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Confidentiality and Priyiieged Communications: Legai Dilemma for

Family Therapists

CONFIDENTIALITY is the founda-tion of a therapeutic relationship. Without this commitment of trust, a therapeutic relationship cannot develop fully. Often the terms "privileged com- munication" and "confidentiality" cû e used interchangeably. However, a distinct difference exists between these concepts. Privileged communication is a "legal term dealing with the admission of evidence into court" (Knapp & VandeCreek, 1987, p. vii), whereas con- fidentiality refers to the "laws or rules of professional ethics that regulate the disclosure of information obtained in psychotherapy" (Knapp & VandeCreek, 1987, p. 1).

Confidentiality and privileged com- munication guidelines are premised on a one-to-one exchange of information. These guidelines have served social workers well when practice has been limited to individual tiierapy. However, current clinical social work practice generally includes individual, group, marital-couple, and family therapy. In the area of family therapy in particular, confusing and unresolved issues seem to arise, and the guidelines established for individual therapy provide little assistance in resolving these issues.

In individual therapy, the therapist is concerned with only one client. Con- fidentiality Eind privileged communica- tions are simpler issues when only one client is involved in treatment. The problems in therapy begin to multiply as the number of clients seen together in- creases. When a family is seen in therapy, the client is the family, not just a member of the family.

Some critical questions plague fami- ly therapists. How should the family therapist respond to a request by one family member to testify against another family member when the therapist has been seeing both the plain- tiff and defendant in family therapy?

Sallie A. Watkins

The legal guidelines available for social workers who treat families are inves- tigated. Definitions are provided for confidentiality and privileged com- munications, and ethical guidelines and case law in this area are examined. Common waivers of privileged com- munications and nonpHvileged situa- tions in which confidentiality may be accorded by a court are listed. Theneed for social workers to develop an understanding of and approach to con- fidentiality is addressed.

Can one member of the famfly ĝ ve per- mission for information obtained in family therapy to be released to others outside the family without the permis- sion of all the family members?

Family therapists generally agree that confidentiality of the sessions is impor- tant and the contents of the sessions should not be used in any legal action against family members. Nonetheless, the issue of confidentiality and privi- leged communication can be com- plicated by the fact that, generally, statutes and legal and professional guidelines address only individual therapy. In some cases, the presence of a third party may mean a wdver of the privilege.

Confidentiality Two types of confidentiality exist: (1)

absolute and (2) relative. Absolute con- fidentiality refers to the "ethical position which demands that the therapist not break confidentiality under any cir- cumstances" Oagim, Wittman, & Noll, 1978, p. 459). Absolute confidentiality means that the information shared with

the therapist would never be shared with anyone else, put in any written form such as a case record, fed into a computer, or discussed orally. Relative confidentiality, the most common type, refers to the ethical position that man- dates that the therapist may break con- fidentiality under certain circumstances. This position means that the informa- tion could be shared in both Tvritten and oral form within an agency and with others outside an agency under special conditions.

Social workers who seek guidance in the area of confidentiality should consult the following sources: the Code of Ethics of the National Association of Social Workers (NASW) (1980); statutory en- actments (state licensing and regulatory statutes as well as the Federal Rules of Evidence); common law principles (established in case law); judicial discre- tion (judges' individual ioterpretation of Wigmore's [1961] four elements of privilege); and their employing agencies' pohcies, regulations, and procedural rules. The NASW Code of Ethics specifically addresses confidentiahty and privacy applicable only to individual relationships:

The social worker should respect the privacy of clients and hold in confidence al! information obtained in the course of professional services.

1. The social workers should share with othere confidences revealed by clients, without their consent, only for compelling professional reasons.

2. The social worker should inform clients fully about the limits of confiden- tiality in a given situation, the purpose for which information is obtained, and how it may be used.

3. The social worker should afford clients reasonable access to any official social work records concerning them.

4. When providing clients with access to records, the social worker should take due

care to protect the confidences of others contained in those records.

