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Confidentiality

Professional Mental Health Ethics

A Training Resource

By James J Messina, Ph.D., CCMHC, NCC, DCMHS-T
Confidentiality: Definition of 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 


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 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


Implications of HIPAA for Mental Health Professionals

  • The Health Insurance Portability and Accountability Act of 1996 (HIPAA) was 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. 
  • If Mental Health Professionals submit a claim electronically, even once, they are likely to be considered a “covered entity” for HIPAA purposes. (see related references on HIPAA in the references listed below)

Mental Health Professionals need to be familiar with the 4 standards of HIPAA:
  1. privacy requirements
  2. electronic transactions
  3. security requirements
  4. national identifier requirements
Document
2013 HIPAA Omnibus Rule Changes in Federal Register
Document
Tip Sheet on How to adjust to new HIPAA and HITECH rules
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.

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. 

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.
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:

  • Identify clients who are likely to do physical harm to third parties
  • Protect third parties from clients judged potentially to be dangerous
  • Treat those clients who are dangerous

Liability for Civil Damages if not Practice Duty to Warn
The responsibility to protect the public from dangerous acts of violent clients entails liability for civil damages when practitioners neglect this duty by:
  1. Failing to diagnose or predict dangerousness
  2. Failing to warn potential victims of violent behavior
  3. Failing to commit involuntarily to mental health facility dangerous individuals
  4. Prematurely discharging dangerous clients from a hospital

Legal Precedents governing the Duty to Warn

Tarasoff Case

Duty to warn of harm to self or others and duty to protect

Bradley Case

Duty not to negligently release a dangerous client

Jablonski Case

Duty to commit a dangerous individual

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


Risk Managment Guidelines in Cases involving 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.
References on Confidentiality


Confidentiality Overview

Beigler, J.S. (1984). Tarasoff v. confidentiality. Behavioral Sciences & the Law, 2(3), 273-289.

 

Butler, M.H. & Zamora, J.P. (2013). Ethical and legal concerns for MFT's in the context of clergy-collaborative care: Is what I share really confidential? The American Journal of Family Therapy, 41(2), 85-109. DOI: 10.1080/01926187.2012.677713.

 

Corley, S.O. (2012).  Protection for psychotherapy notes under the HIPAA privacy rule: As private as a hospital gown – Jaffee v. Redmond. Journal of Law-Medicine, 22(2), 489-534.

 

Davis, K.L. (1980). Is confidentiality in group counseling realistic? Personnel & Guidance Journal, 59(4), 197-201.

 

Donner, M.B., VandeCreek, L., Gonsiorek, J.C. & Fisher, C.B. (2008) Balancing confidentiality: Protecting privacy and protecting the public. Professional Psychology: Research & Practice, 39(3), 369-376. DOI: 10.1037/0735-7028.39.3.369.

 

Fisher, M.A. (2007). Protecting confidentiality rights: The need for an ethical practice model. American Psychologist, 63(1),1-13. DOI: 10.1037/0003-066X.63.1.1.

 

Fisher, M.A. (2008). Clarifying confidentiality with the ethical practice model. American Psychologist, 63(7), 624-625.  DOI: 10.1037/0003-066X.63.7.624.

 

Schneider, J.P. & Levinson, B. (2006). Ethical dilemmas related to disclosure issues: Sex addiction therapists in the trenches. Sexual Addiction & Compulsivity, 13(1), 1-39. DOI: 10.1080/10720160500529193.

 

Slive, L. & Cramer, R. (2012). Health reform and the preservation of confidential health care for young adults. Journal of Law, Medicine & Ethics, 40(2), 383-390.  DOI: 10.1111/j.1748-720X.2012.00671.x.

 

Strein, W. & Hershenson, D.B. (1991). Confidentiality in nondyadic counseling situations. Journal of Counseling & Development, 69(4), 312-316.

 

Striefel, S. (2008). Duty to protect or warn. Biofeedback, 36(3), 86-89.

 

Wulff, D.P., St George, S.A. & Besthorn, F.H. (2011) Revisiting confidentiality: Observations from family therapy practice. Journal of Family Therapy, 33(2), 199-214. DOI: 10.1111/j.1467-6427.2010.00514.x.

 

Younggren, J.N. & Harris, E. (2008). Can you keep a secret? Confidentiality in psychotherapy. Journal of Clinical Psychotherapy, 64(5), 589-600.  DOI: 10.1002/jclp.20480.


Confidentiality in Managed Care

Daniels, J.A. (2001). Managed care, ethics, and counseling. Journal of Counseling & Development, 79(1), 119-122.

 

Danzinger, P.R. & Welfel, E.R. (2001). The impact of managed care on mental health counselors: A survey of perceptions, practices and compliance with ethical standards. Journal of Mental Health Counseling, 23(2), 137-150.

