Chapter 5: confidentiality and privileged communication
Privileged communication is an interaction between 2 parties in which the law recognizes a
private, protected relationship
Intro
oConfidentiality is one of the most fundamental of all professional obligations in
counseling.
oCounselors have both an ethical and a legal (except in Texas) duty to take action
to prevent harm if they believe their client is intentionally harming someone else
oThe ethical duty exists because the obligation to prevent harm outweighs the
rights of a client to privacy.
oPrivacy is the broadest of the three concepts and refers to the right of persons to
decide what information about themselves will be shared with or withheld from
others.
oConfidentiality is primarily an ethical concept that refers to the counselor’s
obligation to respect the client’s privacy and the promise to clients that the
information they reveal during counseling will be protected from disclosure
without their consent.
oPrivileged communication is the narrowest of the three terms and is a legal
concept.
For a communication to be privileged, a statute must have been enacted
that grants privilege to a category of professionals and to those whom
they serve
Confidentiality
oOrigins of confidentiality
Carl Rogers’s humanistic views, other theorists who emphasized the
natural developmental life stages that all individuals pass through, and
the career guidance movement all helped to shift thinking away from
counseling as a service only for the mentally ill or the sexually repressed.
oThe rationale for confidentiality
Clients need to know that they can trust their counselors to respect their
privacy, and the counselor’s confidentiality pledge is the cornerstone on
which this trust is built (ACA, 2014, §A: Introduction).
Bok (1983) has suggested that confidentiality is based on four premises
The first two premises relate to respect for client rights in
counseling.
The principle of respect for autonomy (which is described in
Chapter 1) means that counselors honor their clients’ ability to be
self-determining and to make their own choices.
The second premise is respect for human relationships and for the
secrets that certain types of relationships entail.
The third premise has to do with the counselor’s obligation that
arises from autonomy and respect.
Bok contends that an additional duty is created by a pledge of
silence, which is the offer of confidentiality extended by the
counselor to the client.
The final basis for confidentiality is its utility.
oThe rationale here is that confidentiality in counseling
relationships is useful to society, because clients would be
reluctant to seek help without an assurance of privacy
Respect for autonomy is only one of the moral principles on which
confidentiality rests. Another is fidelity, which means being faithful and
keeping promises
oCounselor practices and confidentiality
Various studies have shown that only 1% to 5% of complaints made to the
ethics committees and state licensing boards of counselors involve
violations of confidentiality
Your conversations must not reveal any information that could
conceivably allow listeners to ascertain the identity of a client.
Case notes, test protocols and interpretations, audiotapes, and
videotapes of work with clients must not be left in places where they
might be seen by anyone other than authorized supervisors or professors
A question that surfaces quite often for beginning counselors is whether
they have an obligation to maintain the confidentiality of private
information that is disclosed to them when they are not in the role of
counselor—for example, when a neighbor tells a counselor about an
event that occurred a few houses away.
The answer is that confidentiality and privileged communication
exist only when counselors are functioning in the role of
professional counselor
Ethical standards and confidentiality
oSection B: Confidentiality and Privacy emphasizes the client’s right to privacy in
the counseling relationship
o“Counselors respect the privacy of prospective and current clients” (§B.1.b.).
oWhen clients request that information be disclosed, counselors should honor
these requests.
oIf the counselor believes that releasing the information might be detrimental to
the client’s best interests, these concerns should be discussed with the client, but
the ultimate decision belongs to the client.
oIt is important to realize that records are kept for the benefit of clients and that
counselors are obligated to provide clients with access to their records, unless
the records contain information that may be misleading or harmful to the client
(ACA, 2014, §B.6.e.).
oThe Health Insurance Portability and Accountability Act (HIPAA), a federal statute
that is discussed at length in Chapter 6, requires that clients be given access to
their counseling records except in exceptional circumstances in which clients may
be harmed by seeing their records.
oCounselors must inform clients at the outset that there are limitations to their
confidentiality.
Privileged communication
oBasically, privileged communication means that a judge cannot order information
that has been recognized by law as privileged to be revealed in court.
oAs a result, statutes have been enacted that specifically exempt certain
conversations between citizens and professionals from the general rule in law
that all relevant evidence will be presented in a court case. These laws are called
privileged communication statutes.
oOrigins of privileged communication
4 requirements for a relationship to be privileged under the law:
1. The communications must originate in a confidence that they
will not be disclosed.
2. This element of confidentiality must be essential to the full and
satisfactory maintenance of the relation between the parties.
3. The relationship must be one that, in the opinion of the
community, ought to be sedulously fostered.
4. The injury to the relationship that disclosure of the
communications would cause must be greater than the benefit
gained for the correct disposal of the litigation.