5. The social worker should obtain in- formed consent of ciients before taping, recording, or pemutdng third party obser- vation of their activities, (pp. 5-6)

Privileged Communication Privileged communication, compared

with confidentiality, is narrower in scope, "referring only to the legal right that protects clients, under certain circum- stances, from having their communica- tions revealed in court without their permission" (Knapp & VandeCreek, 1987, p. 1). Clinicians should remember that the privilege belongs to the client unless there is a waiver of the privilege. Three sources determine privileged commutiicationsr (1) statutory enact- ments, (2) common law principles, and (3) judicial discretion.

Conditions Necessary for Establishing Privilege

Four fundamental conditions are necessary for the establishment of a privi- lege against disclosure. These condi- tions, which sdll are used today, were set forth in the 1920s by John Henry Wigmore (1961). The four conditions are as follows:

1. Communications must originate in the confidence that they will not be disclosed;

2. The element of confidentiality must be essential to the maintenance of the relation- ship between the parties;

3. The relation is one which in the opinion of the community ought to be fostered;

4. The injury that would inure to the rela- tionship as a result of disclosure must be greater than the benefit gained in regard to the correct disposal of litigation (Wigmore, 1961, p. 52).

These conditions represent the fovmda- tion for the determination of privileged communication by the judiciary. Every case that raises the issue of privileged communication is evaluated in terms of having met these four conditions.

Claiming the Privilege After a privilege has been established,

it cannot be claimed unless three addi- tional rules have been met:

Table 1. Conunon Waivers of Privileged Communication

The client waives privilege. Client introduces privileged material into litigation. A communication does not meet Wigmore's four criteria. The soda! worker is called to testify in a criminal case. A client sues his counselor. A client commits or threatens a criminal act. A patient threatens suidde. A client threatens to harm his therapist. PhysidaiK miist report certain medical conditions and treatments. A minor is involved in criminal activity. Child abuse or neglect is suspected. A client is using certain types of drugs. A client's condition makes his employment hazardous others. The court orders a professional examination. Involuntary hospitalization is needed for someone's protection. The client dies. A treating professional needs to collect fees for services rendered. Information is learned outside the professional treatment relationship. Information is shared in the presence of a third person. The federal government needs certain information. The right of privileged communication is not transferable from one state to another. Privilege does not usually apply to the fact that a communication was made. Emergency action is needed to save a client's life. Legal action is needed for protection of a minor. A client engages in treasonous activities. A pre-sentence investigation report is prepared. The treating professional is employed in an agency/institution. A social worker is employed in a military setting. Claims are filed for life and acddent insurance benefits.

S O U R C E : Wilson, S. J. (1978). Confidentiality in social work: Issues and principles. New York: Free Press, pp. 111-133.

(1) the relationship protected by the statute has been established, (2) the right to claim the privilege has not been waived, and (3) the person who claims the privilege is the individual entitled to it under the statute. ("The Social Worker-Client," 1965, pp. 369-370)

Of the 45 states and territories with so- cial work licensing and regulatory statutes, 36 specifically recognize social worker-client privileged communication (Whiting, 1988).

Once the right to claim the privilege has been waived, the privilege cannot be claimed again later. The most common waiver involves the client's giving con- sent for information to be released to a third party. Wilson (1978), in her work on confidentiality and privileged com- munications, listed 29 common waivers of privileged communications (Table 1).

The person who claims the privilege must be entitled to it. An entided person could be, of course, "the person making the communication" ("Privileged Com- munication," 1971, p. 458), based on the premise that a therapeutic relationship

has been established between therapist and client. The courts have maintained that paying for therapy does not in itself entitle a person to claim the privilege. For example, a husband carmot claim the privilege just because he paid for his wife's therapy (Bieluch v. Bieluch, 1983).

Also entided to claim the privilege would be "the person hearing the com- munication, unless he is instructed otherwise by the person who made the communication or his personal repre- sentative or guardian or unless there is neither a person who made the communi- cation nor his personal representative in existence" ("Privileged Communica- tion," 1971, p. 458). In some cir- cumstances, the clinician may claim the privilege on behalf of the client.

