.

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• Discuss the conditions that need to exist for duty to warn to be implemented.

• Describe the special challenges facing practitioners working with both minors and those with HIV/AIDS in regard to confidentiality.

• Describe challenges of the technological era, including distance coun- seling, social media, texting, and corresponding by fax machine and e-mail.

● CONFIDENTIALITY: WHAT AND WHEN WARRANTED?

Privacy and the right to decide for oneself the time and circumstances under which to disclose personal beliefs, behaviors, and opinions is a cornerstone to our individual rights under the Constitution of the United States. It is this constitutional right to privacy that serves as the legal basis of privileged com- munication and the professional concept of con fidentiality (Kurpius, 1997). Confidentiality is a central factor underlying the public trust in mental health practitioners.

● CONFIDENTIALITY IS NOT PRIVILEGED

Confidentiality refers to the ethical principal that conveys that the information discussed within the context of the professional relationship will not be dis- closed without a client’s informed consent. Confidentiality is truly the client’s right (Sheperis, Henning, & Kocet, 2016) and is essential to the nature of a help- ing relationship. Research suggests that people are more apt to self-disclose in therapy when their privacy is protected and their confidentiality assured (Evans-Marsh, 2003). Clients who cannot trust professionals to treat informa- tion as confidential may withhold information that is important to the assess- ment and treatment. The helping relationship requires a client to place his or her trust in the helper, knowing that the information will remain confidential.

Confidentiality should not be equated with privileged communication. Privileged communication is a legal term describing situations in which the client is legally protected in a court of law from having personal, confiden- tial information disclosed by the therapist. Whereas therapists are directed under their code of ethics to maintain client privacy or confidentiality with privilege, that protection is ensured by the law, such that client information will be protected from disclosure even in legal proceedings (Corey, Corey, Corey, & Callahan, 2015).

Confidentiality is the broader concept that includes the expectation that material will not be divulged, whereas privileged communications carry

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a strong admonition that mate rial will not and may not be divulged even in court. While confidential material covers most of what transpires between the client and the practitioner, privilege belongs only to certain defined pro- tected relationships, such as physician and patient; lawyer and client; and psy chologist, social worker, and psychiatrist and their clients. The privilege brings with it the necessity to receive permission from the client, the holder of the privilege, prior to disclo sure (see Case Illustration 9.1).

Case Illustration 9.1

Release Only With Consent

Dr. Ramerez is a licensed psychiatrist. Dr. Ramerez is currently work- ing with Alfred, who has been diagnosed as having post-traumatic stress disorder (PTSD) as a result of a serious car accident in which 13 people were killed. Alfred was the only one of four people within his car that survived. The accident, which involved an oil truck and seven cars, was caused by an oil-tank truck driver falling asleep at the wheel. An insurance company representing one of the other victims in the crash in a lawsuit against the oil company subpoenaed Dr. Ramerez’s records on his diagnosis and treatment of Alfred.

Dr. Ramerez, respectfully declined to honor the subpoena, claiming the information to be privileged and stating that he would release this information only when his client would consent to its release. The lawyer representing the complainant in the lawsuit against the truck company explained that the only purpose of the request was to dem- onstrate the “potential” psychological impact that his client could experience well after her physical wounds had healed, and he wanted to use Alfred’s case as an illustration of PTSD. Dr. Ramerez explained the request to Alfred, who wanted to sign a consent form to release the information. Dr. Ramerez still felt that releasing the information was neither required nor desired. However, Dr. Ramerez understood that privilege belonged to the client and not to the therapist; since Alfred consented to release the information, he did.

For communication to be privileged, the standard that has been his- torically held is that the communication must satisfy specific criteria. The requirements of this privilege are (a) the communications must be confi- dential, (b) the therapist must be a licensed psychotherapist, and (c) the communications must occur in the course of diagnosis or treatment (Jaffee v. Redmond, 1996).

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With these criteria as backdrop, it would appear that the legal concept of privileged communication does not apply in group situations or even couple therapy, since the presence of the third person makes ensuring the origination of confidence difficult to enforce. Clearly, when working with groups, couples, or other situations in which the disclosures fail to meet criteria of privilege, practitioners have an ethical responsibility to maintain confidentiality while explaining the limitations to both confidentiality and privilege communications. Further questions regarding who can claim the privilege, what type of information is privileged, and what the limitations to privilege are can vary extensively state to state. Not all states, for example, grant privilege to all psychotherapists. It is federal law that provides and sup- ports privilege for medical doctors and psychologists (Remley and Herlihy, 2014). It is important for each practitioner to know the answers to these questions as defined within the state in which they practice. Exercise 9.1 is provided to assist in this process.

Exercise 9.1

A Question of Privilege?

Directions: As suggested in the text, the nature of privileged commu- nication can vary state by state. Contact either your state professional organization or the state board of professional affairs and gather infor- mation to answer the following questions:

• Who can claim privileged communication, or under what condi- tions can privilege be claimed?