Almost every jurisdiction in the United States now has privileged
communication statutes for physician–patient interactions. However,
many of the statutes include a multitude of exceptions, including criminal
cases, workers’ compensation proceedings, will contests, cases where the
condition for which treatment or diagnosis was sought is raised by the
patient to support a claim or defense, or cases in which the parent–child
relationship is at issue
In a Texas case (Westbook v. Penley, 2007), a minister disclosed to his
congregation private information about a female client’s extramarital
affair that was revealed in a counseling relationship with the minister (it is
standard practice in this church to discuss personal issues brought to the
minister with the entire congregation).
The Texas court determined that the minister’s action was church
related and a civil court should not interfere, despite the fact that
the minister was also an LPC and would not have been allowed to
reveal the private information of his client if he had not also been
her minister.
The rationale for privileged communication in counseling relationships
oJaffee v. Redmond et al. (1996) was decided in favor of the existence of such a
privilege under the Federal Rules of Evidence.
oIn a review of psychotherapist–patient privilege decisions in federal courts,
Boumil, Freitas, and Freitas (2012) concluded, “The law that has evolved around
the exercise of this privilege is complex and far from uniform around the country.
oAsserting the privilege
A statutory privilege belongs to clients rather than to counselors
If you or your records are subpoenaed or if you are asked during a legal
proceeding to disclose privileged information, it is up to your client to
assert the privilege so that you will not have to disclose the information
However, sometimes the client cannot be located or is not present when
counselors are asked to disclose privileged information. In these
circumstances, the counselor has an obligation to assert the privilege on
behalf of the client.
Responding to subpoenas
oSubpoenas are legal documents that might require counselors to give a written
response to a written list of questions; produce copies of records; appear for a
deposition, court hearing, or trial; or appear and bring their records with them.
oUnless you deal with subpoenas on a regular basis in your work, you should
obtain legal advice before responding to a subpoena
oSuits for disclosure
If a counselor discloses confidential information and the disclosure does
not qualify as one of the exceptions to confidentiality and privilege, a
client could sue the counselor for malpractice.
oExceptions to Confidentiality and Privileged Communication
As a result, it is very important for counselors to know the content of the
privileged communication statute that exists in their state (if there is one)
and the specific exceptions that are included
Glosoff et al. categorized exceptions into nine areas and listed those areas
from the most to the least frequently cited in state statutes:
(a) in cases of a dispute between counselor and client; (b) when a
client raises the issue of mental condition in legal proceedings; (c)
when a client’s condition poses a danger to self or others; (d) in
cases of child abuse or neglect (in addition to mandated reporting
laws); (e) when the counselor has knowledge that the client is
contemplating commission of a crime; (f) during court ordered
psychological evaluations; (g) for purposes of involuntary
hospitalization; (h) when the counselor has knowledge that a
client has been a victim of a crime; and (i) in cases of harm to
vulnerable adults. (p. 455)
oClient waiver of the privilege
Confidentiality and privilege belong to clients, not to counselors
This occurs most often when clients explicitly ask counselors to give
information regarding the counseling relationship to third parties
Usually, clients who waive the privilege have an understanding that their
secrets will be revealed
In Cynthia B. v. New Rochelle Hospital (1982), the court found that the
client (rather than the mental health professional) had responsibility for
any embarrassment or inconvenience that resulted from the disclosure of
privileged mental health information in a lawsuit she had filed.
oDeath of a client
When there is no statutory language dealing with privilege and the death
of the holder, then the common law practice of allowing a legal
representative of the deceased person to assert the privilege generally is
followed
The ACA Code of Ethics states simply that counselors must protect the
confidentiality of deceased clients according to legal requirements and
documented preferences of the client (ACA, 2014, §B.3.f.).
Sharing information with subordinates or fellow professionals
oSharing information with others in order to provide the best possible services to
clients is permissible when (a) clerical or other assistants handle confidential
information, (b) counselors consult with colleagues or experts, (c) counselors are
working under supervision, and (d) other professionals are involved in
coordinating client care.
oClinical or other assistants may handle confidential information
The Code of Ethics alerts counselors to “make every effort to ensure that
privacy and confidentiality of clients are maintained by subordinates,
including employees, supervisees, students, clerical assistants, and
volunteers” (ACA, 2014, §B.3.a.).
oConfidential information may be shared when the counselor is working under
supervision
The Code of Ethics also requires counselors to obtain permission from
clients before they observe counseling sessions or review transcripts or
videotaped recordings of sessions with their supervisors, faculty, or peers
(§B.6.d.).
If the relationship between a client and the student’s supervisor would be
privileged if the supervisor were providing the counseling services, then it
is likely that privilege will exist between the client and the counselor–
supervisee as well.
oOther Professionals May Be Involved in Coordinating Client Care
Although the benefits of coordinating the efforts of various professionals
are obvious, as an ethical matter, clients need to be told what information
about them is being shared, with whom, and for what purposes (Herlihy
& Corey, 2015a)
According to §B.3.b. (ACA, 2014,), when client care involves a continuing
review by a treatment team, the client must be informed of the team’s
existence and composition, the information being shared, and the
purposes of sharing the information.
