Ethics: Confidentiality and Privacy

Client Rights

These rights include multicultural/diversity considerations, respect for privacy,

respect for confidentiality, and explanation of limitations. Privacy is absolutely
essential to any counseling relationship. During the informed consent process the
counselor should gather information about the client’s needs and background and
use this information to create trust for the client.

Potential Issues:

- Assuming all clients have the same perspective of privacy

- Violating confidentiality without consent
- Losing focus of the client’s main goals
- Failing to explain limits to confidentiality
- Forgetting that even information gained from a prospective client is confidential

Recommendations and Resolutions:

- Actively respect and protect all client’s rights to privacy

- Confidentiality is an ethical and legal obligation
- Avoid questions that have no relevance to goals
- Explore cultural meanings for the client
- Develop strict policies for confidentiality
- Discuss the limitations of confidentiality
- Confidentiality belongs to the client

Some exceptions to confidentiality include serious and foreseeable harm and legal
requirements, such as when a client is suicidal or poses a threat to others.
Counselors must be familiar with ethics and laws regarding duty to protect.

Potential Issues:

- Lacking familiarity with state and federal laws

- Failing to regularly assess and keep track of threat levels
- Lacking experience in conducting risk assessment

Recommendations and Resolutions:

 Ethics: Confidentiality and Privacy
- Accept the obligation to intervene in times of threat
- Sometimes protecting the client involves a breach in confidentiality
- Know jurisdiction and legal requirements
- Clearly inform client of limits to confidentiality
- Seek advice when deciding whether or not to violate confidentiality
- Review state and federal laws regarding hastening a client’s death

Confidentiality Related to End-of-Life Decisions

Different jurisdictions have different laws regarding the breach of confidentiality

for end of life decisions. It is a counselor’s job to keep their own emotions out of
the picture. The counselor should work collaboratively and empathetically with the
client.

Potential Problems:

- Strong personal feelings may cause the counselor to impose values on the client

- Lack of familiarity with state laws

Recommendations and Resolutions:

- Remain alert to the client considering hastening end of life

- Know relevant laws

- Seek advice from other professionals

- Monitor personal reactions

- Continuously have informed consent discussions

 Ethics: Confidentiality and Privacy
Communicable Diseases

If a client discloses a known communicable disease the counselor may be allowed

to disclose the information to others at risk of infection. However, the counselor
must be familiar with state law on this topic.
Potential Problems:

- Ignoring state laws

- Disclosing the disease without encouraging the client to do so first
- Failure to discuss issues openly with the informed consent process

Recommendations and Resolutions:

- Take the disclosure seriously

- Get a confirmation of the medical status
- Explore state laws about limits of confidentiality
- Do not allow personal values to affect decisions
- Encourage the client to warn effected third parties
- Seek expert consultation before making a disclosure
- Double check and evaluate standards
 Ethics: Confidentiality and Privacy
Responding to Subpoenas

Subpoenas are legal documents from lawyers that may ask for client information.
Court orders come from a judge; both require a careful and thoughtful response and
must be taken seriously. You must respond, even if you do not end up complying.
You should seek consultation and make an informed decision about the validity of
the document. In the event of a subpoena, inform the client, get written consent
from the client, and only disclose the minimum amount of information required.
Potential Problems:

- Counselor is not thoroughly familiar with relevant laws

- Refusing to comply with lawful court orders
- Failing to carefully screen subpoenas

Recommendations and Resolutions:

- Get consultation from experienced colleagues before answering a subpoena

- Consult with an attorney to determine validity
- Contact the client before responding to a subpoena
- Attempt to get informed consent from the client
- Have the client help craft the response to the subpoena
- Periodically review state and federals laws about court disclosures
- Limit the extent of disclosure as much as possible
 Ethics: Confidentiality and Privacy
Behavior of Subordinates

Training and oversight over subordinates is key to ensuring confidentiality.

Counselors are responsible for the behavior of employees, those they supervise,
students, office staff, and volunteers.
Potential Problems:

- Being too busy to supervise subordinates

- Assuming subordinates understand privacy
- Failing to provide adequate training

Recommendations and Resolutions:

- Carefully train and oversee subordinates

- Never make assumptions about knowledge
- Carefully monitor office procedures
- Review policies and provide training
 Ethics: Confidentiality and Privacy
Interdisciplinary Teams

The client must be informed about the participation of teams and the information
being shared with the team. Clients can benefit greatly from a team treatment
approach, but the counselor must be clear about confidentiality and disclosure, both
to the client and the team.