• What types of communications are covered by privilege?

• Which professions and professionals have privilege?

• What are the limitations to privilege?

• What constitutes a waiver of privilege?

● CONFIDENTIALITY ACROSS THE PROFESSIONS

The provision of confidentiality is common throughout human service pro- fessions and is widely held as a therapeutic necessity. All professional organi- zations address the issue of confidentiality (see Table 9.1). While the specific wording varies, the principle of confidentiality articulated by the various pro- fessional organizations all reflect the fundamental values underlying ethical

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Table 9.1 Confidentiality

Professional Ethical Standards Statement on Confidentiality

American Psychological Association (2010)

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.

National Association of Social Workers (2008)

1.07. Privacy and confidentiality

c. Social workers should protect the confidentiality of all information obtained in the course of professional service, except for compelling professional reasons. The general expectation that social workers will keep information confidential does not apply when disclosure is necessary to prevent serious, foreseeable, and imminent harm to a client or other identifiable person. In all instances, social workers should disclose the least amount of confidential information necessary to achieve the desired purpose; only information that is directly relevant to the purpose for which the disclosure is made should be revealed.

American Counseling Association (2014)

B.1.b. Respecting client rights

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.

American Association for Marriage and Family Therapy (2015)

Section 2. Confidentiality

Marriage and family therapists have unique confidentiality concerns because the client in a therapeutic relationship may be more than one person. Therapists respect and guard the confidences of each individual client.

practice. With the primary purpose of confidentiality being the protection of client privacy and the placing of control over shared information in their hands, our adherence to confidentiality shows our genuine valuing of client autonomy, right of self-determination, and our commitment to beneficence.

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Neither confidentiality nor privilege is an absolute. Since both are in place in support of the protection of the client, not the helper, both can be waived by the client. Beyond client waiver, conditions exists that limit the degree to which communications can be maintained as confidential. Condi- tions such as those dictated by local laws and organizational regulations as well as situations in which a client or an identifiable person might be harmed should confidentiality be maintained necessitate the breaching of confiden- tiality and priv ilege. These conditions and other complicating factors are discussed in the next section.

● LIMITS AND SPECIAL CHALLENGES TO CONFIDENTIALITY

Since confidentiality is not an absolute, in addition to respecting the confi- dentiality of the client’s information, the ethical professional is directed by standards of practice to inform the client, when appropriate, of the limits of confidentiality. The Code of Ethics for Social Workers (2008), for example, states, “Social workers should inform clients, to the extent possible, about the disclosure of confidential information and the potential consequences, when feasible before the disclosure is made” (NASW, 2008, 1.07.d).

It is essential that the professional helper explicate the restrictions on confidentiality and assist the client to understand the unique conditions under which information may be shared in the course of providing service. The American Psychological Association’s (APA) code of ethics states that disclosure of the limits of confidentiality should occur at the outset of a professional relationship: “Unless it is not feasible or is contraindicated, the discussion of confidentiality occurs at the outset of the relationship and thereafter as new circumstances may warrant” (APA, 2010, Standard 4.02.b).

Beyond the client’s consent to waive privilege or disclose confidential material, the courts and the various professions have identified a number of conditions under which dis closure of this information may be required. These conditions include sharing for profes sional support when a client is a danger to self or others, in child abuse situations, and when court ordered.

Since breach of confidentiality may be mandated in these and other cir- cumstances, clients should be adequately informed about the limitations of confidentiality early within the relationship (see Chapter 8). Once informed, it becomes the client’s responsibility to share such personal information, knowing that confidence may not be maintained.

The ethical professional will maintain that breach of confidentiality is such a strong issue that the basis needs to be strong and justifiable. Further, because a breach of confi dentiality that is outside of these conditions may

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make the professional susceptible to legal and ethical sanctions, ranging from sanctioning by the professional organization to a mal practice suit, it is essential for the practitioner to be fully versed in the laws and ethical stan- dards existing for his or her profession and in his or her state of practice.

Professional Support

It is generally accepted that confidential material may be shared with colleagues and super visors for professional purposes. However, only that material essential to the consultation or supervision should be disclosed. Additionally, the conditions under which the informa tion is shared needs to reflect the respect for client privacy and the attempt to maintain max imum confidentiality. Case Illustration 9.2 demonstrates how in our day-to-day professional interactions we may become somewhat insensitive to the condi- tions under which we share confidential information.

Case Illustration 9.2

Faculty Room Chatter

Allison is a secondary-school counselor. She has been working with Ricky, a twelfth-grade student who has been speaking with Allison about his concern and anxiety over his sexual orientation. Ricky has started to accept the fact that he is gay and has been working with the school counselor to determine ways in which he can disclose this information to his par ents. Because of the anxiety he has been feeling and the amount of psychic energy he has been giving to this concern, Ricky’s academic performance has fallen off quite dramatically.

