Ch. 6 – Confidentiality: Ethical & Legal Issues Related terms: Confidentiality – rooted in a client’s right to privacy, confidentiality is at the core of effective therapy; it “is the counselor’s ethical duty to protect private client communication. Privileged communication – a legal concept that generally bars the disclosure of confidential communications in a legal proceeding. – the specifics of this privilege vary from state to state. Privacy – the constitutional right of individuals to be left alone and to control their personal information Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (1)

Protecting Confidentiality Rights Fisher’s (2008) 6-step ethical practice model for protecting 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 Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (2)

Limits of Confidentiality – 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 counselor suspects abuse or neglect of a child or vulnerable adult – When a court orders counselor to make records available Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (3)

Privacy Issues With Telecommunication Devices  Do not acknowledge that clients are receiving services or give out information regarding clients to unknown callers.  Strive to verify that you are actually talking to the intended person when you make or receive calls in which confidential information will be discussed.  Be aware that there is no way to prevent your conversation from being recorded or monitored by an unintended person.  Be professional and cautious in talking about confidential information over the telephone; avoid saying anything off the record. Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (4)

Privacy Issues With Telecommunication Devices  Avoid making any comments that you would not want your client to hear or that you would not want to repeat in a legal proceeding.  Do not allow unauthorized persons to hear answering machine messages in your office as they are being left or retrieved.  If you use voice mail or an answering service, ensure that your access codes are not disclosed to unauthorized persons.  When you leave a message on an answering machine, be aware that the intended person may not be the one who retrieves your message. Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (5)

Privacy Issues With Telecommunication Devices  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 a pager or a cell phone to send text messages, exercise caution. 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 voice mail message. Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (6)

Implications of HIPAA for Mental Health Providers The Health Insurance Portability and Accountability Act of 1996 (HIPAA) – passed by Congress to promote standardization and efficiency in the health care industry and to give patients more rights and control over their health information. – The HIPAA Privacy Rule developed out of the concern that transmission of health care information through electronic means could lead to widespread gaps in the protection of client confidentiality. Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (7)

Implications of HIPAA for Mental Health Providers If you submit a claim electronically, even once, you are likely to be considered a “covered entity” for HIPAA purposes. Be familiar with the 4 standards of HIPAA: 1.privacy requirements 2.electronic transactions 3.security requirements 4.national identifier requirements Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (8)

Duty to Protect Potential Victims Balancing client confidentiality and protecting the public is a major ethical challenge Counselors must exercise the ordinary skill and care of a reasonable professional to: 1.Identify clients who are likely to do physical harm to third parties 2.Protect third parties from clients judged potentially to be dangerous 3.Treat those clients who are dangerous Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (9)

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 Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (10)

Legal Precedents Tarasoff Case – duty to warn of harm to self or others – duty to protect Bradley Case – duty not to negligently release a dangerous client Jablonski Case – duty to commit a dangerous individual Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (11)

Legal Precedents Hedlund Case – extends duty to warn to anyone who might be near the intended victim and who might also be in danger Jaffee Case – communications between licensed psychotherapists and their clients are privileged and therefore protected from forced disclosure in cases arising under federal law Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (12)

Risk Management Guidelines: Cases of Duty to Warn/ Protect Consult with an attorney if you are not clear about your legal duty. Inquire about a client’s access to weapons, homicidal ideation, and intentions, which would include whether a specific victim is involved. Consider all appropriate steps to take and the consequences of each. Know and follow the policy of your institution. Document all actions you take and the rationale behind each of your decisions. Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (13)

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 to acquiring information about student suicide. Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (14)

School Counselor Liability for Student Suicide 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. Professional journals and professional conferences need to continue highlighting the issue of student suicide. Counselor education programs need to better prepare future school counselors to recognize students at risk for suicide. Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (15)

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. Ascertain whether there has been a recent diagnosis of a serious or terminal health condition. Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (16)

Guidelines for Assessing Suicidal Behavior Determine whether the individual 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. Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (17)

Protecting Children, the Elderly, and Dependent Adults From Harm Mandatory reporting – designed to encourage reporting of any suspected cases of child, elder, or dependent adult abuse; thus, therapists are advised to err on the side of reporting in uncertain circumstances. – If children, the elderly, or other dependent adults disclose that they are being abused or neglected, the professional is required to report the situation under penalty of fines and imprisonment. – The professional has an obligation to protect those who cannot advocate for themselves. Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (18)

Types of Elder Abuse Physical abuse Sexual abuse Psychological or emotional abuse Neglect Abandonment Financial or material exploitation Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (19)

Ethical Guidelines for Disclosure of a Client’s HIV Status Counselors may be justified in disclosing information to a third party who is at risk, yet counselors are not necessarily obligated to take this course of action Sufficient factual grounds for high risk of harm to third party must exist Third party is at risk of death or substantial bodily harm Harm to the third party is not likely to be prevented unless counselor makes disclosure Third party cannot reasonably be expected to foresee or comprehend high risk of harm to self Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (20)

Recommendations to Professionals Who Counsel HIV Clients All limits to confidentiality should be discussed with the client at the outset of treatment Therapists must be aware of state laws regarding their professional interactions with HIV-positive clients Therapists need to keep current with regard to relevant medical information Therapists need to know which sexual practices are safe Corey, 8e, ©2011, Brooks/ Cole – Cengage Learning Issues and Ethics - Chapter 6 (21)