 

Confidentiality in Private Practice

Brennen, C. (2013). Ensuring ethical practice: Guidelines for mental health counselors in private practice. Journal of Mental Health Counseling, 35(3), 245-261.

 

Harrington, J.A. (2013). Contemporary issues in private practice: Spotlight on the self-employed mental health counselor. Journal of Mental Health Counseling, 35(3),189-197.

 

Sanders, R.K. (2006). Serving with care: Ethical issues to consider when faced with high risk situations. Journal of Psychology and Christianity, 25(1), 63-67. 

 

Confidentiality in Integrated Medicine Setting

Hodgson, J., Mendenhall, T. & Lamson, A. (2013). Patient and provider relationships: Consent, confidentiality, and managing mistakes in integrated primary care settings. The Journal of Collaborative Family HealthCare, 31(1), 28-40. DOI: 10.1037/a0031771.

 

Liew, J. (2012). Balancing confidentiality and collaboration within multidisciplinary health care teams. Journal of Clinical Psychology in Medical Settings, 19(4), 411-417. DOI: 10.1007/s10880-012-9333-0.

 

Mullin, D. & Stenger, J. (2013). Ethical matters in rural integrated primary care settings. The Journal of Collaborative Family HealthCare, 31(1)m 69-74. DOI:10.1037/a0031860.

 

Confidentiality with Patients with HIV and/or AIDS

Cohen, E.D. (1990). Confidentiality, counseling and clients who have AIDS: Ethical foundation of a model rule. Journal of Counseling & Development, 68(3), 282-286.

 

DiMarco, M. & Zoline, S.S. (2004). Duty to warn in the context of HIV/AIDS-related psychotherapy: Decision making among psychologists. Counseling and Clinical Psychology Journal, 1(2), 68-85.

 

Gray, L.A. & Harding, A.K. (1988). Confidentiality limits with clients who have the AIDS Virus. Journal of Counseling & Development, 66(5), 219-223.

 

Harding, A.K., Gray, L.A. & Neal, M. (1993). Confidentiality limits with clients who have HIV: A review of ethical and legal guidelines and professional policies. Journal of Counseling & Development, 71(3), 297-305.

 

Hook, M.K. & Cleveland, J.L. (1999). To tell or not to tell: Breaching confidentiality with clients with HIV and AIDS. Ethics & Behavior, 9(4), 365-381.

 

Simone, S.J. & Fulero, S.M. (2001). Psychologists’ perceptions of their duty to protect uninformed sex partners of HIV-positive clients. Behavioral Sciences & the Law, 19(3), 423-436.

 

Confidentiality with Military and Veterans

Hoyt, T. (2013). Limits to confidentiality in U.S. Army treatment settings. Military Psychology, 25(1), 46-56. DOI: 10.1037/h0094756.

 

Neuhauser, J.A. (2011) Lives of quiet desperation: The conflict between military necessity and confidentiality. Creighton Law Review, 44(4), 1003-1043.

 

Schwoebel, C. (2013). Confidentiality: A conundrum in veteran behavioral healthcare. Developments in Mental Health Law, 32(1), 1-4.

 

Weiss, E., Coll, J.E. & Metal, M. (2011) The influence of military culture and veteran worldviews on mental health treatment Practice implications for combat veteran help-seeking and wellness. International Journal of Health, Wellness & Society, 1(2), 75-86.

HIPAA Related Confidentiality Issues

Corley, S.O. (2012).  Protection for psychotherapy notes under the HIPAA privacy rule: As private as a hospital gown – Jaffee v. Redmond. Journal of Law-Medicine, 22(2), 489-534.

 

DeLettre, J.L. & Sobell, L.C. (2010) Keeping psychotherapy notes separate from the patient record. Clinical Psychotogy & Psychotherapy, 17(2), 160-163.

 

Fisher, C.B. & Oransky, M. (2008). Informed consent to psychotherapy: Protecting the dignity and respecting the autonomy of patients. Journal of Clinical Psychology, 64(5), 576-588. DOI: 10.1002/jclp.20472.

 

Freeny, M. (2007). Whatever happened to clinical privacy? Annals of the American Psychotherapy Association, 10(2), 13-17.

 

Hecker, L.L. & Edwards, A.B. (2014). The impact of HIPAA and HITECH new standards for confidentiality, security, and documentation for marriage and family therapists. American Journal of Family Therapy, 42(2), 95-113.  DOI: 10.1080/01926187.2013.792711

 

Karasz, H.N., Eiden, A. & Bogan, S. (2013). Text messaging to communicate with public health audiences How the HIPAA security rule affects practice. American Journal of Public Health, 103(4), 617-622.  DOI: 10.2105/10AJPH.2012.300999.