Ricky is very concerned that his two honors teachers may feel that he has simply stopped caring about their courses, and he would like them to write him letters of recom mendation. Thus he asks Allison if she will talk to the teachers about his personal strug gle, so that they will better understand his falling grades. Ricky gives permission to dis- close the information they have discussed, including his own coming out.

Allison sets up a meeting with Mr. Hansen and Ms. Wallace, the two honors teachers. She explains that she has been working with

(Continued )

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Client as Danger to Self or Others

While it may be obvious that the ethical practitioner concerned for the well-being of his or her client will break confidence if doing so can protect a client from self-inflicted harm, what may not be as obvious is that a break in confidence may be required as a way of tak ing reasonable care to protect oth- ers who may be in jeopardy of harm at the hands of a client. The professional obligation to warn a third party of a potential danger has been widely dis- cussed, starting with the now famous case of Tarasoff v. The Regents of the Uni versity of California (1976). In this case, the California Supreme Court found a duty to warn and to protect an identifiable and foreseeable victim. The case focused on Posenjit Poddar, the defendant charged with the 1969 killing of Tatiana Tarasoff. Tarasoff’s parents alleged that two months prior to the murder, Poddar confided his intention to kill Tatiana to a psychologist employed by the Cowell Memorial Hospital at the University of Califor nia at Berkeley. The psychologist had Poddar detained by the campus police, but Poddar was later released. No one warned Tarasoff of the possible peril to her life. Following the appeal, the court ruled that a duty to warn existed, stating,

When a therapist determines, or pursuant to the standards of his pro- fession should deter mine, that his [client] presents a serious danger of violence to another he incurs an obliga tion to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances. (Tarasoff, 1976)

Ricky and would like to share some information that may better help them understand his current academic difficulty. Both teachers express concern for Ricky and are glad to have the meeting. The three meet at a table in the faculty lounge, where Allison begins to share the information with both teachers with the intent of having them more fully understand Ricky’s change in performance. While Allison is fully aware that other teachers are in the room, she feels that if they speak in a conversational tone that no one else will either overhear or care to listen.

(Continued)

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The courts in this situation concluded the following:

Public policy favoring protection of the confidential character of [client], psychotherapist communication must yield to the extent to which disclosure is essential to avert dangers to others. The protective privilege ends where the public peril begins. (Tarasoff)

This case has served as the foundation for the concept of duty to warn, making men tal health professionals responsible for assessing the risk of danger that their clients may present to others and assessing the need to breach confidentiality and to warn. Legal exten sions of the Tarasoff case are presented later within this chapter. One special arena in which Tarasoff continues to be debated is in working with clients with HIV/AIDS. For example, the American Counseling Association (ACA) notes, “The general requirement that counselors keep information confidential does not apply when disclosure is required to protect clients or identified others from seri- ous and foreseeable harm or when legal requirements demand that confiden- tial information validity of an exception” (ACA, 2014, B.2.a). Further, “when clients disclose they have a disease commonly known to be communicable and life threatening, counselors may be justified in disclosing information to identifiable third parties” (ACA, 2014, B.2.C).

Persons With AIDS

Traditional approaches to client confidentiality have certainly been chal- lenged by the intro duction of the issue of AIDS and at-risk behaviors. Thanks to advances in medical care, HIV infection has become a chronic life-threat- ening condition, as opposed to the more rapidly fatal illness at the outset of the AIDS epidemic. However, it remains a very serious medical condition, and many state laws have been enacted to protect both the confidentiality of HIV-infected individuals and the safety of their sexual partners (Koocher & Keith-Spiegel, 2013). It is important for practitioners to remain current regarding medical data, treatments, transmission risks, interventions, and state laws regarding professional interactions with HIV patients.

Given the discrimination that individuals with HIV have faced, confiden- tiality is an extremely important issue. Individuals with HIV may be hesitant to seek needed treatment without the assurance of confidentiality (Koocher & Keith-Spiegel, 2013). However, individuals with HIV who engage in unsafe sexual practices or IV drug use and are unwilling to disclose that informa- tion to their partners or use safe practices place the practitioner within the

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ethical dilemma of if and when to break confidence in response to a duty to protect (Alghazo, Upton, & Cioe, 2011). The APA (2000), as outlined in a recommendation made by the HIV/AIDS Office for Psychology Education, supports the presumption that “confidentiality on behalf of the client shall be maintained except in extraordinary circumstances wherein individuals are unwilling or incapable of reducing the risk of infection to sexual or needle-sharing partners.”

While there have been attempts at apply the Tarasoff decision to HIV-related cases, Webber (1999) found that approximately half of the rulings provided support for maintaining confidentiality, whereas the other half provided support for limited disclosure.

It appears that the application of Tarasoff principles to HIV cases is variable at best. The extent to which Tarasoff is extended to situations involving HIV appears to depend on statutory and case law, which varies by jurisdiction. Given this variability in statutory and state law, it is essential for the ethical practitioner to become familiar with the laws applicable to his or her state and place of employment and thus to refer to legal precedent, state statutes, and professional codes of ethics when attempting to resolve the HIV disclosure dilemma (see Exercise 9.2).

