When clients have a history of criminal activity, in many circumstances counselors and therapists are bound to keep that history confidential. ?A cli

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Chapter. 6

Ethics codEs: Confidentiality in Clinical Practice continued American Psychological Association (2010) Psychologists have a primary obligation and take reasonable precautions to protect confiden- tial information obtained through or stored in any medium, recognizing that the extent and limits of confidentiality may be regulated by law or established by institutional rules or professional or scientific relationship. (4.01.) American School Counselor Association (2016) Inform students of the purposes, goals, techniques and rules of procedure under which they may receive counseling. Disclosure includes informed consent and clarification of the limits of confi- dentiality. Informed consent requires competence, voluntariness and knowledge on the part of students to understand the limits of confidentiality and, therefore, can be difficult to obtain from students of certain developmental levels, English-language learners and special-needs popu- lations. If the student is able to give assent/consent before school counselors share confidential information, school counselors attempt to gain the student’s assent/consent. (A.2.b.) Canadian Counselling Association (2007) Counselling relationships and information resulting therefrom are kept confidential. However, there are the following exceptions to confidentiality: • • • when disclosure is required to prevent clear and imminent danger to the client or others; when legal requirements demand that confidential material be revealed; when a child is in need of protection. (B.2.) American Association for Marriage and Family Therapy (2015) Marriage and family therapists disclose to clients and other interested parties at the outset of services the nature of confidentiality and possible limitations of the clients’right to confi- dentiality. Therapists review with clients the circumstances where confidential information may be requested and where disclosure of confidential information may be legally required. Circumstances may necessitate repeated disclosures. (2.1.) National Association of Social Workers (2008) Social workers should protect the confidentiality of all information obtained in the course of professional service, except for compelling professional reasons. The general expectation that social workers will keep information confidential does not apply when disclosure is necessary to prevent serious, foreseeable, and imminent harm to a client or other identifiable person. In all instances, social workers should disclose the least amount of confidential information necessary to achieve the desired purpose; only information that is directly relevant to the purpose for which the disclosure is made should be revealed. (1.07.c.) American Mental Health Counselors Association (2015) Mental health counselors have a primary obligation to safeguard information about individ- uals obtained in the course of practice, teaching, or research. Personal information is commu- nicated to others only with the person’s consent, preferably written, or in those circumstances, as dictated by state laws. Disclosure of counseling information is restricted to what is neces- sary, relevant and verifiable. (Principle 2.) Confidentiality LO2 Confidentiality, privileged communication, and privacy are related concepts, but there are important distinctions among them. Confidentiality, which is rooted in a client’s right to privacy, is at the core of effective therapy; it “is the counselor’s ethical duty to protect private client communication” (Wheeler & Bertram, 2015, p. 104). Mental health professionals have an ethical responsibility, as well as a legal and professional duty, to safeguard clients from unauthorized disclosures of infor- mation given in the therapeutic relationship. Professionals must not disclose this information except when authorized by law or by the client to do so. Hence, there are limitations to the promise of confidentiality. Court decisions have underscored that there are circumstances in which a therapist has a duty to warn and to pro- tect the client or others, even if it means breaking confidentiality. Also, because confidentiality is a client’s right, psychotherapists may legally and ethically reveal a client’s confidences if a client waives this right. Confidentiality belongs to the client, and counselors generally do not find it problematic to release information when the client requests that they do so. Fisher (2008, 2016) has designed a six-step ethical practice model for protect- ing confidentiality rights that places legal mandates in an ethical context. The six steps include the following: Preparation. To inform your clients about the limits of confidentiality, you must understand the limits yourself. This involves doing your legal homework and engaging in personal soul searching regarding your own moral principles. Clarify your ethical position about confidentiality and its limits, and devise an informed consent document that reflects your policies and intentions. Discuss confidentiality and its limits with your clients in clear language, and docu- ment this discussion. Provide clients with an opportunity to address any ques- tions they have about confidentiality at the outset of therapy, and continue to share the limits of confidentiality when necessary. Just as informed consent is an ongoing process, clients must also understand the limits of confidentiality throughout the counseling relationship. Tell clients the truth. Inform your clients about the limits you intend to impose on confidentiality, and obtain your client’s consent to accept these limits as a condition of entering into a professional relationship with you. Explain any roles that might affect confidentiality. Obtain “truly informed consent” before disclosing voluntarily. Make disclosures only if legally unavoidable. Obtain and document your client’s signed consent before disclosing this information. Respond ethically to legal demands for information. Notify your client of a pending legal demand for disclosure without his or her consent. Limit disclosure of confidential information to the extent that is legally possible. Avoid preventable breaches of confidentiality. Avoid making unethical exceptions to the confidentiality rule; establish and maintain policies aimed at protecting confidentiality; monitor your note taking and record keeping practices; avoid dual roles that create conflicts of interest in the courtroom; anticipate legal demands and your response to such requirements; empower clients to act pro- tectively on their own behalf; and do not confuse laws that permit disclosure with laws that require disclosure. Talk about confidentiality. Model ethical behavior and practice; invite a dialogue with clients about confidentiality as needed; teach ethical practices to students and supervisees; and educate attorneys, judges, and consumers. 