Other types of entitled persons would be "a guardian or conservator of the per- son who made the communication" and "the personal representative of the per- son who made the communication if that person is dead" ("Privileged Com- munication," 1971, p. 458). If the privilege is not claimed by a personal

134 Social Work / March 1989

representative after the client's death, then the privilege is waived. Finally, "third parties present when the com- munication was made with the knowl- edge of the person making the commvmi- cation and whose p r e s e n c e was reasonably believed to be necessary either to the person hearing the com- munication or to the person making the communication" ("Privileged Com- munication," 1971, p. 458) are entitled to claim the privilege.

Common Law Principles Case law that addresses privileged

communications in family therapy con- tains the traditional "third person rule." The stiuidard held in most cases is that once the communication has been breached the privileged status of the in- formation is lost. It has heea held in some cases that if a third person is present dur- ing the disclosure of information then that information is not privileged.

T o illustrate the uncertainty and vagueness of the case law in this area, one only has to examine two New York Cases that involve similar issues. For ex- ample, in the case of Humphrey v. Norden (1974) the New York City Family Court held that admission of paternity made to the social worker by the reputed father was not a privileged communication. Ac- cording to the court, the claim of privilege alleged by the reputed father failed to meet the forth condition of privilege cited by Wigmore (1961). The court went on to state that

the disclosure of evidence relevant to a cor- rect determination of paternity is of far greater importance than any injury that might inure to the relationship betsveen the social worker and the client (Humphrey v. Norden, 1974, p. 734)

Citing Hurlburt v. Hurlburt (1891), the court further stated that it has long been held that

if two or more persons consult an attorney in regard to a matter of common interest to them, nothing that is said by the parties or the attorney is deemed coiiidentia], in an action arising subsequently thereto be- tween the parties or their personal representatives. (Humphrey v. Norden, 1974, p. 736)

The court concluded by stating that

where two or more pereons consult a social worker in regard to a matter of common in- terest to them, nothing that is said by the parties or the social worker is deemed con- fidential in an action arising subsequently thereto between the parties. (Humphrey v. Norden, 1974. p. 736)

Most statutes that have established privileged communication base the privilege on the attorney-client relation- ship, which is the traditional single client-professional relationship.

Another similar case decided in the same state a year later reached a dif- ferent conclusion on privileged com- munications. In Yaron v. Yaron (1975) the Supreme Court of New York Coun- ty upheld the necessity of maintaining privileged communications. In Yaron v. Yaron, the court held that a family agen- cy's records and reports in marital counseling were privileged. The court went on to state that such records and reports were not admissible in marriage dissolution proceedings unless both spouses waived the privilege. The court further ruled that the

privilege granted by the legislature was not meant to be a myth. It was meant to cure the evil which had resulted from social workers either voluntarily or by court direc- tion being forced to disclose communica- tions given to them of the most intimate nature by people desperately in need of help. (Yaron v. Yaron, 1975, p. 524)

The court clearly recognized the impor- tance of the privileged communication issue:

People were, and are, told that in order to be helped they must reveal the innermost parts of their emotional being—their most dreadful fantasia, their fears, their angers and desires. How can such persons have faith in this process if they become aware that some court can subsequently find that the confidence in which such feelings were revealed can be betrayed? (Yanm v. Yaron, 1975, pp. 524-525)

The court's position was that any com- munication that was privileged when made remained privileged forever unless waived by the client.

Review of the state and federal case law in the area of privileged communica- tions reveals that privilege continues to be a confusing issue when two or more

clients are seen simultaneously in therapy. A need for clarification in this area of the law seems imperative.

Judicial Discretion In the case of Yaron v. Yaron (1975)

the decision of the court was based on judicial discretion, because the judge's opinion did not follow the established legal precedents of the "third party rule." However, judicial discretion can be used in other ways to decide if con- fidentiality will be accorded by a court.