Exercise 9.2

The Duty to Warn and Clients With AIDS

Directions: The application of Tarasoff to situations involving clients with AIDS has not been clarified within the courts.

Part 1: Contact a professional in practice within your local community. Pose the following questions to the professional and share your find- ings with your classmates/colleagues.

• Are you familiar with the Tarasoff case?

• If you had a client who expressed an intention to seriously harm an identifiable victim, what would you do? Has this ever hap- pened in your practice?

• What would you do if your client, who had AIDS, was actively engaged in unprotected sex with an identifiable partner? Has this ever happened in your practice?

Part 2: Contact your state professional organization and ask for the latest position on applying Tarasoff and the duty to warn in situations involving a client who has AIDS or is HIV positive.

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The issue of disclosure and the duty to warn when in relation to working with an HIV/AIDS client are not at all clear-cut. The professional’s response certainly is a decision that needs to reflect the current position of her or his profession and the directives of the local and federal courts. Exercise 9.3 is presented to give you a “practitioner’s view” of this difficult area of profes- sional decision-making.

Exercise 9.3

To Disclose or Not to Disclose?

Directions: Given the lack of clarity and directions regarding the issue of disclosure and duty to warn in cases of working with clients with HIV/AIDS, individual decisions and standards of colleagues are impor- tant reference points for the practitioner attempting to make an ethi cal decision. Contact at least two professionals currently working in your particular profes sional arena and pose to them the questions in the fol- lowing scenario. Record their responses and share your findings with a colleague or a classmate in an attempt to identify the standard of practice cur rently enacted within your locale.

Scenario: Assume you are working with a client who has admitted having AIDS and engaging in unprotected sex. Further assume that the client refused to give you consent to disclose this information.

• Would you warn the client’s spouse/partner?

• Would you warn the client’s current, live-in lover (assuming the client was not married)?

• Would you warn individuals whom your client identified as recent sexual partners?

• Would you warn individuals whom your client identified as hav- ing sex with over the past 5 years?

• Would you continue to work with the client, if he or she refused to begin to practice safe sex?

Mandated Reporting

The Child Abuse Prevention and Treatment Act (CAPTA) of 1974 defined child abuse and neglect and set the standards for state mandatory reporting laws. Amended in 2010 by the CAPTA Reauthorization Act, the existing

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definition of child abuse and neglect was retained to include at a minimum, “any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploi- tation; or an act or failure to act, which presents an imminent risk of serious harm.” Most states recognize four major types of maltreatment: neglect, physical abuse, psychological maltreatment, and sexual abuse. Although any of the forms of child maltreatment may be found separately, they can occur in combination (U.S. Department of Health and Human Services, Adminis- tration for Children and Families, Administration on Children, Youth and Families, Children’s Bureau, 2016). Under these conditions, disclosure is mandated. And even though our codes of ethics direct us to value clients’ autonomy and respect for their decision-making, laws governing mandated reporting override this value of autonomy, especially when applied to minors who are in danger of harm by others, to others, or to self (Sheperis, Henning, & Kocet, 2016). In fact, while professional standards direct the practitioner to protect the information dis closed within the helping pro- cess, breaking the law by not complying with a legal mandate to report is in itself unethical. The APA code of ethics (2010), for example, states that “psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose” (Standard 4.05.b). The tension and conflict between professional values and standards with legal requirements are not easy to resolve. But, as with any ethical dilemma, addressing the issue of mandated reporting can be approached by the employment of a solid decision-making model (see Chapter 7) and by consulting with a colleague about the situation. The use of consultation and ethical decision-making models for the purpose of mandat- ing reporting is recommended in several ethical codes (Henderson, 2013).

Records: Court Ordered

All professional codes of conduct provide for the maintenance and utilization of records as well as the maintenance of privacy of these records (see Chapter 12). Records should be maintained in a secure manner in order to protect the client’s confidentiality. Failure to maintain adequate records may be seen as a breach of the standard of care and thus serve as a basis for a malpractice suit (Anderson, 1996).

In the case of educational records, confidentiality is protected under fed- eral law, the Family Educational Rights and Privacy Act (FERPA) (1974). This law applies to any educational agency (public or private) receiving federal funds. It specifies that parents have access to student education records and that any release of educational records requires parental or student (if over 18)

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written consent. Without consent, only “directory information,” limited to name, address, telephone, date of birth, major, and date of attendance, is released. This is not an open-file policy. Some records, such as those maintained by a physician, psychiatrist, psychologist, or other recognized pro fessional or paraprofessional acting in his or her professional and parapro- fessional capac ity, are made, maintained, or used only in connection with the provision of treatment to the student. These are not available to anyone other than persons providing such treatment (20 U.S.C., sec. 1232[a][4][B]).

