Post on 12-Feb-2016
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CONFIDENTIALITY & PRIVILEGED COMMUNICATION
CONFIDENTIALITY VS. PRIVILEGED COMMUNICATION
Confidentiality: Counselor’s ethical responsibility to the client
There are limits to confidentiallity Privileged Communication: Legal protection
for the client against disclosure of info in court
Privileged Communication is Confidential Converse MAY not be true Jaffee v. Redmond
EXCEPTIONS TO CONFIDENTIALITY
EXCEPTIONS TO CONFIDENTIALITY: Client’s request for release of information Abuse of a minor. Abuse, neglect or exploitation of an adult. Credible Threat of imminent Harm to an
Identifiable Person or Persons. Threat to harm self. Court order
EXCEPTIONS TO CONFIDENTIALITY• Duty to warn: Danger to Self• Duty to Warn: Danger to Others
• Child/Elder Abuse Reporting• Tarasoff vs. California Regents• Morgan decision in Ohio• H.B. 71• H.I.V. and other communicable diseases
EXCEPTIONS TO CONFIDENTIALITYDuty to warn: Danger to Self
Duty to Warn: Danger to Others• Child/Elder Abuse Reporting• Tarasoff vs. California Regents• Morgan decision in Ohio• H.B.71• H.I.V. and other communicable diseases
EXCEPTIONS TO CONFIDENTIALITY
Estates of Morgan, et. al. v. Fairfield Family Counseling Center
July 25, 1991, Matt Morgan shot and killed both of his parents, seriously wounded his sister. Jan. 1990-Matt is removed from his parents’ home
for wanting to fight with his father. March – April 1990 After wandering homeless for
months he is hospitalized in Philadelphia, PA, diagnosed as having Schizopheniform Disorder. Returned to his parents home with prescribed medication Did not present for follow up care at FFCC until July
EXCEPTIONS TO CONFIDENTIALITY: MORGAN
July 1990-Matt is seen for 30 minutes by Dr. Brown, M.D. who noted no sx. of schizophrenia.
August –October 1990- Two 15 minute medication consults with Dr. Brown who is gradually reducing Matt’s medication as he fears “malingering” due to Matt having applied for SSDI.
August 1990 –July 1991 Matt continues to see his psychologist, Dr. Gussett for psychotherapy. M/M Morgan repeatedly express, in letters, their growing alarm regarding Matt’s potential for violence.
Evaluated by his counselor, and another therapist on several occasions. Denied involuntary hospitalization several times as symptoms were insufficient to justify this choice.
July 25, 1991 FFCC Social worker notes “It is apparent that Matt is losing weight and decompensating. FFCC is unable to assist since he refuses medication or psychiatric care”
CONFIDENTIALITY: DUTY TO WARN-MORGAN DECISION Matt’s sister as executor of their
parents’ estate initiated a suit against the psychiatrist and FFCCAlleging negligence as the “proximate
cause” of the parents’ deaths and sister’s injury.
Trial court entered summary judgment in favor of the psychiatrist and FFCC
Ohio Supreme Court ruled that due to the “special relationship” between the psychotherapist and the patient “justifying the imposition of a duty…to protect against and/or control the patient’s violent propensities.”
1999: HB 71 Essentially returned
liability for mental health practitioners to the previous level of “duty to warn”
We have a duty to warn an identifiable victim rather than a duty to protect the general populous
DUTY TO WARN Hospitalize the client on an emergency
basis. Implement a course of tx.
second opinion risk assessment. Communicate with law enforcement and
each potential victim.nature of the threat identity of the client making the threat identity of each potential victim.
Document consideration of each actionchoosing the one least likely to violate the
client’s legal rights.Reasons for rejection of other available actions.
GENERAL EXCEPTIONS TO CONFIDENTIALITY: ACA RECOMMENDATIONS
Consultation with administrative superiors, colleagues or others who share responsibility
With written consent of client Death or disability, with written consent of
representative, or beneficiary Intent to commit a crime. Client brings public charges against the
licensee Abuse/neglect of a minor/elderly or person
with a disabling condition.
EXCEPTIONS TO PRIVILEGECommission of a crime.Urgent need for hospitalizationClient is using mental condition/status as issue in court caseMitigation or other forensic evaluationMandated reporting
CONFIDENTIALITY IS EVERYWHERE…OR SO IT SEEMS
Insurance forms Case notes, client files,
telephone messages Disposal of charts, client
data Referral sources Sound Proofing Consultation Informal discussions
CONFIDENTIAL…..BUT…
WHEN IS A ‘COUNSELOR’ NOT A ‘COUNSELOR’?
The Columbus Dispatch reported details gained from school records.
Information in the story was supplied to the Dispatch by a licensed counselor who worked for the school.
The licensed counselor was “concerned that no one was closely watching (the alleged perpetrator)”.
PENLEY V. WESTBROOK(AVAILABLE ON MY WEBSITE)
Peggy Penley and her husband sought marriage counseling with their pastor, Rev. C.L. “Buddy” Westbrook
They were seen individually and in a group.
In 2000 Penley told Westbrook that she was divorcing her husband. Westbrook recommended an attorney. She resigned her church membership in accordance
with the bylaws Westbrook met with church elders and distributed to
the congregation a letter about her decision. He further noted her relationship with another
man. Church members were asked to “shun” her in
accordance with church discipline.
PENLEY V. WESTBROOK(AVAILABLE ON MY WEBSITE)
Peggy Penley and her husband divorced in 2001 she subsequently married the “other man.”
She sued Westbrook Rev. Westbrook is a licensed counselor
The suit was initially ruled out by a lower court the actions were in keeping with established church
discipline.
Upon appeal, her right to sue was upheld.
PENLEY V. WESTBROOK(AVAILABLE ON MY WEBSITE)
Westbrook’s attorney proposes that his client has First amendment rights as a pastor that override “secular authority” (e.g. counselor laws).
Penley’s attorney holds that the case is about “negligence by a licensed counselor, not about the church.”
http://star-telegram.com May 2, 2006
PENLEY V. WESTBROOK(AVAILABLE ON MY WEBSITE)
June 29, 2007: Texas Supreme court dismisses Penley’s right to sue due to “lack of jurisdiction”
Legalize for us legal geeks
“Even if the pastor's dual roles as the parishioner's secular counselor and her pastor could be distinguished, he could not adhere to the standards of one without violating the requirements of the other. Therefore, the court held that its interference with the pastor's actions through imposition of tort liability would impinge on matters of church governance in violation of the First Amendment.”
Note: yep, Buddy won-after four years and a trip to the state supreme court !
PENLEY V. WESTBROOKWHAT DO YOU THINK? The issues:
In what role was Rev. Westbrook functioning when he engaged in counseling with M/M Penley? (pastor OR counselor)
Do secular authorities have the right to determine ‘internal church matters’ (as stated by Westbrook’s lawyer?)
How might you handle a similar situation with a counseling client? Are you licensed? What difference does that make in terms of
liability, confidentiality?