Confidentiality 2.1.2021
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Confidentiality, Privilege, & Privacy - EDC 530 - Dr. Latofia Parker , PhD., NCC, LPC FOCUS QUESTION What do you think are the distinctions among the terms “privacy
,” “confidentiality
,” and “privileged communication
?”
CONFIDENTIALITY Counselors recognize that trust is a cornerstone of the counseling relationship. Counselors aspire to earn the trust of clients by creating an ongoing partnership, establishing and upholding appropriate boundaries, and maintaining confidentiality. Counselors communicate the parameters of confidentiality in a culturally competent manner (ACA, 2014). CONFIDENTIALITY
Protecting Confidentiality Rights
Fisher’s (2008, 2016) 6-step ethical best practice model for protecting client's confidentiality rights:
1.
Preparation
2.
Tell clients the truth “up front” 3.
Obtain truly informed consent before making a disclosure
4.
Respond ethically to legal requests for disclosure 5.
Avoid the “avoidable” breaches of confidentiality 6.
Talk about confidentiality Limits of Confidentiality
Privileged communication Privilege is a legal term that refers to the protection of confidential communications between two parties. Privilege is determined by legal statue and varies from state-to-state. Counselor-client relationships are considered privileged. Privilege belongs to the client, yet the counselor is charged with the responsibility of upholding the privilege (Wheeler & Bertram, 2019). Confidentiality refers to the ethical duty of counselors to protect the private communication. It also may have legal implications that flow from the counselor's legal duty
(Wheeler & Bertram, 2019).
When clerical assistants handle confidential information When a counselor consults
When a counselor is being supervised
When a client has given consent
When a client poses danger to self or others
When a client discloses intention to commit a crime
When a counselor suspects abuse or neglect of a child or vulnerable adult
When a court orders counselor to make records available
Exceptions to privilege
Client puts his or her emotional condition into issue in a lawsuit
Civil commitment proceedings Client initiates a malpractice action or licensure board complaint against a counselor.
A defendant who claims insanity
In cases of child custody or abuse litigation
Statements made in the presence of a 3rd party (I.e, group, family therapy, couples counseling). Child/adolescent therapy. (Corey, Corey, Corey, 2019; Bertram & Wheeler, 2019). Varies from state to state
Alabama Privilege Law Supreme court precedent Jaffee v. Redmond (1996)-
was the first Supreme Court case to definitively uphold the concept of a psychotherapist-patient privilege in the federal court system. Read more about Jaffee v. Redmond The Federal Psychotherapist-Patient Privilege Justia US Supreme Court https://www.apa.org/about/offices/ogc/amicus/jaffee
affee v. Redmond
Liability for Civil Damages
The responsibility to protect the public from dangerous acts of violent clients entails liability for civil damages when practitioners neglect this duty by:
Failing to diagnose or predict dangerousness
Failing to warn potential victims of violent behavior
Failing to commit dangerous individuals
Prematurely discharging dangerous clients from a hospital
PRIVACY The constitutional right of individuals to be left alone and to control his/her personal information. Privacy & HIPPA The Health Insurance Portability and Accountability Act of 1996 (HIPAA). Promotes standardization and efficiency in the health care industry and give patients more rights/control over their health information. HIPAA Privacy Rule
(2018, as amended) developed out of concern that transmission of health care information through electronic means could lead to wide gaps in protection of client confidentiality. The privacy rule applies to both paper and electronic transmissions of protected health information (PHI). HIPPA Security Rule (2018, as amended) requires technical, administrative, and physical safeguards to protect the security of PHI in electronic form. HIPPA COVERED ENTITIES
Covered entities : health plans, health care clearinghouses, and helath care providers who transmit health information by electronic means. To determine if you are covered entity, you must answer yes to all three of these questions: 1.
Are you a health care provider? 2.
Do you transmit information electronically? 3.
Do you conduct covered transactions, as outlined by HIPPA?
Privacy Issues With Telecommunication Devices
Be aware that there is no way to prevent your conversation from being recorded or monitored by an unintended person.
Avoid making any comments you would not want your client to hear or you would not want to repeat in a legal proceeding.
When you leave a message on an answering machine, be aware that the intended person may not be the one who retrieves your message.