While records, including educational records, may be requested by vari- ous agencies or legal professionals, the only request to which the practitio- ner must respond without client consent is one issued in the form of a court order. Often records are requested by insurance companies or others in legal proceedings, often in the form of a subpoena. And while it is important for a mental health specialist to respond to a subpoena, the response can be in the form of a request. Rather than disclosing the information requested, a helper can request that the agency or individual seeking the information obtain a signed release of information from the client. However, if a practitioner is issued a duces tecum subpoena—a court order—then the practitioner must appear in court and bring the client’s records. Under this condition, a claim of privilege could be offered at the court and would require the court to either honor the privilege or demand a breach.

Another condition in which a breach of confidentiality and privilege may occur is when a client files a lawsuit or ethical grievance against the practitioner. Under these con ditions, the practitioner has a right to reveal relevant information about the client in his or her own defense. One final area in which release of information may invite a breach of confidentiality is in the case of providing information for insurance claims. Clients need to be informed that information released to insurance companies for the pur- pose of third-party payment may remain within their records. Typically, the information required includes the client’s name, services provided, dates of services, and a diagnosis. The importance of this fact is that once these data are conveyed to the insurance company, the practitioner will no longer have control over access to these records and thus cannot restrict to whom they are given or how the information is used.

Confidentiality and Working With Minors

Although children and adolescents increasingly have been granted rights to free choice, informed consent and privileged communication in counseling these issues remain complex in practice and often confusing to practitioners. Behnke & Warner (2002) noted that, while minors cannot

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consent to treatment, a parent or guardian consents on the minor’s behalf. However, there are some exceptions. These authors noted that certain states allow minors whom the law deems especially mature, such as those who are married or in the armed services, to consent to treatment, and sometimes minors may consent to treatment for substance abuse or sexually transmitted diseases. However, it is important to note that these exceptions are few and that generally one must be 18 years or older to be considered sufficiently mature to provide informed consent and with it the benefits of engaging in a confidential therapeutic relationship. Even with this proviso regarding the restrictions on confidentiality when working with minors, the ethical prac- titioner will do well in gaining informed “assent” from minors prior to the release of information.

The ACA Code of Ethics (2014) directs its members to inform clients (including minor clients) consistent “with their level of understanding and take culturally appropriate measures to safeguard client confidential- ity” (Principle B.5.c). Further, the ACA codes (2014) direct counselors “When counseling minor clients or adult clients who lack the capacity to give voluntary, informed consent, counselors protect the confidentiality of information received in the counseling relationship as specified by federal and state laws, written policies and applicable ethical standards (ACA, 2014, Principle B.5.a).

For those working with minors in a school setting, the minors’ rights to confidentiality are protected by the Family Educational Rights and Privacy Act (2015). While this act provides for access by parents to student records, it also exempts counselor notes, assuming that they are not considered part of the official school record. Because this final designation of “official school record” is open to the interpreta tion of each school district, counselors should be aware of their own districts’ policies regarding counselor notes and minor confidentiality.

All states have laws that permit minors to consent to treatment for some conditions, such as alcohol and drug abuse, venereal disease, pregnancy, and sexual health. While some states prohibit disclosure to parents, some leave this to the practitioner’s discretion, and others require disclosure under certain circumstances. The Center for Adolescent Health and the Law pub- lished a compendium of state laws that address confidentiality and consent (English & Kenney, 2003). The rationale is such that right to privacy and freedom to choose increases the likelihood that children and adolescents needing counseling will seek it. Because of the variation from state to state and the ever-shifting legal landscape, it is important for all practitioners to check with their state professional organizations to align with local practice regulations.

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Confidentiality in the Technological Era

In an age when people may use digital technology to communicate more than face-to-face interactions, practitioners need to be cognizant of the use of such items as e-mail, texting, and fax machines and possible breaches in confidentiality. Many professional codes of ethics have started to include use of technology in their codes. The ACA Code of Ethics has an entire section devoted to distance counseling, technology, and social media (2014). The section cites the client as having the “freedom to choose whether to use distance counseling, social media and/or technology within the counseling process” (ACA, 2014, H.2.a). In addition, issues are addressed in which the practitioner is aware of and discusses “limitations of maintaining confiden- tiality of electronic records and transmissions” with the client (ACA, 2014, H.2.b; H.2.c).

