Confidentiality and its Limits

Confidentiality and its Limits ConfidentialityRooted in a clients right to privacy, confidentiality is at the core of effective therapyIt is the counselors ethical duty to protect private client communication.

Confidentiality is a legal and ethical concern.Client information is not shared without client consent or without ethical or legal justification.

PrivacyRespect for privacy, also means that therapists only solicit information from clients when it is beneficial to therapy (not because a clients story is fascinating, or you want to hear more about a clients past without a clinical purpose). Ask yourself: how is this information going to inform treatment or further goals.

Related TermsPrivileged communication: A legal concept that generally bars the disclosure of confidential communications in a legal proceedingSpecifics of this privilege vary from state to statePrivacy: The constitutional right of individuals to be left alone and to control their personal information

A ct may waive privilage in court and you must oblige, privilage blongs to the ct.Confidential InfoWritten documentation in a chart (record)Therapist personal notes for purpose of self-awareness (countertransference), questions, etc. Verbal communications or info (not just verbal, creative process or behaviors) that is exchanged or that occurs in treatment.Other forms of communication (voicemails, emails, faxes, texts)ET product: art, recordingConfidential & PrivateAll info should be kept private, however particular attention should be paid to:PHI: protected health information.John Smith has a diagnosis of schizophreniaCher is experiencing flashbacks and panic attacks.PII: personally identifiable information or SPI: sensitive personal informationAddress, ss#, name, financial account numbers

HIPAAHealth Insurance Portability and Accountability Act

Promote standardization and efficiency in the health care industry and give patients more rights/control over their health information. HIPAA Privacy Rule developed out of concern that transmission of health care information through electronic means could lead to wide gaps in protection of client confidentiality. If you or agency you work for submits electronic insurance claims then HIPAA applies to you.Even if HIPAA does not apply to you, you should protect privacy including electronic transmission of protected health information (PHI).

RecordsProgress Notes: document the sessions, include cts progress, significant issues pertinent to treatment, therapist interventions and rationale, treatment plan. Part of record or chart. Usual required by law or oversight entity and is a best practice and community standard.Process or Psychotherapy Notes: therapist impressions, transference/countertransference, more detailed or sensitive information on clients feelings or experiences, therapist questions or hunches. Not required, created by and for the therapist. Type of self supervision, processing. Keep separate from chart. Additional protections under privacy laws such as HIPAA, but not always protected from court. Recordswhy have records if they need to be protected?Record keeping/notes serve various purposes and states or licensing boards may have record keeping guidelines. Records document care given so it can be reviewed for quality.Client has information on treatment plan and progress.Protection for the therapist.Way to share information with treatment team and inform future treatment. Art ProductAATA: 4.0 CLIENT ARTWORK Art therapists regard client artwork as a form of protected information and the property of the client. In some practice settings client artwork, or representations of artworks, may be considered a part of the clinical record retained by the therapist and/or agency for a reasonable amount of time consistent with state regulations and sound clinical practice. What about poem, notation of song or dance or drama, recording of a performance?10Protecting Privacy: phone, fax, emailDo 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.

Communicating with careWhen you leave a message on an answering machine, send a fax, email or text, be aware that the intended person may not be the one who retrieves your message.

Protecting PrivacySupervision journals: omitting names and identifying details. Locking up client records.Do not take client charts or paperwork home or off agency property. Use encrypted email.Protect art pieces as if they are client records and private.MGH Case Example2009 MGH employee takes client records home. She forgets and leaves them on the subway on her commute home.Both PII and PHI of 192 patients was unprotected. Information's included diagnosis (including HIV status), names, financial info. MGH settled with the federal government and paid $1 million for violating HIPAA privacy rule. Limits of ConfidentialityWhen clerical assistants handle confidential information When a counselor consultsWhen a counselor is being supervisedWhen a client has given consentWhen a client poses danger to self or others

