For each section of the chapter, we explore issues and challenges that case managers are likely to encounter. Focus your reading and study on the following objectives:

Confidentiality

· List reasons why the issue of confidentiality is so difficult.

· Define ways in which managed care and technology have affected confidentiality.

· Describe guidelines for discussing confidentiality with clients.

· Identify guidelines for confidentiality and working with minors.

· Describe guidelines for confidentiality and working with interpreters.

· Identify the ways that technology affects client confidentiality.

Family Disagreements

· Describe what happens when family members disagree about the care of a family member.

· List guidelines to follow to encourage positive participation by families.

Working with Potentially Violent Clients

· Describe why violence is becoming more prevalent in modern society.

· Apply the steps in addressing issues of violence in the workplace to a specific case management situation.

Working in the Managed Care Environment

· Identify two difficult dilemmas case managers encounter working with managed care organizations.

· List three ways that case managers might respond to these situations.

Duty to Warn

· Define the duty to warn.

· Demonstrate how the case manager works with a team on issues involving the duty to warn.

Autonomy

· Describe the difficulties that arise with regard to granting client preferences.

· Explain how guidelines can help a case manager who faces issues of autonomy.

· Describe how case managers can support autonomous end-of-life decisions.

· List the sources of rules and regulations.

· Determine when and how to advocate rather than break a rule.

Legal Responsibilities

· Define standards of care and standards of case management practice.

· Explain the term malpractice.

· Describe case management issues of liability.

4-1 Introduction

Before we discuss each of these issues in more detail, let us read what case managers have to say about their work related to ethical and legal issues.

Most of our clients do not want us to share their information with anyone else. For kids, adults, especially adolescents, it is the first question they ask. “You won’t tell my parents, will you?” There are some things we can keep confidential, but there is lots of information we need to share or report.

—Case manager and counselor, family services, Bronx, NY

What is most difficult for me is giving the client room to make mistakes or to refuse service. I see all of the ways a client’s life could improve “if only.” But if the client doesn’t want to help herself, then we are powerless. Every once in a while I want to push the client harder than I should.

—Case manager, intensive case management, Los Angeles, CA

There are some things that my clients need—services, help—that I am not supposed to do or provide. One day I was visiting a young boy and his mother. He was absent from school. His mother had been beating him before I arrived and she opened the door with a strap in her hand. I told his mom I needed to take him to school. Legally, I am not supposed to transport clients.

—Case manager, school-based intervention services, New York, NY

—Case manager and counselor, family services and addiction treatment, Knoxville, TN

These quotations reflect some of the tensions that case managers face. The case manager at family services describes the conflicts that arise related to confidentiality. Sometimes client confidentiality can be maintained. But there are other times that the case manager must break confidentiality, especially when suspicion of harm to self or others is involved.

The case manager from an intensive case management experience speaks of a different type of dilemma involving the mandate to grant clients autonomy whenever possible. Case managers may see clients choosing alternatives that are not in their best interests. Sometimes it is very difficult to let clients make these choices. The case manager from school-based intervention services talks about the difficulties involved in providing services according to legal or ethical guidelines. Clients often violate rules just so they can maintain their stability and have their needs met. Sometimes professionals violate or think about violating policies. Professionals always have to assess what they think and how they will behave in these situations.

Working with families is often integrated into the case management process. Sometimes families can enrich and support the helping process; sometimes they can cause difficulties. The case manager from family services and addiction treatment describes one of the times when family pressure threatened implementation of the case management plan and how the agency uses client participation in groups to help clients expand beyond the family’s influence.

We now explore various ethical and legal dimensions of case management work. We begin by considering the obligations that case managers have to maintain the confidentiality of their clients.

4-1aConfidentiality

4. The case manager must testify in court regarding information about the client, unless the case manager is protected by the state. This legal privilege of communication is usually reserved for patient–therapist communication.

5. The case manager must ask for the client’s permission to release information.

Figure 4.1Considerations for Confidentiality

There are exceptions to a case manager’s maintaining confidentiality, such as when the case manager is entering data into an electronic system, talking with colleagues either during staffing or consultation, or working under supervision. If case managers intend to share client information in any of these settings or during the course of performing job responsibilities, then they should let clients know.