LEGAL DECISIONS: CONFIDENTIALITY AND PRIVILEGED COMMUNICATIONS

Professionals With Privilege

Psychotherapist-client privilege has been supported by a Supreme Court decision. The case involved the ability of a clinical social worker licensed in Illinois to assert privilege for communications between herself and her client in a lawsuit. The client, Mary Lu Redmon, was a police officer who killed Ricky Allen Sr. The officer responded to a reported fight and found Mr. Allen allegedly poised to stab another individual. The lawsuit brought against Officer Redmond, the City of Hoffman Estates, and its police depart- ment by Car rie Jaffee, the administrator of the Allen estate, alleged that excessive force had been used. In the course of the legal proceedings, the family petitioned to obtain notes made by the therapist in counseling ses- sions with Officer Redmond after the incident. Redmond refused to provide consent, and the therapist refused to respond by providing notes. The judge in that case informed the jury to assume that the notes were unfavorable, and the jury found for the plaintiff. On appeal in the U.S. Court of Appeals for the 7th Circuit, the jury verdict was thrown out and the case was remanded for a new trial with the court opinion stating the trial court had erred by not protecting the confidentiality of the records. Jaffee appealed this decision to the U.S. Supreme Court, which in a ruling in Jaffee v. Redmond (1996) upheld a strict standard of privileged communication. This decision upheld

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the ability of licensed psychotherapists to maintain the confidences of their clients in federal court cases.

While the Jaffee v. Redmond ruling directly applies only within the federal court system, it does extend psychotherapist privilege to another group of licensed professionals, clinical social workers. Many believe that opens the door to the extension of that privilege to other mental health pro- fessionals. Each state has laws that govern the conditions and the relation- ships under which a communication is considered privileged. As such, each practi tioner should check on the specific laws and court rulings defining the conditions of privi lege for practitioners within their state of employment.

Extending the Duty to Protect

While the release of educational records under the conditions set forth in the FERPA generally require the informed consent of the parent or the student, if over 18, the need to breach confidence appears to extend to situ- ations involving school counseling when the client appears to be in danger of harming himself or herself. In a court case, Eisel v. Board of Education of Montgomery County (1991), the Maryland Court of Appeals applied the duty to violate confidentiality to school counselors if a client is judged to be at risk for self-harm. In this case, a child threatened suicide in the pres- ence of schoolmates. These schoolmates told both the parents of the child and the school counselor. The counselor interviewed the child, who denied the threat. The counselor did not follow up or notify the parents or school adminis tration. The father sued the counselors and the school following the child’s suicide, alleg ing breach of duty to intervene to prevent the suicide, and the court found in favor of the plaintiff (Anderson, 1996).

Extending Tarasoff

There have been many court cases that have used the Tarasoff rul- ing to find a “duty to warn.” These court cases have attempted to further clarify the elements of foreseeable danger and identifiable victim. While the specifics of what defines foreseeable danger are still being debated, the courts have generally upheld that such foreseeable danger is present when there is a readily identifiable victim and the pre diction of danger is based on professional standards, such as the existence of death threats, possession of a weapon, and the individual’s having a clear plan of action. In Emerich v. Philadelphia Center for Human Development (1996), the Pennsylvania

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Supreme Court held that, based upon the special relationship between a mental health professional and his or her patient, when the patient has communicated to the professional a specific and immediate threat of seri- ous bodily injury against a specifically identified or readily identifiable third party, and the professional determines that his or her patient presents a seri- ous danger of violence to the third party, then that professional bears a duty to exercise reasonable care to protect by warning the third party against such a danger (Tepper & Knapp, 1999). Several subsequent court decisions have expanded and clarified the duty to warn and protect from dangerous clients. For example, victims who are not specifically identified by the client but who could be considered foreseeable, likely targets of client violence (such as individuals in close proximity to an identifiable victim) should be warned according the ruling of Hed lund v. Superior Court of Orange County (1983) and Jablonski Pahls v. United States (1983).

Other court cases have extended this duty to warn even when the victim is not clearly identifiable. In Lipari v. Sears, Roebuck & Co. (1980), the court ruled that the therapist failed in the duty to protect others by not detaining a potentially violent client who had pur chased a gun, even though no identifiable victim was named. And in a Vermont Supreme Court ruling in 1985 (Peck v. Counseling Services of Addison County), the Tarasoff duty to warn was extended to cases involving property—and not just personal- injury. In this case, the client was viewed as posing a serious risk of danger in that the client’s intent of arson represented a “lethal threat to human beings who may be in the vicinity of the con flagration” (Peck v. Counseling Services of Addison County, 1985).

Keeping client rights in the forefront while considering the safety of third parties who may potentially be harmed, counselors need to consider how they will warn or protect within the confines of sound clinical judg- ment (Buckner & Firestone, 2000). Making use of consultations and second opinions when threats of violence occur as well as implementing an increase of therapy sessions are strategies to be considered when there are threats of violence (Buckner & Firestone, 2000).

Protecting the Practitioner

Violations of confidentiality and privilege are determined by statutes, court decisions, and professional codes of ethics. These violations may be responded to with criminal action, civil action, and/or professional sanction- ing. However, because of the increasing court support for breach of confi- dentiality in the protection of others (identified or not), many confidentiality

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and privilege violations have legislation protecting mental health profession- als from civil liability if they issue warnings in attempts to protect others from potential harm. The protection rests in the fact that such reporting is often mandated by the state. Moving the breach of confidentiality from permissive to mandatory protects the therapist from both civil and criminal liability, if they act in good faith (National Conference of State Legislatures, 2015). Because laws vary across the states, it is essential for the ethical helper to understand the laws existing in his or her state of employment that govern such disclosures and such protection.