Consent --get roi. Always release minimum info needed. Limits of ConfidentialityWhen a counselor suspects abuse or neglect of a child or vulnerable adultWhen a court orders counselor to make records availableThis is not the same as subpoena Subpoenas & court orders rare for counselors if you get either get supervision and consult an attorney. If ct waives privilage you must release. Therapist has no privilage not your infoLimit of ConfidentialityDuty to ProtectEthical challenge: balancing client confidentiality and protecting the public.Protecting privacy is the right thing to do as is protecting others from harm is the right thing to do. 17Duty to Protect Potential VictimsConfidentiality may be breached for the purpose of protecting others from serious foreseeable harm.

Examples:When a client has intent to suicideWhen a client threatens serious harm to an identifiable individual or groupWhen a therapist suspects abuse or neglect of a protected population (children, disabled, elderly).

Legal Precedents: Duty to ProtectTarasoff CaseDuty to warn of harm to self or othersDuty to protectBradley CaseDuty not to negligently release a dangerous clientJablonski CaseDuty to commit a dangerous individual

Remember case law interpreted by judge/courts. 19Duty to ProtectMost states have laws that specify if a client discloses a specific threat to do imminent harm to an identifiable target, the counselor has an obligation under the law to warn or protect the target.In this type of situation you must break confidentiality.Laws governing the limits of confidentiality vary state to state but usually include:Warn, Protect, TreatImmunity Example of specific. Not sure get colleague, supervisor, psychiatrist to do assessment. Emergency call crisis, ESP 91120Warn, Protect, TreatWarn the targetInform policeTreat the client, deescalate, coping skills, anger management, assess access to weapons and suggest removal of means, give prn medication. Steps towards commitmentget the psychiatrist. Keep in treatment, do not discharge. Protect yourself (law does not require you to put yourself in harm).Mass General Law: Duty to Warn, Cause of Actionhttps://malegislature.gov/Laws/GeneralLaws/PartI/TitleXVII/Chapter123/Section36B

This is just the statute not case law. Duty to ProtectBecome familiar with the laws of the state where you practice: including case law and statutes. What constitutes an actionable threat.

Resources to help with this: Mental Health Law Bulletins, state licensing boards, liability insurance company, attorneys, employer policies.Perform thorough risk assessments, gather history, document your efforts and the rationale for your actions. There are no rules/laws that will totally protect a potential victim or remove therapist liability. Work within the standards of care. Its a lot to know & learn thats why you work under a supervisor even post grad. DO NOT WORRY ALONE23FAQReports of past violence do not need to be reported under Duty to Warn (but should if they fall under mandated reporting).If someone reports past violence you should monitor and assess for future violence. You are not expected to prevent or predict all potential violence to self or others. Violence and suicide may still occur. Expectation is that you follow best practices, took action, can substantiate your decisions (decision making model steps) and are able to demonstrate that (documentation). Limits of Confidentiality: Imminent risk of harm to selfBe educated on risk assessment, suicide prevention.Protect and treat in this situation also.Inform guardian if a minor has intent to seriously harm him or herself or is at risk for suicide. No statutes to follow, case law, malpractice risk.Document assessment, interventions, decision making process, and rationale for choices.

No statutes but there is case law and malpractice suits. Document interventions, decision making process and rationale for choices. Mandated ReportingWhen there is suspected abuse or neglect to a protected group: minors, elderly, disabled adults, counselor must break confidentiality and report the suspected abuse. Remember to include mandated reporting and limits of confidentiality as part of informed consent.

Mandated ReportingYou cannot be sued or legally punished for a good faith report.You cannot be fired or disciplined by employer for reporting.

