Introduction to Confidentiality: Ethical, Legal and Clinical Issues

 

Confidentiality is considered the cornerstone of the psychotherapy relationship. Without an expectation of confidentiality why would any patient or client divulge to a mental health profession his or her most sensitive issues and secrets? Yet, absolute confidentiality does not exist. At best, we may promise relative confidentiality. But, we are still able to provide quality clinical services to individuals in need despite the ever present tension between keeping things in confidence and disclosing information when deemed necessary.

• Privacy, Confidentiality & Privilege: Privacy, confidentiality, and privilege are different, but related concepts that are of great importance to every mental health professional and those we serve. Without an adequate understanding of these concepts we risk engaging in unethical, illegal, and potentially harmful behavior. Privacy is a basic right granted to all our citizens; confidentiality is an ethical concept pertaining to the psychotherapy relationship; and privilege is a legal concept regarding who has the right to release confidential information.
• Limits to confidentiality: While most consumers believe that everything they share with their psychotherapist is confidential, a number of limits to confidentiality exist to include mandatory reporting requirements for suspected child abuse and neglect; vulnerable adult reporting requirements that may include suspected abuse, neglect, self-neglect, and exploitation of the elderly and other individuals dependent on others for their care; and duty to warn and protect requirements regarding threats to harm others made in treatment. (For an update about the Tarasoff ruling in CA and how it effects clinicians, go to: https://www.zurinstitute.com/tarasoff.html.)
• Informed Consent: Just how we address the limits of confidentiality through the informed consent process is of great importance and has significant implications for how the therapeutic process transpires. Informed consent is an ongoing process that should begin at the outset of the professional relationship. The client must be competent to consent, consent must be given voluntarily, and we must ensure the client understands what s/he is agreeing to. This course includes the Office Policies Form. For Essential Clinical Forms, go to: https://zurinstitute.com/forms.html.)
• Minors, Families, and Groups: When working with minors, families, and groups, there are a number of special issues that must be addressed up front that concern confidentiality expectations. While minors may not legally be able to consent to their own treatment, we still must explain relevant treatment information to them in a manner they can understand. With families and groups, clients need to understand that one person cannot waive privilege for another.
• Minors and Laws: Understanding the relevant state laws is important when working with children and adolescents since their confidentiality rights may vary depending on age and other circumstances. In some jurisdictions minors over age 16 may consent to their own treatment and decide who may have access to treatment information. Additionally, ‘mature’ or ’emancipated’ minors (typically those who are married or in the military) have the same rights as adults to consent to treatment.
• Office Practices: A thorough understanding of effective office practices is essential for preventing inadvertent breeches of confidentiality. Important steps include soundproofing, record storage and disposal practices, the use of technologies to include computers and fax machines, and the training of staff not to release confidential information without specific authorization.
• Forensic Settings: Knowledge of privilege rights and related procedures is essential when working in the forensic setting and in any situation involving the courts. While we must comply with a court order from a judge, psychotherapists do not necessarily need to comply with a subpoena. We also have the opportunity, through an attorney, to file a motion to quash a subpoena or to have a judge do an in-chambers review of records to see if they are relevant to the legal proceeding before ordering their release.
• Technology: The use of technology brings with it a number of important confidentiality challenges and concerns that each mental health professional should be aware of and address prior to using these technologies. The use of password protection and encryption are useful for protecting computer records. If our computer is networked or connected to the Internet, the use of firewall and virus protection are important to help prevent unauthorized access to, and release of, confidential materials in our computer. Ensuring care when punching in fax numbers and the use of a cover sheet stating the confidentiality of the materials being sent are useful as well. (For an online course on Telehealth that discusses confidentiality consideration in e-therapy, go to https://zurinstitute.com/telehealthcourse.html.)
• Insurance and Managed Care: Working with insurance and managed care companies brings with it additional risks to clients’ confidentiality. Understanding how insurance carriers may share and release information sent to them has a great impact on how we document our services and just what we share with them. We should share only the minimum amount of information needed to meet utilization review requirements knowing that once we share the information the ability to control who has access to it is out of our hands.
• Courts Rulings & Case Law: Court rulings such as Nagle v. Hooks and Jaffe v. Redmond have significant implications for each practicing mental health professional who endeavors to protect a client’s confidentiality. In divorce/custody situations in court a court-appointed guardian may be appointed who becomes the child’s holder of privilege in the context of the legal situation. In Federal courts clients retain their privilege rights and one can not be ordered to share information about or from their psychotherapy. Knowing this is vital for ensuring we do not violate the rights of those we are trying to help.
• Consultations: Consulting with experts can help you navigate the ethical and legal complexities of confidentiality and help you assure that you practice within the reasonable standard of care of your profession.
• Internet and Digital Considerations: Recent development in telehealth and online social networking have presented new and highly complex challenges to practitioners in regard to confidentiality and privacy issues. This basic course does not cover these complicated issues. You can find information on this topic at https://www.zurinstitute.com/articles_digitalethics.html or in our online course for CE credit on Digital Ethics.

For information regarding how the Patriot Act of 2001 may force therapists to disclose clinical information while, at the same time, forbid them to inform their clients about the disclosure, click here.

 
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