Potential Problems:

- Overlooking the threat to client confidentiality when the client is unaware of who
has access to information
- Assuming the client endorses a team approach

Recommendations and Resolutions:

- Provide clear and updated information regarding team approaches

- Inform clients about team arrangements
- Attempt collaboration with the client by discussing the team approach
 Ethics: Confidentiality and Privacy
Confidential Environments

It is important to ensure that the setting for discussions is safe for private
information; be careful discussing private information in public.

Potential Problems:

- Tempting to share interesting case material

- Failure to think carefully about context

Recommendations and Resolutions:

- Discuss with clients the need to avoid discussing matters in public places
- Be aware of the setting when discussing private information
- Do not discuss case information with colleague/consultant if privacy is at risk
 Ethics: Confidentiality and Privacy
Third-Party Payers Disclosing Information to Third-Party Payers

When clients are using health insurance benefits, confidentiality issues can get
complicated. Counselors must receive client consent to disclose confidential
information to third party payers and must be careful about how that information
is transmitted.

Potential Problems:

- Assuming that the client consent to release of information to insurance

- Being unfamiliar with laws about third-party disclosures
- Transmitting through electronic technology
- Attempts to use new form of technology

Recommendations and Resolutions:

- Get written client consent before disclosing information to third parties

- Only give minimum information needed to third parties
- Study the Health Insurance Portability and Accountability Act of 1996 (HIPAA)
- Make sure that client information submitted electronically is safe
 Ethics: Confidentiality and Privacy
Deceased Clients

Counselors protected the confidentiality of deceased clients. Sometimes a counselor

may be required by law to disclose information on the deceased, so a counselor
must be aware of statutes. With an ethical situation dealing with a deceased client,
if the family requests a release of notes, always wait until probate has been
completed. Probate is the legal process in which the deceased person’s will is
reviewed to determine its validity.

Potential Problems:

- Counselors overlook confidentiality of the deceased

- Refusing to provide information to a legal caretaker
- Releasing confidential information without written documentation from the
deceased
- Emotional affectation may impair judgment

Recommendations and Resolutions:

- Remember obligation to protect all client confidentiality

- Become familiar with legal requirements
- When a client is terminally ill, get all necessary consents in writing
 Ethics: Confidentiality and Privacy
Group and Family Therapy Confidentiality

Counselors need to be explicit about informed consent in group settings. A

counselor cannot fully guarantee confidentiality when more than one client is
involved, but they can provide documentation and rights.

Potential Problems:

- Neglecting to properly inform clients that others in the group might violate
confidentiality
- Increased risk associated with multiple roles in group work
- Failing to establish separate records for each member of the group

Recommendations and Resolutions:

- Clearly inform each client in the group of the limits of confidentiality

- Communicate the need for confidentiality to all members
- Inform clients about the limits of your ability to ensure confidentiality
- Establish clear guidelines for sharing between clients
- Make sure that separate records are kept for each clients
- Only provide parts of records that are pertinent to each client upon request
- Communicate your policies
 Ethics: Confidentiality and Privacy
Clients Lacking the Capacity to Give Informed Consent

Counselors working with minors or adults who cannot give informed consent have
to be very careful about laws of confidentiality. Counselors clearly communicate
roles for everyone involved, including the client and the guardians.

Potential Problems:

- Trying to safeguard confidentiality, counselors may fail to communicate with

guardians
- Being less vigilant to protect the confidentiality of a dependent
- Unfamiliarity with laws governing dependent confidentiality
- Being too quick to provide information to guardians

Recommendations and Resolutions:

- Be careful to communicate roles and rights

- Be familiar with state and federal laws
- When pushed by a guardian, explore legal responsibilities
- Consider the influence of culture on the perception of children's rights
- Always provide informed consent
 Ethics: Confidentiality and Privacy
Keeping Records and Documentation Confidential

Creating and maintaining confidential records is essential for appropriate client

care. Counselors should keep the records accurate, up to date, and ensure
confidentiality at all times.

Potential Problems:

- Failing to leave adequate time to create adequate records

- Becoming complacent about security
- Failing to develop technology competencies
- Leaving client records out in the open
- Failing to train staff

Recommendations and Resolutions:

- Create a record of every client encounter

- Make sure each record is clear and thorough
- Make each record properly detailed
- Review state and federal laws, including HIPAA
- Establish policies about record maintenance and safeguarding
- Keep all records stored securely
- Avoid taking records out of the office
 Ethics: Confidentiality and Privacy
Recordings and Observations

Counselors must have the client's permission in order to make any kind of
recording of sessions or allow other professionals to observe sessions. Such
observations and recordings must only be done in the client’s best interest.