If you use a cell phone to send text messages, exercise caution.
o
In sending a text message to a client, be mindful of ensuring your client’s privacy by exercising the same caution you would if you were sending a voicemail message.
Do not acknowledge that clients are receiving services or give out information regarding clients to unknown callers.
Strive to verify that you are talking to the intended person when you make or receive calls in which confidential information will be discussed.
HIPPA STANDARDS
PRIVACY
ELECTRO
NIC TRANSMIS
SION
SECURITY
NATIONAL IDENTIFIE
R
Be professional and cautious in talking about confidential information over the telephone.
Avoid saying anything off the record.
Do not allow unauthorized persons to hear
vocie mail messages
in your office as they are being left or retrieved.
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HIPPA AND MENTAL HEALTH
To read more about HIPPA guidelines related to mental and behavioral health, including opioid overdose review the following website: HIPPA ad Mental Health The health information technology for economic and clinical health (Hitech)
HITECH, enacted as part of the American Recovery and Reinvestment Act of 2009, was signed into law on February 17, 2009, to promote the adoption and meaningful use of health information technology. Subtitle D of the HITECH Act addresses the privacy and security concerns associated with the electronic transmission of health information, in part, through several provisions that strengthen the civil and criminal enforcement of the HIPAA rules (
HITECH ACT )
RECENT HITECH VIOLATIONS
SPECIFIC POPULATION CONCERNS
Subpoenas o
A subpoena is an official court document that requires the recepient to appear in court to be questioned as a witness, or to be deposed at another location, about facts underlying a lawsuit. o
A subpoena may also require the production of documents such as progress and/or process notes. If you are talking to a client by cellular phone assume
that he or she is not in a private place.
Realize that your conversation may be intercepted by an unauthorized person.
If you use voicemail or an answering service, ensure your access codes are not disclosed to unauthorized persons.
A N U N E C R Y P T E D L A P T O P S T O L E N F R O M
A C O V E R E D E N T I T Y 'S U N L O C K E D T E S T I N G O F F I C E . A N E M
P L O Y E E L E F T A N E X T E R N A L P O R T A B L E H A R D D R I V E C O N T A I N I N G E L E
C T R O N I C P H I I N A V E H I C L E T H A T W A S S T O L E N . A B U S I N E S S A S S O C I A T E E M
P L O Y E E S N E T A N E M
A I L T O M
U L T I P L E P A T I E N
T S W
I T H O U C C O N C E A L I N G P A T
I E N T E M
A I L A D D R E S S E S S .
o
Counselors are required to respond immediately with deliberation to avoid asserting privilege (Wheeler
& Bertram, 2019). RESPONDING TO SUBOENAS
COUNSELING MINORS
"Counselors inform parents and legal guardians about the role of counselors and the confidential nature of the counseling relationship... Counselors are sensitive to the cultural diversity of families and respect the inherent rights and responsibilities of parents/guardians regarding the welfare of their children... Counselors work to establish, as appropriate, collaborative relationships with parents/guardians to best serve clients (ACA, Standard B.5.b). "
COUNSELING MINORS – SCHOOL SETTINGS
"School counselors recognize their primary ethical obligation for confidentiality is to the students but balance that obligation with an understanding of parents’/guardians’ legal and inherent rights to be the
guiding voice in their children’s lives. School counselors understand the need to balance students’ ethical rights to make choices, their capacity to give consent or assent, and parental or familial legal rights and responsibilities to make decisions on their child’s behalf (ASCA, 2016; Standard A.2.f).”
FERPA Duty to Protect Potential Victims
o
Counselors must exercise the ordinary skill and care of a reasonable professional to: o
Identify clients who are likely to do physical harm to third parties
o
Protect third parties from clients judged potentially to be dangerous
o
Treat those clients who are dangerous
Consult an experience
d health care attorney.
01
Determine if the client will give written consent to release information/
testify.
02
If client agrees then proceed as directed by your attorney.
03
If client declines, then request client's attorney file motion to squash subpoena.
04
If the proceeding steps don't work file a motion for a court order.
05
If court order is issued, proceed under the direction of legal counsel.
