CONFIDENTIALITYTHE CORNERSTONE OF SAFETY, TRUST, & PRIVACY FOR SURVIVORS

PRIVACY V. CONFIDENTIALITY V. PRIVILEGE

• Privacy: A personal choice: the right to determine whether, when, how, and to whom one's personal information is to be revealed

• Confidentiality: Responsibility to protect someone else's choice about disclosure

• Privilege: Legal rule prohibiting the disclosure of private information against someone's will

THE BASIC RULE: A CLIENT’S INFORMATION IS NOT SHARED OUTSIDE THE ORGANIZATION UNLESS THE CLIENT GIVES THE

AGENCY PERMISSION TO DO SO!

The basic rule reflects three important goals of domestic violence advocacy:

1. Preserve safety strategies that rely on certain information remaining private.

2. Provide the privacy necessary for women to talk freely with advocates and share details that will be essential to planning for safety.

3. Place control of the information in the survivor's hands and demonstrate advocates’ commitment to survivor's autonomy and self-determination.

PRIVACY

• While there are different laws that recognize and protect privacy, the idea of privacy itself is broader and deeper than any individual law.

• A core mission in working with survivors of domestic and sexual violence is to restore power and control over daily life to the survivor. This includes power and control over his or her information.

CONFIDENTIALITY

• Confidentiality has long been a core element of effective domestic and sexual violence community based advocacy.

• Confidentiality is a promise that (1) the advocate will not intentionally disclose information, (2) the advocate will take protective measures to prevent inadvertent or unlawful disclosure of information, (3) the advocate will vigorously challenge any attempts to take the information, and (4) the advocate will alert the owner of the information about attempts to take it.

CONFIDENTIALITY IS KEY TO:

• Safety

• Respect

• Dignity

• Empowerment

• Healing

PRIVILEGE

• Privilege typically means:

•A court cannot force a survivor or her advocate to disclose information shared between the advocate and survivor, and•Neither the advocate nor the survivor can be punished for a refusal to disclose the information.

COLORADO'S PRIVILEGE STATUTE

• Who May Not Testify Without Consent, Colo. Rev. Stat. 13-90-107 (2004)

• There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person shall not be examined as a witness in the following cases:• Absolute Privilege: A victim’s advocate (domestic violence and

sexual assault) shall not be examined as to by testimony or through records without the victim’s consent.

WHO ARE THESE VICTIM ADVOCATES?

(II)Forpurposesofthisparagraph(k),a"victim'sadvocate"meansapersonatabatteredwomen'sshelterorrapecrisisorganizationoracomparablecommunity-basedadvocacyprogramforvictimsofdomesticviolenceorsexualassaultanddoesnotincludeanadvocateemployedbyanylawenforcementagency:

◦ (A)Whoseprimaryfunctionistorenderadvice,counsel,orassistvictimsofdomesticorfamilyviolenceorsexualassault;and

◦ (B)Whohasundergonenotlessthanfifteenhoursoftrainingasavictim'sadvocateor,withrespecttoanadvocatewhoassistsvictimsofsexualassault,notlessthanthirtyhoursoftrainingasasexualassaultvictim'sadvocate;and

◦ (C)Whosupervisesemployeesoftheprogram,administerstheprogram,orworksunderthedirectionofasupervisoroftheprogram.

WHO DOES THE PRIVILEGE BELONG TO?

• THE SURVIVOR!!!

• Think of privilege as a possession.

• Because the survivor holds the privilege, the survivor has the right to waive it or give it up.

• A survivor is allowed to decide that s/he wants the information to be shared in court (or otherwise) and wants the protected professional to share it.

WHOSE JOB IS IT TO PROTECT THE PRIVILEGE?

• Both the advocate & the survivor!!

• Even though the privilege belongs to the survivor, it is the responsibility of both the survivor and the privileged professional to protect it.

• If the survivor gives no instructions at all, the advocate must assume the survivor would not want the information disclosed and must refuse to disclose it because it is privileged (and because the advocate practices confidentiality.)

WHAT KIND OF INFORMATION IS PROTECTED UNDER PRIVILEGE?

• Typically, to be privileged, information must have all three of the following characteristics:

• Confidential

• Communication

• Shared within a special relationship.

