1. Common Ethical Issues When Serving Victims of Crime Minnesota Alliance on Crime April 17, 2015

2. Presenter  Caroline Palmer, JD  Law and Policy Manager  Minnesota Coalition Against Sexual Assault

3.  Privacy/Confidentiality  Informed Consent  Conflicts of Interest  Boundaries  Your questions?

4. Privacy/Confidentiality  “Trust is gained in drops and lost in buckets.”  Alicia Aiken, The Confidentiality Institute

5. Privacy Concepts © 2014 Confidentiality Institute Privacy I decide who knows my information. Confidentiality You have a legal or ethical duty to protect my information. Privilege They can't make you share my information.

6. Key Players © 2014 Confidentiality Institute Individuals Need privacy to exercise control over their lives. Professionals Provide confidentiality to build trust in working relationships. Governments Grant privilege to protect important social values.

7. Privacy/Confidentiality  Who wants access to victim/survivor information?  Who decides whether to share information?

8. Confidentiality  Challenges  Disrupt victim’s recovery  Chilling effect on seeking help  Damage one-to-one relationship between victim and advocate  Damage public trust relationship in advocacy programs  Negative impact on reporting and public safety

9. Layers of Protection  Privilege  Data Practices  Contractual Obligations  Additional Issues Under Minnesota Law

10. Who Has the Record?  Third party?  The government?  Why does it matter?

11. What is Privilege?  Held by the survivor/client only  Different professions have privilege  Third parties  Why does privilege exist?  When is privilege not invoked?  Are some privileges stronger than others?  Absolute  Qualified

12. Absolute Privilege  These records are the most protected  Only time they should be disclosed is with consent of privilege holder  Legislature decides – 595.02  Attorney client  Clergy  Medical (includes doctors, nurses, psychologists, licensed social worker)  Sexual assault counselors

13. Sexual Assault Counselor Privilege  (k) Sexual assault counselors may not be allowed to disclose any opinion or information received from or about the victim without the consent of the victim. However, a counselor may be compelled to identify or disclose information in investigations or proceedings related to neglect or termination of parental rights if the court determines good cause exists. In determining whether to compel disclosure, the court shall weigh the public interest and need for disclosure against the effect on the victim, the treatment relationship, and the treatment services if disclosure occurs. Nothing in this clause exempts sexual assault counselors from compliance with the provisions of sections 626.556 and 626.557 Sexual assault counselor" for the purpose of this section means a person who has undergone at least 40 hours of crisis counseling training and works under the direction of a supervisor in a crisis center, whose primary purpose is to render advice, counseling, or assistance to victims of sexual assault.

14. Qualified Privilege  These records may be released with consent of privilege holder  There may be other situations when release is warranted  Examples – 595.02  Marital, parent/child  Chemical dependency counselors  Domestic Abuse Advocates

15. Domestic Abuse Advocate Privilege  A domestic abuse advocate may not be compelled to disclose any opinion or information received from or about the victim without the consent of the victim unless ordered by the court. In determining whether to compel disclosure, the court shall weigh the public interest and need for disclosure against the effect on the victim, the relationship between the victim and domestic abuse advocate, and the services if disclosure occurs. Nothing in this paragraph exempts domestic abuse advocates from compliance with the provisions of sections 626.556 and 626.557.  For the purposes of this section, "domestic abuse advocate" means an employee or supervised volunteer from a community-based battered women's shelter and domestic abuse program eligible to receive grants under section 611A.32; that provides information, advocacy, crisis intervention, emergency shelter, or support to victims of domestic abuse and who is not employed by or under the direct supervision of a law enforcement agency, a prosecutor's office, or by a city, county, or state agency.

16. Mandated Reporting  Child maltreatment and in some cases abuse of vulnerable adults  Exceptions to privacy and confidentiality protections  Extreme importance of informed consent

17. Data Practices: Chapter 13  Purpose is open government but with limitations  These records may be released with consent of victim  Different categories of protections  Contractual obligations for nonprofit organizations if receiving government funding

18. Data Practices Act  For a minor, "individual" includes a parent or guardian or an individual acting as a parent or guardian in the absence of a parent or guardian, except  the responsible authority shall withhold data upon request by the minor if the responsible authority determines that withholding the data would be in the best interest of the minor  Minn. Stat. § 13.02, Subd. 8

19. Parental Access to Records Can be limited by state law: and Can be limited by court order entered in divorce, separation or custody proceeding Minnesota Administrative Rule 1205. 0500, Subpart 2 Irene Opsahl, Minneapolis Legal Aid Youth Law Project

20. When may “Responsible Authority” deny parental access to data?  Minor may request that the responsible authority deny access.  Upon receipt of such a request, the responsible authority shall determine if honoring the request to deny parental access would be in the best interest of the minor data subject. Minnesota Administrative Rule 1205. 0500, Subpart 3.A. Irene Opsahl, Minneapolis Legal Aid Youth Law Project

21. Best Interests Determination shall be guided by “at least the following”:  Minor’s age and maturity = ability to explain the reasons for and to understand the consequences of the request to deny access;  Minor’s personal situation = will denial of access protect the minor from physical or emotional harm;  Minor’s reasons for precluding access = are there grounds for believing they are reasonably accurate;  Nature of the data = is it of such a nature that disclosure could lead to physical or emotional harm to the minor; and  Are the services covered by Minn. Stat. §§ 144.341 to 144.347. If so, the data may be released only if failure to inform the parent would seriously jeopardize the health of the minor.144.341144.347 Minnesota Administrative Rule 1205. 0500, Subpart 3.B. Irene Opsahl, Minneapolis Legal Aid Youth Law Project

22. Duties of the Responsible Authority  Shall notify minors of the right to request that parental access to private data be denied.  May require the minor data subject to submit a written request which shall set forth the reasons for withholding the data and shall be signed by the minor. Minnesota Administrative Rule 1205.0500, Subpart 3.A. Irene Opsahl, Minneapolis Legal Aid Youth Law Project

23. Contractual Obligations  What does your state funder require? MDH, DHS, OJP/DPS (some connections to federal law)  What does federal law require (FVPSA, VOCA, VAWA, HUD, etc?)  Aggregate data requirements (no personally identifying information)  What if funder requests victim data for audit purposes?

24. Additional Issues  Some records are not covered by Minnesota statute  Examples: social media – what is private or public?  General right to privacy

25. Subpoenas  Subpoenas are not automatic authorized access!  Organization’s confidentiality obligations  An opportunity to give notice and the opportunity to object – to identify what information is really necessary (if any) and what information must be protected  Internal policies and attorney consultation  Motions to quash  In camera review invades victim privacy

26. Waiver of Privilege/ Informed Consent  Survivor consent = informed consent  Written vs. Verbal  Time-limited  Revocable  Through what mechanism is the information shared and with whom?  Future protections

28. Releases Anytime sharing identifying information about a survivor outside of your agency Release necessary to even admit someone is receiving services from your agency (otherwise cannot confirm/deny) Risks associated with sharing information

29. Informed and Time-Limited  Releases are voluntary (not required for service from agency)  Amending and revoking releases  Reasonably time-limited (depends on the service but stay minimal)  Keep up with changes

30. Conflicts of Interest  Parties  Potential problems  Policies  Alternatives  Examples:  Mutual allegations  Prison Rape Elimination Act

31. Boundaries  Role clarity  Reminders  Policies  Setting limits  Stopping service or referring to another  Self-care

32. Caroline Palmer Law and Policy Manager Minnesota Coalition Against Sexual Assault caroline@mncasa.org 651.288.7445 www.mncasa.org