Standard B.6.g. (ACA, 2014) requires counselors to obtain written
permission from clients to disclose or transfer records to legitimate third
parties and reminds counselors that they are required to work to ensure
that receivers of their records are sensitive to the client’s confidentiality.
Protecting someone who is in danger
oWinston (1991) suggested that breaching a confidence can be justified by the
concept of vulnerability.
oPersons in a vulnerable position are unable to avoid risk of harm on their own
and are dependent on others to intervene on their behalf.
oWhen counselors, through their confidential relations with clients, learn that a
vulnerable person is at risk of harm, they have a duty to act to prevent the harm
oThis is a higher duty than the duty to maintain confidentiality.
oCounselors Must Take Action When they Suspect Abuse or Neglect of Children or
Other Persons Presumed to have Limited Ability to Care for Themselves
Counselors have both an ethical and a legal duty to disclose confidential
information when such disclosure is required to protect clients or
identified others from serious and foreseeable harm (ACA, 2014, §B.2.a.).
oCounselors Must Take Action to Protect Clients Who Pose A Danger to
Themselves
When counselors determine that clients are suicidal, they must do
something to prevent the clients from harming themselves (ACA, 2014,
§B.2.a.).
oCounselors Must Take Action When A Client Poses A Danger to Others
When counselors believe their clients may harm someone else, even
when such information is communicated by someone other than the
client (Edwards, 2006), counselors must take steps to prevent harm to the
person who is in danger (ACA, 2014, §B.2.a.).
oCounselors Must Determine Whether to Breach Confidentiality When A Client
Has A Communicable and Life-Threatening Disease and The Client’S Behavior is
Putting Others at Risk
This exception to confidentiality is the same as the exception to protect
others if you believe your client may harm other people (ACA, 2014,
§B.2.c.)
oCounseling multiple clients
Generally, when your client and one or more additional persons are in the
room, confidentiality is compromised and privilege usually is waived.
Although you can make your own pledge not to disclose certain
information, you cannot guarantee the behavior of others, such as group
participants or family members.
oConfidentiality Cannot be Guaranteed in Group Counseling
The ACA Code of Ethics (2014) gives some guidance for dealing with
confidentiality in groups in §B.4.a., which states that “counselors clearly
explain the importance and parameters of confidentiality for the specific
group.”
oConfidentiality Cannot Be Guaranteed in Couples or Family Counseling
You must make clear at the outset to both members of a couple the
limitations of confidentiality and how you will handle confidentiality
issues, obtain an agreement with the couple, and document the
agreement in writing (ACA, 2014, §B.4.b.)
Counseling minor or legally incompetent clients
oWhen Clients are Minor Children or Legally Incompetent, Counselors Cannot Give
the Same Assurances of Confidentiality as They Give Other Clients
Minors and adults who have been adjudicated incompetent in a court of
law do not have a legal right to enter into contracts. Thus, their parents or
guardians control their legal rights
oCourt order disclosures
Counselors Must Disclose Confidential Information When Ordered to do
so By a Court
There will be instances when counselors are called to testify in
court and their clients ask them not to reveal information shared
in counseling sessions. If the relationship is privileged, either the
client or the counselor will assert the privilege. In cases where no
privilege exists, counselors should ask the court not to require the
disclosure and should explain the potential harm that could be
done to the counseling relationship (ACA, 2014, §B.2.c.).
If the judge still requires the disclosure, only essential information
should be revealed (§B.2.e.)
Counselors who are ordered by a judge to reveal confidential
information should not worry that clients may sue them for
violating their privacy.
oLegal protections for counselors in disputes
Counselors May Reveal Confidential Information When it is Necessary to
Defend Themselves Against Charges Brought By Clients
the law of privileged communication requires that clients waive
their privilege when they bring complaints or malpractice lawsuits
against their counselors (Knapp & VandeCreek, 1987).
oOther legal exceptions
Clients Waive Their Privilege When They Bring Lawsuits Claiming
Emotional Damage
If clients claim emotional damage in a lawsuit, then the law
automatically waives their privilege associated with counseling
relationships (Knapp & VandeCreek, 1987).
Nonetheless, most courts have held that suits for normal distress
or physical injuries arising out of a physical trauma do not
automatically waive a plaintiff’s right to privilege in counseling
relationships
oPrivilege is generally waived in civil commitment proceedings
Privilege is usually waived by law for individuals who are being evaluated
by a court to determine whether they should be involuntarily committed
to a psychiatric hospital.
Evaluators should carefully explain the nature of the interview to
individuals who are being evaluated to ensure that the individual does
not misconstrue the relationship as involving mental health treatment
Diversity considerations in confidentiality and privileged communication
oCounselors must be sensitive to the cultural meanings of privacy and
confidentiality (ACA, 2014, §B.1.a.).
oIn collectivist cultures, the individual is seen as less important than the family or
group, and clients might not place much importance on their individual privacy,
although the privacy of their families or groups might be highly valued
oMaintaining client confidentiality becomes more complicated when the
counselor and client do not speak the same language and an interpreter is
required
o
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