● BEYOND PROFESSIONAL STANDARDS: A PERSONAL MORAL RESPONSE

As noted, confidentiality is essential to the nature of a helping relationship. Clients need to feel safe within the helping relationship and trust that their disclosures will be held in con fidence. The ethical principle of confidenti- ality is founded on the fundamental respect for a client’s privacy and the helper’s concern for maintaining client welfare. This underlying respect for privacy and the valuing of the welfare of the client need to be more than simply the rationale for the ethical principle of confidentiality. Both need to be personal values.

The ethical professional, who values client privacy and welfare, will maintain that the breach of confidentiality is such a strong issue that the basis needs to be strong and justifiable. However, even with this as a per- sonal value, balancing client need, professional ethics, and legal mandate is not always easy or clear. Thus it is essential for each ethical practitioner to keep current on the profession’s stance and application of ethical principles and the laws governing practice and practice decisions. Specifically, each practitioner should commit to

• Knowing state laws mandating reporting or breaching of confidence

• Understanding thresholds and criteria for breach of confidence

• Providing disclosure to clients regarding the limitations to confidentiality

• Keeping thorough and detailed records

• Seeking consultation before disclosure

• Maintaining current knowledge of legal and ethical decisions guiding the disclosure of information

• Seeking ongoing education on the issue of confidentiality and its limits

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Finally, fear of litigation or concerns about adhering to legal mandates can serve as the motivation for committing to each of the above. However, the ethical professional, one who has assimilated the ethical principle as per- sonal value, will hold client well-being and welfare as the motive for such a commitment. A similar concern for the client’s welfare can serve as the guiding light for all practice decisions regarding disclosure.

CONCLUDING CASE ILLUSTRATION ●

We began the chapter with Maria, the client in our ongoing case, giving Ms. Wicks, the counselor, permission to talk with Ms. Armstrong about her case. As you read the continuation of the dialogue, review Ms. Wicks’s behavior as it reflects or fails to reflect the principles discussed within this chapter. Further, a number of brief questions are presented as a stimulus for the application of your knowledge regarding principles guiding confi- dentiality and its limitations.

Ms. Wicks: Thank you for the permission to speak with Ms. Armstrong. Maria, I certainly don’t want to break your confidence or reveal private conversations we may have had, but your welfare and your well-being are my primary concern, and I want to do all that I can do to keep you safe.

Maria: But you gotta promise me you ain’t gonna tell her who I am.

Ms. Wicks: Remember the first day we met? I know you were angry and really didn’t want to speak with me. But after a while you seemed to relax, and you started to share some of your story. Well, when we had that meeting, I told you that things we spoke about would be kept private. In fact, I said I wouldn’t share information without your permission.

Maria: Yeah, I remember that . . . that’s what I mean . . . you can’t tell no one. . . .

Ms. Wicks: I’m glad you remember that. Maybe you also remember me saying that, while I will respect your privacy, some things just

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can’t be private or confidential. I said if you are thinking about hurting yourself. . . .

Maria: I am not going to hurt myself . . . I know you said that, but it was no big deal, since I knew I wasn’t planning on hurting myself. . . .

Ms. Wicks: Again, I am glad you remember that and I’m happy that you aren’t think ing that you would like to hurt yourself. But, I also said that if you were thinking about hurting someone else that I may have to inform that person so that they could be protected and you would be safe, as well. Do you remember that?

Maria: Yeah . . . but, I’m not sure what this has to do with anything, now?

Ms. Wicks: Well, even though you are telling me that you have no intention of hurting yourself, I am very concerned that having unprotected sex with your boyfriend, who has AIDS, is endangering your life. And the truth is, I am not sure what I am supposed to do with this information. You know I want you to stop, ’cause I care about you. I’m just not sure if I have to tell someone else for legal reasons.

Maria: Legal reasons . . . it’s my life. . . .

Reflections

1. Does Ms. Wicks give evidence of providing Maria with the limits to confidentiality early within the sessions?

2. In addition to discussing with a colleague and the principal, what else would you suggest Ms. Wicks do?

3. What would you do? Do Maria’s actions constitute a basis for breach- ing confidence?

4. If Maria refuses to refrain from engaging in unprotected sex with her boyfriend, should Ms. Wicks continue to work with her? Would you?

● COOPERATIVE LEARNING EXERCISE

The purpose of this chapter was not only to introduce you to concepts of confidentiality and privileged communications but also to introduce you to the many elements complicating decisions to maintain or breach confidenti- ality. Translating theory to practice is not always an easy process.

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Directions: Contact two professionals operating in one of the following roles and ask them the questions that are listed below. Discuss your findings with a supervisor, col league, or classmate, looking for common approaches shared across professions:

• School counselor

• Licensed marriage and family therapist in private practice

• A mental health counselor

• A clinical social worker currently employed with a county agency

• A therapist who does custody evaluations in divorce cases

Questions:

1. When meeting with a new client, do you explain the concept of con- fidentiality? If so, do you also describe the limits to confidentiality or the conditions under which con fidentiality may be breached? How do you present these issues?