208 / chapter 6 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202 Copyright 2019 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictionFisher’s (2008) model can assist mental health professionals to frame ethical questions more clearly and to help identify questions to explore in the process of consultation. “In short, psychologists can use this practice model to reclaim their status as experts about the confidentiality ethics of their profession” (p. 12). Privileged Communication Privileged communication is a legal concept that generally bars the disclosure of confidential communications made to a psychotherapist from any judicial pro- ceedings or court of law (Knapp & VandeCreek, 2012). All states have enacted into law some form of psychotherapist–client privilege, but the specifics of this privilege vary from state to state. Clinicians need to understand the privilege laws in the states in which they practice. Some privileged communication statutes pro- tect client–counselor relationships to the fullest extent that the law allows; statutes in other jurisdictions are quite weak (Remley & Herlihy, 2016). When a client– therapist relationship is covered as privileged communication by statute, clinicians may not disclose confidential information. Therapists can refuse to answer ques- tions in court or refuse to produce a client’s records in court. These laws ensure that personal and sensitive client information will be protected from exposure by therapists in legal proceedings. Again, this privilege belongs to the client and is designed for the client’s protection rather than for the protection of the counseling professional. If a cli- ent knowingly and rationally waives this privilege, the professional has no legal grounds for withholding the information. Professionals are obligated to disclose information that is necessary and sufficient when the client requests it, but only the information that is specifically requested and only to the individuals or agencies that are specified by the client. In some circumstances, the therapist can make a clinical decision to withhold all or some information if the client waves his or her privilege. For example, if the therapist believes the client is not mentally compe- tent to make such a decision, the therapist may not abide by the client’s request to waive privilege. Privileged Communication in Group Counseling, Couples and Family Therapy, and Child and Adolescent Therapy The legal concept of privileged communi- cation generally does not apply to group counseling, couples counseling, family therapy, or child and adolescent therapy. However, the therapist is still bound by confidentiality with respect to circumstances not involving a court proceeding. Statements made in the presence of a third party may not be protected in a court proceeding. Members of a counseling group can assume that they could be asked to testify in court concerning certain information revealed in the course of a group session, unless there is a statutory exception. In states where no law exists to cover confidentiality in group therapy, courts may use the ethics codes of the professions regarding confidentiality. If a situation arises, therapists may need to demonstrate the means they used to create safety for the group members. A written group con- tract defining members’ responsibility for maintaining confidentiality of whatever takes place in a group can be used for this purpose. Similarly, couples therapy and family therapy are not subject to privileged communication statutes in many states. In the case of child and adolescent clients, there are restrictions on the confidential character of disclosures in the counsel- ing relationship. No clear judicial trend has emerged for communications that are made in the presence of third persons. Clients have a right to be informed about any limitations on confidentiality in group work, child and adolescent therapy, and couples and family therapy. Ambiguity may exist regarding who the client is and the specific nature of the therapy goals when counseling couples or families. When more than one client is in the consulting room at a time, the confidenti- ality mandate can become complex. Confidentiality and its exceptions must be addressed at the outset of treatment and at any time during treatment when confi- dentiality issues become salient. Furthermore, therapists working with couples or families should clearly communicate their policy about keeping, or not keeping, secrets disclosed by one of the partners or family members in advance of starting counseling (Barnett & Johnson, 2015). Some therapists may choose to provide their clients with this policy in writing to be sure that clients are fully informed. We discuss this topic in more detail in Chapter 11. The Jaffee Case and Privileged Communication The basic principles of priv- ileged communication have been reaffirmed by case law. On June 13, 1996, the United States Supreme Court ruled that communications between licensed psy- chotherapists and their clients in the course of diagnosis or treatment are privi- leged and therefore protected from forced disclosure in cases arising under federal law. The Supreme Court ruling in Jaffee v. Redmond (1996), written by Justice John Paul Stevens, states that “effective psychotherapy depends upon an atmosphere of confidence and trust in which