Wilson lists 11 nonpdvileged situa- tions in which confidentiality may be recognized by a court (Table 2). These situations may arise in areas in which no statutes regulate the social worker- client privilege. The social worker, through the defendant's attorney, may wish to petition the court to rule on the evidence requested by the plaintiff's at- torney to determine if confidentiality may be accorded.

If the social worker-client privilege is not recognized by statute or by the court, then the social worker must decide whether to produce or withhold the evidence that is requested. If the social worker decides to withhold the evidence, then the social worker must be willing to face the consequences of a civil contempt citation. Again, -m&i a contempt citation judicial discretion is involved. The judge has the authority to place the social worker f ovmd in contempt in jail until the worker is willing to produce the evidence requested by the court.

Ramifications for Social Workers

The questions of confidentiality that confront family therapists have no clear and easy answers. The legal dilemma is everpresent Consequently, all practicing clinicians have an obligation to maintciin their practice under the guidance of pro- fessional ethics and within emerging judicial parameters.

Social workers should know about their own state's licensing and regulatory statutes that address the privileged com- munications issue. Social workers also should participate in the development and revision of agency policies on con- fidentiality. Based on the Code of Ethics

Watkins / Confidentiality and Privileged Communications 135

Table 2. Nonprivileged Situations in Which Confidentiality May Be Accorded

by a Court

A commumcation meets Wigmore's four criteria.

The subpoenaed uif onmation is not relevant to litigation.

Data soxight by the court can be obtained from some other source.

Specialized communications may have been declared privileged.

Society traditionally expects the communication to be privileged.

A witness is mentally incompetent. The client makes the disclosure involuntarily. An individual is acting as an agent of the profes-

sional covered by privileged communication. The information is hearsay. An attorney files documents in a malpractice

lawsuit. A client has signed a blanket "consent for

release of information" form.

SOURCE: Wilson, S. J. (1978). Confidentiality in social leork: Issues and principles. Nev? York: Free Press, pp. 137-142.

(NASW, 1980), social workers should warn clients concerning the limitations of confidentiality in their treatment. Social workers, along with all other help- ing professionals, should support lobby- ing for privileged communication statutes that include individual, marital- couple, and family therapy.

Most important is that social workers form their own approach to confidentiali- ty based on the Oide of Ethics, statutory enactments, common law principles, employing agency policies, regulations, and procedural rules. A standard ap- proach for the social work profession is essential for trusting chent relationships and for general enhancement of the credibility of the profession.

References

Bieluch v. Bieluch, 462 A.2d 1060 (1983). Humphrey v. Norden, 359 N.Y.S.2d 733

(1974). Hurlburt v. Hurlburt, 128 N.Y. 420,28 N.E.

651. Jagim, R. D., Wittman, W. D., & NoU, J. 0.

(1978). Mental health professionals' at- titudes toward confidentiality, privilege, and third-party disclosure. Professional Psychology, 9, 458-466.

Knapp. S., & VandeCreek, L. (1987>. Privi- kged amimunications in the menial health

professions. New York: Van Nostrand Reinhold.

National Association of Social Workers. (1980). Code of Ethics. Silver Spring, MD: Author.

Privileged communication: A case by case ap- proach [Note], 23 Maine L. Rev. 443 (1971).

The social worker-client relationship and privileged communications [Note], 1965 Wash.U.L.Q. 362.

Whiting, L. (1988). State comparison of taws regulating social work. Silver Spring, MD: National Association of Social Workers.

Wigmore, J. H. (1961). Evidence in trials at common law (Vol. 8) (rev. ed. by J. T. McNaughton). Boston: Little Brown.

Wilson, S. J. (1978). Confidentiality in social work: Issues and principles. New York: Free Press.

Yaron v. Yaron, 372 N.Y.S.2d 518 (1975).

SallieA. Watkins,DSW, is Assistant Bv- fessor, Department of Social Work, School of Social and Behavioral Sciences, Univer- sity of Alabama, 339 Ullman Building, Birmingham, AL 35294.

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