Another consideration for the case manager is collecting information under the guidelines of the Health Insurance Portability and Accountability Act of 1996 (HIPPA) (Department of Health and Human Services, 2015; Remley & Herlihy, 2015). The purpose of this legislation is to protect the confidentiality of client health records by allowing patients access to their medical records, requiring health professionals to explain how they will use patient information on health records, limiting the personal information a health professional may share with others, and allowing patients to request confidential communications. The act went into effect in April 2003. Compliance with this act may be integrated into the standard practice of case management. For example, if the case manager is seeing a client for the first time, then the case manager may explain the HIPPA regulations to the client. Each client must sign a statement indicating that he or she understands how HIPPA regulations are followed in that agency or organization.

The Family Educational Rights and Privacy Act (FERPA) protects the educational records of children (U.S. Department of Education, 2015). This act allows parents and children to view their educational records, to request copies, and to amend these records. It also requires the school to gain permission from parents to release the records. Schools may provide records without parental consent in connection with specific circumstances such as school audits, accreditation, health and safety issues, and, if allowed by the state, use by the juvenile justice system.

Having sensitive information about clients often causes dilemmas for case managers. To avoid problems, some decide to limit what information they seek to gather about a client, because the less information case managers have, the fewer confidentiality problems they will encounter. Certainly, case managers must carefully choose what information to seek, but strict limits on information gathering are not always recommended. A complete history of the client enables the case manager to develop a treatment plan that will meet the needs of that client. Relevant information must be gathered, which helps the case manager understand how to work with family members and friends. Because the case manager is also coordinating care and monitoring progress, abundant information helps him or her give better guidance to other professionals on the team.

The case manager should address certain matters before collecting any information to anticipate any confidentiality problems.

1. What does the case manager need to know to do the job, and why?

2. What should become part of the permanent record?

3. What understanding should exist between the case manager and client about why the information is being sought, how it will be used, and the client’s right to refuse to answer?

4. Under what circumstances should information be shared with third parties?

Sometimes the case manager needs information about the client from other agencies or institutions. It is important for the case manager to obtain written consent from the client to receive this information. The client may also have to provide a written consent to release the information to the agency or institution holding the information. To obtain client consent, the case manager discusses the need for the information with the client and helps the client with the appropriate paperwork. At this time, it is appropriate for the case manager to talk with the client about security of records, including those acquired from another agency.

Another dilemma is how much information to put in the permanent record. The case manager must record all information that documents the work with the client and describes his or her history. Not everything the client reveals needs to be recorded. At times clients talk about issues unrelated to the presenting problem. Unfortunately, the confidentiality of written information is not always secure, regardless of whether the record is on paper or computerized.

Once the case manager has decided what information to gather and what to record, he or she explains why each piece of information is important. Then, he or she decides what parts of the information will be shared with family, friends, and other professionals; this is discussed with the client. However, professionals and family members are bound to ask questions beyond what the client and case manager have agreed on. The client and the case manager negotiate about each such piece of information, and the client must give permission for disclosure. He or she also has a right to refuse to answer any question; if the information is necessary for determining eligibility, then the case manager explains this. He or she can ask the client whether there is another way to obtain the necessary information.

Even with these guidelines articulated, dilemmas concerning confidentiality often arise. Consider the following situations.

An 18-year-old has just found out that she is pregnant. There is no legal obligation to inform the parents of the young woman or the father of the child, but the care coordinator always encourages clients to disclose this information. This young woman refuses. The discussion is closed and the matter remains confidential, even though the young woman’s mother requests the information.

Take a minute and consider this first situation. Can you describe the ethical dilemma in this case? Describe the various points of view held by each individual. What are your thoughts about how the situation was resolved?

An elderly man is furious with his social services coordinator because she told his daughter that he was dying of pancreatic cancer. The service provider knew that the daughter’s husband had just asked for a divorce. The daughter was devastated because she had been counting on the father’s support.

Take a minute and consider this second situation. Can you describe the ethical dilemma in this case? Describe the various points of view held by each individual. What are your thoughts about how the situation was resolved?

A counselor has been asked by his minister for information about a client who is a member of their congregation.

Even following the guidelines presented, the case manager is bound to face issues that warrant further consideration. Three examples are the short cases presented previously. Let us consider how these situations might be resolved. In the first case, the care coordinator gathers confidential information about the 18-year-old’s pregnancy. The information remains confidential unless the agency has a policy mandating disclosure to parents or to the father of the child. If this is so, then the coordinator should have informed the young woman at the time of intake. The care coordinator’s obligation to inform supersedes the confidentiality guarantee. Such a policy is less likely to apply here because the young woman is of legal age. The situation becomes complicated if the young woman’s mental competence is in question or if her health or that of the fetus is threatened in any way. If there is no legal or policy mandate, then the coordinator must not inform the mother of the young woman’s pregnancy, even though she is the potential grandmother.