06
To Read more about FERPA visit Family Educational Rights and Privacy Act (FERPA)
. Things to Consider: Education record vs. Sole possession notes, aka, "memory jogger." Noncustodial parents have a right to educational records, unless there is a contrary court order.
Couples and Family Counseling "In couples and family counseling, counselors clearly define who is considered “the client” and discuss expectations and limitations of confidentiality. Counselors seek agreement and document in writing such agreement among all involved parties regarding the confidentiality of information. In the absence of an agreement to the contrary, the couple or family is considered to be the client" (ACA, Standard B.4.b). "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 (AAMFT, 2015; Standard II). Custody Issues "Counselors do not evaluate current or former clients, clients’ romantic partners, or clients’ family members for forensic purposes. Counselors do not counsel individuals they are evaluating" (
ACA Code of Ethics, 2015; Standard E.13.c). Therefore, counselors are not allowed to opine on which parent should receive custody or offer suggestions regarding visitation, if a prior counseling relationship existed with the couple and/or family.
Group Counseling In group work, counselors clearly explain the importance and parameters of confidentiality for the specific group (ACA Code of Ethics, 2015; Standard B.4.a). Group Workers define confidentiality and its limits (for example, legal and ethical exceptions and expectations; waivers implicit with treatment plans, documentation and insurance usage). Things to Consider:
Things to Consider:
from therapy.
Ground rules when one person is absent from therapy.
s.
Rules for meeting privately with member
s.
with secrets.
How to deal with secrets.
relationship.
Shifts in the counseling relationship.
Joint records
Joint records
Things to Consider: Be informed of the rights of unmarried parents. Make sure you inquire about custody and legal rights of parent bringing child to therapy.
Consult with your attorney when working with clients involved in custody cases.
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Group Workers have the responsibility to inform all group participants of the need for confidentiality, potential consequences of breaching confidentiality and that legal privilege does not apply to group discussions (unless provided by state statute) (Association for Specialist in Group Work, 2007). SUBSTANCE ABUSE RECORDS
To understand and learn more about confidentiality of substance abuse records, view SAMHSA: Confidentiality of Substance Use Disorder Patient Records
Counselors should consult with health care attorneys when they receive third-party requests or subpoenas for records of substance abuse treatment to make sure they are following both state and federal requirements (Wheeler & Bertram, 2019). Public offenders & Law enforcement
o
Attempt to provide confidentiality as much as possible; however, recognize that others within the criminal justice process might have access to client records. o
HIPPA Guidelines for Disclosure: HIPPA and Law Enforcement
o
In cases involving law enforcement, it is important to: o
Consult with legal representation
o
Know federal and state laws DEATH OF A CLIENT
"Counselors protect the confidentiality of deceased clients, consistent with legal requirements and the documented preferences of the client" (ACA Code of Ethics, 2015; Standard, B.3.f.)
Keep in mind that each state might have its rule such as allowing the administrator or executor of the deceased person access to records (Wheeler & Bertram, 2019). Title IX and Confidentiality o
Title IX of the Education Amendment (as amended 2017) was enacted to prevent discrimination on the basis of sex in public and private institutes of higher learning (Wheeler & Bertram, 2019). o
Some universities may require that the professional counselor report incidents of sexual assualt to the Title IX Compliance officer or serve as the officer.
o
Counselors are advised to not take on such roles and to only disclose sexual assualt with client's consent (Wheeler & Bertram, 2019). DUTIES TO REPORT, WARN, AND/OR PROTECT
Protecting Children, Elderly, and Dependent Adults from Harm
Professional Counselors have a moral, ethical and legal obligation to protect those who cannot advocate for themselves. ABUSE OF CHILDREN, ELDERLY, VULNERABLE ADULTS
o
Mandatory reporting is designed to encourage reporting of any suspected
cases of child, elder, or dependent adult abuse.
o
Mandatory reporters can be held criminally and/or civilly negligent for not reporting suspected cases of
child/elder abuse.
o
For example: Searcy v. Auerbach (1992)-
psychologist disclosed his opinion to the father but didn't report it to the appropriate state agency (Wheeler & Bertram, 2019). TO REPORT OR NOT TO REPORT
Risk Management Guidelines o
In cases involving the duty to warn and protect:
o
Consult with an attorney if you are not clear about your legal duty as well as with colleagues or a supervisor.
o
Know the relevant laws in your state.
o
Inquire about a client’s access to weapons, homicidal ideation, and intentions, including whether a specific victim is involved.
o
Document all actions you take and the rationale behind each of your decisions.