WILL A COURT THINK IT IS “CONFIDENTIAL” IF THE SURVIVOR HAS OTHERS PRESENT DURING THE COMMUNICATION?

• IT DEPENDS! The answer to this depends on state law and the purpose of having the other person present.

• YES: Others from the same advocacy program, Interpreters

• PROBABLY NOT: Friends or family of the survivor, survivor’s lawyer, SANE Nurse

VAWA, FVPSA & VOCA

• VAWA Section 3, FVPSA, & VOCA regulations prohibit sharing personally identifying information about victims without informed, written, reasonably time-limited consent.

• VAWA & VOCA also prohibit disclosure of individual information without written consent.

• These confidentiality grant conditions also prohibit programs from making the signing of a release a condition of service.

VAWA, FVPSA & VOCA

• No program can share personally identifying information to comply with Federal, Tribal, or State reporting, evaluation, or data collection requirements.

• These federal laws also permit limited sharing when required by state law or a valid court mandate, and in either circumstance the VAWA/FVPSA/VOCA-funded program must protect the survivor’s information as much as possible.

• VAWA regulations only count duty to warn as a court mandate if case law creates a duty to warn about serious physical injury. Doesn’t exist in CO!!

EXCEPTIONS TO PRIVILEGE/CONFIDENTIALITY

Confidentiality is critical and protected by law!

• Informed consent of the victim: Consent must be informed, written, and reasonably time-limited

• Mandated reporting of suspected or known child abuse or neglect: reporting obligations are specifically limited and defined by law, and include domestic violence and sexual assault advocates. C.R.S. 19-3-304

• Court Order

PROTECTING PRIVACY & CONFIDENTIALITY

• Understand advocate confidentiality, including liability risks if confidentiality is not protected in accordance with the law.

• Ensure your partners understand your ethical/legal obligations.

• Explain confidentiality to survivors & honor survivors’ rights to control their own information.

• Protect personally identifying information about survivors & don’t discuss survivors outside of the organization without a release.

PROTECTING PRIVACY & CONFIDENTIALITY

• Within the agency, share information only on a “need to know basis”

• Before obtaining a release, determine if there is another way to meet the survivor’s needs without revealing her/his confidential information.

• Do not accept a release form from another agency.

• Maintain appropriate record-keeping, retention & destruction practices.

• If you have questions about confidentiality in a particular situation, contact your supervisor.

MANDATORY REPORTING & CONFIDENTIALITY

• Understand the mandatory reporting obligations of those professionals a survivor is likely to encounter

• Develop/follow the written protocol within your agency for mandated reports

• Provide the survivor with as much information as they need to understand mandated reporting obligations

WHAT TO DO

• Determine whether a report is required: EVALUATE whether the facts support a report.

• The advocate has no firsthand concerns for child abuse/neglect and therefore must uphold confidential communications

• The advocate does have firsthand concerns about child abuse/neglect and must make a report

THE REPORT

• The report is limited to:• The name, address, age, sex, and race of the child;

• The name and address of the person responsible for the suspected abuse or neglect;

• The nature and extent of the child’s injuries;

• The names and addresses of the persons responsible for the suspected abuse or neglect, if known;

THE REPORT

• The report is limited to:

• The family composition;

• The source of the report and the name, address, and occupation of the person making the report;

• Any action taken by the reporting source;

• Any other information that the person making the report believes may be helpful…….

PROCESS IF A CHILD WELFARE WORKER CONTACTS AN ADVOCATE

• Neither confirm or deny whether the family is receiving services

• May take workers contact information and state that if the family is receiving services the information will be passed to the family

• If the family is receiving services, advocate meets with the parent to discuss the open assessment and provide information about the process as well as the workers contact information

• Parent may choose to execute a release of information

• CPS may not meet with the parent at the shelter unless a meeting has been arranged in advance with the parent and the ORGANIZATION supervisor.

RESOURCES

• CCADV Staff & Confidentiality Toolkit, which is available to members on CCADV's Online Resource Library

• NNEDV Confidentiality & Safety Net Project materials: http://nnedv.org/resources/safetynetdocs.html

• Confidentiality and Information Sharing Issues at https://www.futureswithoutviolence.org/userfiles/file/Children_and_Families/InfoSharing.pdf

Contact: Amy Miller amiller@ccadv.org

303-962-0933