In the second situation, the social services coordinator is torn between her allegiance to the dying father and her responsibility to his daughter. The difficulty here hinges on the coordinator’s definition of who the client is. She has chosen to behave counter to the wishes of the father by breaking confidentiality with regard to his physical condition. Before doing so, she should ask herself the following questions: Is the father competent to request that his daughter not be told? Did he give the coordinator other information indicating that the daughter should be told, despite of his reaction after the fact? Does she believe that it is in the father’s best interest for the daughter to have this information? Does the coordinator see the daughter as the primary client? If so, why? The coordinator should not violate the father’s request for confidentiality unless the answers to these questions provide sufficient justification.

In the third case, the counselor is asked for information by a professional who is not involved with the client’s case, at least within the established service delivery system. The counselor is under no obligation to give the information unless there is an established need to know and the counselor gains the client’s consent to share the information. It would be a different matter if the counselor had reason to believe that the client might harm himself or others. There would then arise a duty to warn, changing the counselor’s obligation from confidentiality to a duty to share information. Before discussing the duty to warn in more detail, let us look at the client confidentiality issues that have developed in the past decade relative to technology.

Confidentiality and Working with Minors

For the case manager, confidentiality while working with minors includes many issues and challenges. First, in most situations, it is the parents who consent to a minors’ treatment. Except in special circumstances, minors may not consent to their treatment, although they provide assent. There are some legal exceptions that allow minors to consent to treatment linked to indications of a minor’s maturity and ability to make his or her own decisions. For instance, this might occur when the minor has been in the armed services or otherwise demonstrated an ability to care for one’s self (Behnke & Warner, 2002). There have been recent court rulings that grant a minor’s right to confidentiality, especially when mental health services are concerned. In Daniel versus Daniel O. H., the court ruled that confidentiality was not always mandatory, especially if the professional believed that sharing information with parents could be harmful to the minor. The jeopardy could be either placing the minor at odds with parents or damaging the helping relationship (Younggren & Harris, 2008). In addition, many states, such as Ohio and California, allow minors to participate in mental health treatment (for help with previous sexual abuse or substance abuse issues) on an outpatient basis (Levy & Siquiera, 2014).

In practice, confidentiality between parents and minors presents opportunities for dialogue at the beginning of the case management process. We encourage case managers to articulate the importance of confidentiality in treatment, with an emphasis on the times when confidentiality must be broken such as expression of the desire to harm self or others or disclosure of past or current physical, psychological, or sexual abuse. Confidentiality may be breached if the client (minor in this case) consents or if the information is court-ordered. Legal and ethical guidelines related to confidentiality and minors are important to note. These guidelines include considering the age of the child, the developmental age and competency of the child, and, of course, the best interest of the child (Mitchell, Disque, & Robertson, 2002). We present the following case in which the case manager struggles with decisions about confidentiality and the child with whom she works.

Ms. Roe conducts intake and assessment and coordinates treatment at a local hospital emergency department. She is working in the evening shift, 7  pm to 7  am. A social worker is also on-call this evening. Rose is 14. She arrives at the emergency department with her parents. She has cuts all over her arms. Her parents just saw the cuts tonight when her mother came into the bathroom while she was taking a shower. Her parents, shocked to see the open wounds, made her get dressed and drove her to the emergency department. Hospital staff placed Rose in a small room with her parents. Ms. Roe entered the room, introduced herself, and asked to talk with the parents outside the small room. Then, she asked the parents to remain in the room. She indicated to them that she wanted to talk with Rose alone.

Ms. Roe told Rose about her role in the hospital and explained the limits of confidentiality. Ms. Roe indicated to Rose that if Rose discussed hurting herself or others, then she and Rose would discuss what to tell her parents and who should deliver the information to them. Ms. Roe was clear with Rose that she would be assessing Rose’s potential to harm herself or others as well as any neglect or abuse by parents or others. Ms. Roe also emphasized the partnership she hoped to have with Rose to help find her the services that she needed.

During the intake and assessment, Rose shared her cutting activities with Ms. Roe. According to Rose, she first participated in cutting during what her friends call a “cutting group.” They cut in school and after school. Their favorite places were the school bathroom and some woods behind the school. She felt such relief at the cutting that she started cutting at home, too. Because it was less messy and she loved feeling water rushing over her while she was cutting, the shower became her favorite place to cut. Later in the interview, she disclosed smoking marijuana dur