the patient is willing to make frank and complete disclosure of facts, emotions, memories, and fears.” The 7–2 decision in this case represented a victory for mental health organizations because it extended the con- fidentiality privilege. In the Jaffee case, an on-duty police officer, Mary Lu Redmond, shot and killed a suspect while attempting an arrest. The victim’s family sued in federal court, alleging that the victim’s constitutional rights had been violated. The court ordered Karen Beyer, a licensed clinical social worker, to turn over notes she made during counseling sessions with Redmond after the shooting. The social worker refused, asserting that the contents of her conversations with the police officer were protected against involuntary disclosure by psychotherapist–client privi- lege. The court rejected her claim of psychotherapist–client privilege, and the jury awarded the family $545,000. The Court of Appeals for the Seventh Circuit reversed this decision and con- cluded that the trial court had erred by refusing to afford protection to the confi- dential communications between Redmond and Beyer. Jaffee, an administrator of the victim’s estate, appealed this decision to the Supreme Court. The Supreme Court upheld the appellate court’s decision, clarifying for all federal court cases, both civil and criminal, the existence of the privilege. The Court recognized a broadly defined psychotherapist–client privilege and further clarified that this privilege is not subject to the decision of a judge on a case-by- case basis. The Court’s decision to extend federal privilege (which already applied to psychologists and psychiatrists) to licensed social workers leaves the door open for inclusion of other licensed psychotherapists, such as licensed marriage and family therapists, licensed professional counselors, and mental health counselors. In discussing the impact on the law of the Jaffee v. Redmond case, Shuman and Foote (1999) indicate that the case is not constitutionally based. Instead, Jaffee is an interpretation of the Federal Rules of Evidence that apply in actions tried in federal courts. Thus, Jaffee applies only in federal cases, both civil and criminal, governed by the Federal Rules of Evidence. Privacy Privacy, as a matter of law, refers to the constitutional right of individuals to be left alone and to control their personal information (Wheeler & Bertram, 2015). Privacy is the right to be protected from visibility, access, or intrusion by others (Fisher, 2016). Practitioners should exercise caution with regard to the privacy of their clients. It is easy to invade a client’s privacy unintentionally. Examples of some of the most pressing situations in which privacy is an issue include an employer’s access to an applicant’s or an employee’s psychological tests, parents’ access to their child’s school and health records, and a third-party payer’s access to information about a client’s diagnosis and prognosis. If counselors have occasion to meet clients outside of the professional setting, it is essential that they do not violate their privacy. This is especially true in small towns, where such meetings can be expected. In the course of treatment, you may realize that you and the client belong to the same house of worship, that your chil- dren attend the same school, or that your children play on the same soccer team. It is a good practice to let your client know that encounters may occur and to talk with your client about how you might interact when you meet. Consider what you might do in the following case. the case of Erica helena is a counselor in the student services department at a community college. she has been counseling erica for several months for a variety of problems having to do with her body image and eating behaviors. One evening helena and a friend go out to a local cafe for a light meal and a coffee. helena is surprised when the waitress comes up to her cheerily and says hello. she looks up and realizes it is erica. she chats briefly with erica who then takes her order and goes off to serve other customers. helena’s friend then asks who erica is and how she knows her? • • • • if you were the counselor, would you introduce erica to your friend? if so how? if you were the counselor, how would you answer your friend’s question? if erica acknowledged that you were her counselor in front of your friend, how would you respond to her? if erica began to discuss her sessions with you, what would you do? Commentary. these chance meetings are often unavoidable. if helena had ignored erica, not only could this be seen as being rude, but erica might feel offended. it is inappropriate for helena to acknowledge to her friend that erica is her client. if erica began discussing matters pertaining to her counseling sessions, helena should find a way to steer the interaction to a general conversation. helena’s dilemma reminds us that during the informed consent process it is a good idea to discuss how clients would like you to handle chance encounters outside of therapy; this is especially important if you live and practice in a small community or at a college or university campus. • Most professional codes of ethics contain guidelines to safeguard a client’s right to privacy. An example of the privacy standard, designed to minimize intru- sions on privacy, is found in the APA (2010) ethics code: Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to (1) provide needed professional services; (2) obtain appropriate professional consul- tations; (3) protect the client/patient, psychologist, or others from harm; or (4) obtain payment for services from a client/patient, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose. (4.05.b.) Practitioners who also teach courses, offer workshops, write books and journal articles, and give lectures must ensure that client privacy is protected. It is of the utmost importance that practitioners take measures to adequately disguise their clients’ identities when using examples from clinical practice, and it is prudent not to use current clients as examples. Sperry and Pies (2010) discuss the ethical considerations in writing about clients. They identify three options for presenting case