Potential Problems:

- Assuming that written permission is not needed because it benefits the client
- Overlooking the requirement to obtain permission when working under
supervision

Recommendations and Resolutions:

- If recording is part of standard practice, ensure written permission from the client
- Never make a recording without explicit permission
- Always remain sensitive to client reactions
- Even working in training, a counselor must remember to obtain permission for all
recordings and observations
 Ethics: Confidentiality and Privacy
Client Access to Records

Clients have the right to access their records; a counselor may restrict access if it
would be harmful, but he/or she must give the rationale to the client. Any release of
records to an appropriate third party must come with the client’s written consent.

Potential Problems:

- Overly authoritarian counselors might refuse to make client records available

- Automatically providing the entire record could unintentionally harm the client
- Disclosing a record at the client’s request without receiving written consent

Recommendations and Resolutions:

- Discuss access to records during informed consent

- Provide access to records in a timely fashion in a private setting
- Know the laws about client access to records
- If a client gives permission to release records, make sure they understand
confidentiality
- Before releasing any records, have written consent
 Ethics: Confidentiality and Privacy
Storage and Disposal of Records

State and federal laws state how long records must be kept after a counselor finishes
services with a client. When that timeframe is over, records must be destroyed
properly.

Potential Problems:

- Lack of awareness of relevant laws about the minimum time for keeping records
- Failing to track the time elapsed after end of service
- Failure to consider possible future needs of a client

Recommendations and Resolutions:

- Abide by laws for record storage

- Periodically review stored records
- Only dispose of records in a way that protects confidentiality
- Remember that records can include paper and electronic
- Consider the possibility of future needs for records
 Ethics: Confidentiality and Privacy
Planning for Counselor's Retirement, Incapacity, or Death

It is responsible to plan for the future, including the counselor’s incapacity, illness,
or death. Every counselor will retire at some point and records should be
maintained and safely preserved.

Potential Problems:

- Denying the fact of your own mortality

- Disengaged counselors failing to make collegial connections
- Feeling that termination of practice absolves the counselor of responsibility

Recommendations and Resolutions:

- Take time early in your career to have a back-up plan

- A plan may include a professional will and should designate care to a colleague
- Keep the will up to date and copies available
- As much as possible, plan for incapacities well in advance
 Ethics: Confidentiality and Privacy
Confidentiality Related to Consultation

Respect for privacy and disclosure of confidential information must be carefully

guarded during case consultations. Consultations are important to client care, but
it is essential that counselors are vigilant about confidentiality and have a clear
definition of roles in the consultation process.

Potential Problems:

- Easy to forget about confidentiality responsibilities in a professional consultation

- Failing to clarify roles, policies, and expectations
- Inadvertently sharing information that violates privacy

Recommendations and Resolutions:

- Seek consultation when it helps promote the quality of client care

- Clearly articulate roles from all participants
- Avoid providing information to the consultant that identifies the client
- Only disclose information pertinent to the issue under consultation
 Ethics: Confidentiality and Privacy
Exceptions to Confidentiality

Counselors do have relevant jurisdiction to release confidential information;

counselors are responsible for knowing applicable laws. These exceptions to
confidentiality must be included in the informed consent process.

Limits to Confidentiality When Counseling Minors:

Confidentiality must be discussed with minors as part of informed consent. Both the
counselor and minor client need to understand guardian rights to confidential
information. This may pose a problem to the counseling process for older minors
and an agreement must be reached with all parties that allows the client to be
comfortable in counseling.

Reporting Requirements with Minors:

Counselors are required to report to authorities if there is suspicion of abuse or

neglect. Be familiar with the signs of abuse or neglect and know the relevant laws.

Reporting Requirements with Elderly or Other Vulnerable Adults:

Some adult clients rely on others for their care. You must be aware of laws applying
to reporting and confidentiality in these cases.

Danger and the Duty to Warn and Protect:

Confidentiality can be limited to protect the client or others from harm. The
counselor has the obligation to report threats to others. The reporting laws only
apply to threat about future violence; stories about past violence cannot be reported.
There can be an option to respond to a threat with appropriate counseling
intervention, but be aware when it is likely that the client will act on threats. You
should be aware of the warning signs of violence and assess the danger to others.

Third-Party Requests for Services:

When third-party requests are made for counseling it is important to clarify to all
parties who the “client” is during the informed consent process.
 Ethics: Confidentiality and Privacy
Court-Ordered Services:

These services also alter confidentiality. If a court orders an evaluation or treatment

of the individual the court is the client, not the individual. It is important to
clarify this with the individual during the informed consent process.