4 protected categories in Massachusetts:Elderly persons, disabled, patients in a DPH licensed facility, children

Clearly frivolous report ---could get a fine.27Mandated ReportingElderlyM.G.L. c19a s 14 and 15 https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter19A/Section15Elderly: anyone age 60 and up.Report suspected physical or emotional abuse, and financial exploitation by caretaker.Dept of Elder Affairs: 800-922-2275 http://www.mass.gov/elders/service-orgs-advocates/protective-services-program.html

Mandated Reporting: DisabledM.G.L. c19c sections 1, 10, and 11 https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter19CDisabled: Anyone age 18-59 with ID or other mental or physical disability resulting in whole or partial dependence on others to meet daily living needs. Must report abuse and non consensual sexual activity.Disabled Persons Commission 800-426-9009 http://www.mass.gov/dppc/

Mandated Reporting: DPH patientsM.G.L. c.111 sections 72F and 72G https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXVI/Chapter111/Section72GDPH Patient or Resident: patient of a DPH program such as home health aid agency or hospice services in the home or a resident or patient in a DPH facility such as nursing home, rest homes, hospitals. Must report abuse, neglect, mistreatment, misappropriation of property.Dept of Public Health 800-462-5540 http://www.mass.gov/eohhs/provider/reporting-to-state/abuse-neglect/health-care-facilities/reporting-abuse-and-neglect-poster.html

Mandated Reporting: ChildrenM.G.L c119 section 51a https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXVII/Chapter119/Section51AChild: any person under age 18.Must report physical abuse, sexual abuse, neglect, physical dependence upon an addictive drug at birth, sexual exploitation, human trafficking victim (see ch 233, sec 20M).Dept of Children & Families 800-792-5200 http://www.mass.gov/eohhs/gov/departments/dcf/child-abuse-neglect/

DCF website has other resources 31Mandated ReportingYou do not have to be a mandated reporter to make a report.Most of the mandated reporting laws specify that a mandated reporter is expected to report when in their professional capacity they have reason to suspect abuse. Meaning, in Massachusetts, you are only a reporter when at work or in a professional role, howeverCommunity standards, code of ethics, personal values, and risk management (someone could try to sue you alleging you were in a professional role) may guide one to report even when not in professional capacity. In professional capacity--law=minimal expectation, some states you are required. In mass report outside of job can be annymous. Mandated ReportingThere are clinical implications to reporting and/or breaking confidentiality. These should not prevent reporting but may guide how you go about the process.Example: you and the parent call DCF to report abuse. Help the parent to own their actions and seek help.Example: a child tells you they cut in secret. Call mom together and encourage the child to talk about their self harming. Confidentiality and FamiliesWhen does a parent have the right to the childs record / privileged communication?

Make sure you know who is the legal guardian vs who is a care giver.

In most situations legal guardians have the right to consent to treatment for minor children and they have the right to access records and privileged communication. Parents have legal rights and responsibilities to protect their children and make decision on the childs behalf.

34Confidentiality & FamiliesCourt guideline is usually: will allowing the parent to assert or waive the counselor-client privilege on behalf of their child be in the best interest of the child?If it is therapy interfering-they can not access the infoIf there is no risk that disclosure would harm the child, then parent can access.

Define risk having to rebuild trust not to risky.

35Children and FamiliesWho is the client:The child?The parents?The family?Consider ethical responsibilities to everyone involved. Informed consent up front. Get assent to share. Culture: autonomy vs collectivism. Theoretical orientation: system theory.

School RecordsIn Massachusetts legal guardian and/or custodial parent can access school records. In some situations non custodial parents can also access records.

603 Code of Massachusetts Regulations (CMR 603)Massachusetts General Law, Chapter 71. (GL c 71)School Counselinghttp://schoolcounselor.org/asca/media/asca/home/EthicalStandards2010.pdfCode of Ethics for School Counselors/ American School Counselor Association

Group Therapy & Limits of ConfidentialitySet up group ground rules up front.Client-therapist privilege does not exist in most group situations: since the client is knowingly sharing in front of multiple people. Ethical guideline still exists that therapists protect private info as much as possible and when a disclosure is warranted only necessary info is relayed.Assoc of Group Work Code of Ethics http://www.asgw.org/PDF/Best_Practices.pdf