material: (1) seek the client’s permission to publish, which some consider eth- ically questionable because it entails inserting the clinician’s professional agenda into the client’s treatment; (2) disguise case material for publication, which may or may not release the therapist from needing to secure the client’s permission; or (3) develop composite case material from two or more clients. Most of the case examples and commentaries we include in this book are fictional cases we have created. In the few actual clinical examples, we have taken care to disguise any identifying details. Students should be advised to adequately disguise identities of their clients in any reports they give in class. Of course, students’ personal comments in class are also to be kept confidential. Confidentiality and Privacy in a School Setting Managing confidentiality is a challenge most school counselors face. School coun- selors need to balance their ethical and legal responsibilities with three groups: the students they serve, the parents or guardians of those students, and the school system. When minors are unable to give informed consent, parents or guardians provide this informed consent, and they may need to be included in the counsel- ing process. Counselors have an ethical obligation to safeguard the confidentiality of minors to the extent that it is possible, but in most states their discussions with students are not privileged communication (Stone & Dahir, 2016). School counselors are ethically obliged to respect the privacy of minor cli- ents and maintain confidentiality, yet this obligation may be in conflict with laws regarding parental rights to be informed about the progress of treatment and to decide what is in the best interests of their children. The ASCA (2016) ethics code states that school counselors “recognize their primary ethical obligation for con- fidentiality is to the student but balance that obligation with an understanding of the parents’/guardians’ legal and inherent rights to be the guiding voice in their children’s lives” (A.2.f.). School counselors have an ethical responsibility to ask for client permission to release information, and they should clearly inform students of the limitations of confidentiality and how and when confidential information may be shared. The ASCA (2016) guideline regarding parents is that the school counselor “informs parents/guardians of the counselor’s role to include the confidential nature of the school counseling relationship between the school counselor and student” (B.1.f.). Although school counselors may be required to provide certain information to parents and school personnel, they need to do so in a manner that will minimize intrusion of the child’s or adolescent’s privacy and in a way that demonstrates respect for the counselee. To the degree possible, school counselors aim to estab- lish collaborative relationships with parents and school personnel. Laws regarding confidentiality in school counseling differ. In some states, therapists in private practice are required to demonstrate that attempts have been made to contact the parents of children who are younger than 16, whereas school counselors are not required to do so. Schools that receive federal funding are gen- erally bound by the provisions of the Family Educational Rights and Privacy Act of 1994 (FERPA). It is necessary that school counselors exercise discretion in the kind and extent of information they reveal to parents or guardians about their children. School personnel and administrators may operate under different guidelines regarding confidentiality, and they may not understand the mental health profes- sions’ requirements. When a school counselor withholds information from school personnel and administrators about students in counseling, especially with regard to risk-taking behaviors, the counselor “may be seen as something other than a team player (i.e., school administrators may view school counselors’ protecting the confidentiality of students as insubordination)” (Moyer, Sullivan, & Growcock, 2012, p. 99). This is a complex area that requires careful thought and consideration, as the following case examples illustrate. the case of serena serena, a school counselor, shifted her career from private practice to counseling in an ele- mentary school. she was particularly surprised by the differences between private practice and school counseling with respect to confidentiality issues. she remarked that she was constantly fielding questions from teachers such as “Whom do you have in that counseling group?” “how is alex doing?” “it’s no wonder this girl has problems. have you met her parents?” although serena talked to the principal and teachers about the importance of maintain- ing a safe, confidential environment for students in counseling situations, she would still receive questions from them about students, some of whom were not in their classes. in addition to the questions from teachers, serena found that she had to deal with inquiries from school secretaries and other staff members, some of whom seemed to know everything that was going on in the school. they would ask her probing questions about students, which she, of course, was not willing to answer. for example, although she would not tell a secretary whom she was counseling, a teacher might have told the secretary that she was seeing one of his students. serena observed that the principal and parents also asked for specific information about the students she was seeing. she learned the importance of talking to everyone about the need to respect privacy. if she had not exercised care, it would have been easy for her to say more than would have been ethical to teachers, staff members, and parents. she also learned how critical it was to talk about matters of confidentiality and privacy in simple language with the schoolchildren she counseled. • if you were asked some of the questions posed to serena, how would you respond? • how would you protect the privacy of the students and at the same time avoid alienating the teachers and staff members? • how would you explain the meaning of confidentiality and privacy to teachers? staff mem- bers? parents? administrators? the