Duty to Protect Potential Victims
Balancing client confidentiality and protecting the public is a major ethical challenge.
ESTABLISHING DUTY TO WARN/PROTECT
LIMITING DUTY TO WARN/PROTECT
Domestic violence/intimate partner violence
Past Crimes of Clients Unprofessional Conduct of Colleagues Jablonski v. United States, 1983
Duty to commit a dangerous client Hedlund v. Superior Court, 1983
Extends duty to warn in CA to foreseeable, identiable person who might be near the intened victim when the threat is carried out and thus might also be in danger. Hamman v. County of Maricopa, 1989
Extends duty to protect a foreseeable victim within the "zone of danger"
Tarasoff
v. Regents of the University of California, 1976
Duty to warn Duty to protect
Bradley Center v. Wessner, 1982
Duty not to negligently release a dangerous client
Duty to protect
FURTHER EXPANSION OF DUTY TO WARN/PROTECT
STATE STATUES ON DUTY TO WARN/PROTECT
Mental Health Professionals' Duty to Warn
OTHER DUTY TO WARN/PROTECT SITUATIONS
Risk Management Guidelines
Perreira v. Colorado, 1989
Rejected foreseeable victim analysis.
Boynton v. Burglass, 1991 (Florida)
Rejected notion that mental health professionals have a "crystal ball" to predict dangerousness
Thapar v. Zezulka, 1996 (
Texas)
Mental health professionals have no common-law duty to warn readily identifible third person of a patient's threats against them
Ewing v. Goldstein (2004) & Ewing v. Northridge Hosp. Med (2004)
Duty to warn/protect if predict or believe a patient possess a threat to a third party, even though the threat is relayed by someone other than the client.
Volk v. DeMeerler (2016)-
Washington Duty to protect foreseeable victims even if patient has not communicated any violent thoughts or homicdal threats during therapy. Clients with AIDS and HIV-Positive Clients Workplace Violence School Violence and New Legislative Inittiatives Red Flag Laws Threats by the Client Against the Counselor
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SUICIDE & ETHICS
Apprise clients of the limits of confidentiality
Apprise
Consult with trusted colleague and/or supervisor
Consult
Know the law in your state
Know
Review the ACA Code of Ethics Review
Consult with legal counsel
Consult
Make referrarls when appropriate
Make
Obtain prior medical and behavioral history
Obtain
Inquire about client's access to weapons
Inquire about
Consider all appropriate clinical responses
Consider
Know and follow all applicable institutional policy Know and follow
Document all actions taken, rejected and the decision-making process Document
School Counselor - Liability for Student Suicide Counselors need to educate school employees (especially teachers) about the risk factors associated with adolescent suicide.
Counselors might institute peer assistance programs to help identify students at risk for suicide.
It would be useful for school counselors to have increased access to training programs geared toward acquiring information about student suicide.
In cases where school counselors make an assessment that a student is at risk for suicide, it is imperative that the student’s parents or guardians be notified.
One of the first cases that addressed school counselor liability for student suicide was Eisel v. Board of Education (1991). School counselors would do well to take the initiative in obtaining continuing education on recent developments in the field of student suicide to help limit their legal liability.
Guidelines for Assessing
- Suicidal Behavior
Take direct verbal warnings seriously.
Pay attention to previous suicide attempts.
Identify clients suffering from depression.
Be alert for feelings of hopelessness and helplessness.
Monitor severe anxiety and panic attacks.
Explore the interpersonal stressor of loss and separation.
Ascertain whether there has been a recent diagnosis of a serious or terminal health condition.
1
Ascertain whether there has been any suicide in the family.
2
Assess the client’s support system. If there is no support system, the client is at greater risk.
3
Determine whether the client has a plan.
Identify clients who have a history of severe alcohol or drug abuse.
Be alert to client behaviors (e.g. giving prized possessions away, finalizing business affairs, or revising wills).
Determine the history of psychiatric treatment.
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