2. Have you ever had your records subpoenaed? How did you respond?

3. Have you ever had a situation in which you believe a duty to warn existed? If so, what did you do? If not, what do you think you would do?

4. If you work with minors, how do you address the issue of confiden- tiality with them? With their parents?

5. In your professional role, do you have privilege? If so, have you ever called on privilege as a basis for not disclosing client information?

SUMMARY ●

• Confidentiality is the general standard of professional conduct that obligates a professional not to discuss information about the client with anyone.

• Privileged communication is a legal term that describes the quality of certain specific types of relationships that prevent information acquired from such relationships from being disclosed in court or other legal proceedings.

• Questions about who can claim the privilege, what type of informa- tion is privileged, and the limitations to privileges can vary extensively from state to state.

• Most human service professionals believe that without compelling reasons to breach it, confidentiality must be protected. Compelling

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reasons for breaching confi dence include preventing serious, foresee- able, and imminent harm to a client or other identifiable person, and when laws or regulations require disclosure without a client’s consent.

• The Jaffee v. Redmond (1996) ruling extends psychotherapist privi- lege to another group of licensed professionals: clinical social work- ers. Many believe that this opens the door to the extension of that privilege to other mental health professionals.

• In Eisel v. Board of Education of Montgomery County (1991), the Maryland Court of Appeals applied the duty to violate confidentiality to school counselors if a client is judged to be at risk for self-harm.

• Several subsequent court decisions have expanded and clarified the duty to warn and protect from dangerous clients (see Hedlund v. Superior Court, 1983; Jablonski Pahls v. United States, 1983; Lipari v. Sears, Roebuck & Co., 1980).

• Peck v. Counseling Services of Addison County (1985) expanded on Tarasoff to include the duty to warn in cases involving threat to property and not just personal injury.

• The ethical principle of confidentiality is founded on the fundamental respect of a client’s privacy and the helper’s concern for maintaining client welfare. It is essential for each ethical practitioner to embrace a value of client welfare and keep current on the profession’s stance on and application of ethical principles and the laws governing practice and practice decisions.

● IMPORTANT TERMS

breach Family Educational Rights and Privacy Act (FERPA) Child Abuse Prevention and Treatment Act of 1974 foreseeable danger

client waiver identifiable victim

confidentiality imminent danger

constitutional privileged communications

court order protected relationships

duces tecum subpoena right to privacy

duty to warn Tarasoff

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ADDITIONAL RESOURCES ●

Kaplan, D., & Martz, E. (2014). New concepts in the ACA code of ethics: Distance counseling, technology and social media. Counseling Today, 57, 22–24.

U.S. Department of Health and Human Services. (2014). Mandated reporters of child abuse and neglect. Retrieved from https:www.childwelfare.gov/systemwide/ laws_policies/statues/manda.pdf

VandeCreek, L., & Knapp, S. (2001). Tarasoff and beyond: Legal and clinical con- siderations in the treatment of life-endangering patients. Sarasota, FL, Profes- sional Resource Press.

Wheeler, A. M. N., & Bertram, B. (2012). The counselor and the law: A guide to legal and ethical practice (6th ed.). Alexandria, VA: American Counseling Association.

Web-Based

Author. (n.d.). Risk management. ACA. Retrieved from http://www.counseling.org/ knowledge-center/ethics/risk-management

Koocher, G. P., & Keith-Spiegel, P. (2013). “What should I do?”—39 ethical dilemmas involving confidentiality. [Continuing Ed Courses on the Internet]. Retrieved from http://www.continuingedcourses.net/active/courses/course049.php

Ostrowski, J. (2014). HIPPA compliance: What you need to know about the new HIPAA-HITECH rules. Retreived from http://www.nbcc.org/assets/HIPPAA _Compliance.pdf

REFERENCES ●

Alghazo, R., Upton, T. D., & Cioe, N. (2011). Duty to warn versus duty to protect confidentiality: Ethical and legal considerations relative to individuals with AIDS/ HIV. Journal of Applied Rehabilitation Counseling, 42, 43–49.

American Association for Marriage and Family Therapy. (2015). Code of ethics. Retrieved from http://www.aamft.org/iMIS15/AAMFT/Content/Legal_Ethics/ Code_of_Ethics.aspx

American Counseling Association. (2014). Code of ethics. Alexandria, VA: Author.

American Psychological Association. (2000). Duty to warn. HIV/AIDS Office for Psychology Education (HOPE). Washington, DC: Author. Retrieved from http:// www.apa.org.proxy- wcupa.klnpa.org/pi/aids/hope.html

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American Psychological Association. (2010). Ethical principles of psychologists and code of conduct. Retrieved from: http://www.apa.org/ethics/code/principles .pdf

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