children? • Would you consider listening to some school personnel to gather information pertaining to your client(s)? Why or why not? • Might you consider collaborating with school personnel to provide some type of treatment for the client? Why or why not? Commentary. this case illustrates the importance of a school counselor taking the initiative to educate parents, administrators, and staff members about the need to respect privacy and pro- tect confidentiality of minor clients. serena took steps to protect the privacy of the children by educating all concerned about the importance of confidentiality in counseling. a further step serena might take is to offer in-service training for all school staff regarding the importance of confidentiality and the process of counseling. serena might consider inviting a local health care attorney to offer training at her school. because school counselors are part of an educational community, they often consult with parents, teachers, and administrators and may be asked to reveal student confidences. Moyer, sullivan, and growcock (2012) point out that school coun- selors must be able to determine when administrators have the ethical right to gain access to confidential information about students, especially in cases of risk-taking behavior by students. in addition, “the issue is confounding because the administrator on campus is often the school counselor’s direct supervisor” (p. 99). • the case of Jeremy jeremy, a third grade boy in an elementary school, reports to his school counselor that he was with his mother when she stole a dress from a store. jeremy also reports that after he and his mother left the store, she told him that she at times stole food because she couldn’t afford it. jeremy requests that the counselor not say anything to his mother because she has been very depressed about not having a job and he worries about what she might do if she learns that he is talking to a counselor about her. after the session, the counselor initiates a conversation with jeremy’s fourth grade sister, who is a student in the same school, to further explore the allegation of the mother’s stealing. • Was this school counselor behaving inappropriately by initiating a conversation with a client’s sibling to further explore an alleged crime? • as a counselor, do you have a legal obligation in this case? • Would you consider calling jeremy’s mother to schedule a meeting with her? Why or why not? • if the mother’s actions are indicative of financial desperation and a lack of resources, what community referrals or resources might you find to help the family? • Do you have any ethical, legal, or clinical concerns about the counselor acting as a “detective”? • What would you have done if you were counseling jeremy? Commentary. Whether or not the therapist is trying to confirm jeremy’s story or gain addi- tional information, talking to jeremy’s sister is a violation of his confidentiality. if the mother is indeed stealing from stores, she may be arrested, which could be traumatic for the children. however, the school counselor’s primary duty is to address jeremy’s fear and his well-being. the therapist may suggest that jeremy ask his mother to attend a session with him so jeremy has an opportunity to express his fears in a conjoint session. a school counselor may have an ethical and legal responsibility to report a parent for an alleged crime, especially when there is risk of harm to the minor such as dealing drugs from the home, driving drunk with children in the car, or leaving the children alone for long periods of time. however, crimes that do not threaten the safety of a child do not have to be reported. even when such a report is necessary, it is important to simultaneously work to keep the minor client engaged. the role of the counselor is not to be a detective or to investigate details of an alleged crime but to focus on the clinical needs and safety of the minor client. an important clinical issue in this case is to understand the meaning of the mother’s behav- iors. stealing is not an ideal choice, but if jeremy’s mother is doing so to provide for her chil- dren, she needs additional support. One way the therapist could intervene is to locate resources available to help with the family’s financial needs and provide this information to the mother. • A case of Academic dishonesty Miles, a high school counselor, is told by tess, a student, that she and some friends have stolen a chemistry final exam. tess requests that Miles not say a word about it to anyone because she is presently failing chemistry and needs to do well on the final exam to pass the course and graduate from high school. Miles decides not to divulge any information, respecting the student’s request to maintain confidentiality. • What are your thoughts about Miles’s decision? • how might this dilemma for the counselor raise questions concerning the limits to confidentiality? • What interventions can Miles make with tess without breaking confidentiality? can he encourage her to make different choices, and what might those be? • What would you have done if you were the counselor in this situation? • can school policies be included as you explain the limits to confidentiality to students in your role as a school counselor? Why or why not? Commentary. the counselor has no obligation to breach confidentiality because there is no danger to life. if it is school policy that such matters must be reported, this information should be clearly stated in an informed consent document. One clinical issue that could be explored is why this student told simon about the theft. • Ethical and Legal Ramifications of Confidentiality and Privileged Communication Clients in counseling are involved in a deeply personal relationship and have a right to expect that what they discuss will be kept private. The compelling jus- tification for confidentiality is that it is necessary in order to encourage clients to develop the trust needed for full disclosure and for the other work involved in therapy. For example, the school counselor has the task of providing a safe and trusting environment for counseling rela

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