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Ethics ch5
Confidentiality & Privileged Communications

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  • it derive from societal belief that individuals have a right to privacy
  • is primarily an ethical concept that clr obligated to respect the clt's privacy & to our promise to clts that their info reveal during clg will be protected from disclosure
CONFIDENTIALITY Supreme court case
  • in Jaffee v Redmond et al, 1996 it states b/c of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during clg sessions may cause embarassmt or disgrace
The Rationale for Confidentiality
  • clts need to know that they can trust their clrs to respect their rights to privacy
  • is based on 4 premises:
  • #1 the principle of respect for autonomy means clr honors clts' right to make their own choices.
  • applied to confidentiality-clr honors clt's rights to decide who knows what info about them & in what circumstance
The Rationale for Confidentiality: Premises
  • #2 respect for human relationships & for the secrets that certain types of relationship entail. in the professional relationship, the intimate contex is viewed as a necessary to clg
  • #3 has to do with the clr's obligation that arrive from autonomy & respect- a pledge of silence offered to clts by their clrs
  • #4 its utility the rationale is confidentiality in clg relationships is useful to society b/c clts would be reluctant to disclose or seek help without any assurances of privacy
  • another moral principle is fidelity means being faithful & keeping promises. clrs make promises that they will keep the secrets clts share in clg relationship. the relationship is viewed as a covenant & any breach will violate the bond of trust betw clr & clt. 
  • be mindful of clts privacy when engaging in new, modern technology
  • allow clts privacy when scheduling appts-
  • allow time for clts to enter & leave the session without not having to see the other clts.
  • clrs who seek consult should not discuss the clt to recognition but reveal enough without telling his/her name & never discuss in public places
  • student clrs must also respect their clts privacy ACA code F.8.a only as clg students honor right to privacy issues
CONFIDENTIALITY: Ethical Standards
  • ACA code section B confidentiality & privacy issues
  • when clts request their info, clr must honor the clts request except if clr believes releasing the info will be detrimental to clt's best interests-
  • these concerns s/b discussed with clt but ultimately the clt has the last say.
  • when clts request to see their records, according to HIPAA, they are entitled to but ACA code B.6.d clrs are obligated to provide except when info may be harmful or misleading
  • clrs must inform clts of the limits to confidentiality prior to clg B.1.d
  •  laws that protect clts from having confidential info disclosed in court w/out their permission
  • General law designed to allow the admission of relevant evidence. Parties generally have access to all information that will help yield a just result in the case.
  • Privileged info are an exception to this rule
  • Typically, privileged info between attorney and client, accountant and client, doctoror therapist and patient, priest and parishioner  The recipient of the info must keep it private, unless the privilege is waived by the clt/legal rep
Conditions to preserve PC status
  • conditions to preserve the confidential status of these communications.
  • First, the communication must be between people in a legally recognized protected relationship.
  • Next, the communication must take place in a private setting.
  • Lastly, the privileged status of the communication is lost it is shared with a third party

CARRIE JAFFEE, special administrator for RICKY ALLEN, Sr., deceased, PETITIONER v. MARY LU REDMOND et al. on writ of certiorari to the united states court of appeals for the seventh circuit June 13, 1996

  • trial court ruled in favor of the Allen estate citing that the clr-clt privilege was invalid
  • the 7th Circuit Court vacated the decision stating the clr-clt privilege is recognized in 50 states
  • final decision by US Supreme Court supported the clr-clt privilege
Privileged Communication
  • clrs must inform clt of exception toPC if their state does not honor the clr-clt privilege
  • a statutory privilege belongs to the clts. if the clr 's records are subpoenaed or if you are asked during a legal proceeding to disclose privilege info, its up to your clt to assert privilege so that the clr will not disclose the info.
  • if clt cannot be located to assert the privilege, the clr is obligated to assert privilege on behalf of the clt-seek legal advice prior to making this decision
PRIVILEGE COMMUNICATION: Responding to Subpoenas & Lawsuits
  • clrs who do not comply with subpoenas can be fined, held in contempt of the court or jailed until comply
  • get legal advice prior to responding, an attorney will review the subpoena & advise the clr how to respond
  • if a clr disclose confidential info & it does not qualify as an exception to confidentiality & privilege, clt can sue clr for breach of contract & malpractice
  • clt has to prove the clr disclosure cause harm, if proven clt will be awarded monetary gain for damages
  • ACA code B.1.d
  • dispute between clt & clr
  • when a clt's condition pose a danger to herself or others
  • in case of child abuse & neglect - mandated reporting laws
  • when the clr has knowledge that the clt is contemplating commission of a crime
  • court-ordered evaluations
  • for purposes of involuntary hospitalization
  • when the clr has knowledge that the clt has been a victim of crime
  • in cases of harm to vulnerable adults
Client Waiver of the Privilege
  • confidentiality & privilege belongs to the clt as a result clts have the right to waive their privacy
  • this occurs when clts explicitly asks the clr to give the clg info to third parties
  • or clt can implicitly waive the privilege by filing a lawsuit seeking damages for emotional distress caused by an accident of by filing a malpractice suit against the clr
Death of a Client
  • common law doctrine states privilege does not end when a person dies
  • when there is no statutory language dealing with privilege & death of the holder, then common law practice of allowing a legal rep of the deceased person to assert the privilege is generally followed
  • ACA code B.3.f states that clrs must protect the confidentiality of deceased clts according to legal requiremts or agency policies
Sharing Info with Subordinates & Fellow Professionals
  • these situations do not involve a breach of confidentiality
  • sharing info with others in order to provide the best services to clts is permissible when
  • clerical or other assistants handle confidential info
  • clrs consult with colleagues or experts
  • clrs are working under supervision
  • other professionals are involved in coordinating clt care
Clerical or other Assistants may handle Confidential Info
  • common law principles most likely would extend privilege to unprivilege assistants who are involved in activities that further the clt's tx
  • clrs are ethically responsible for any breach of confidentiality by someone who assists them or subordinates ACA code B.3.a
  • clrs can be held accountable for anyone who breach C/P thru doctrine vicarious liability
Counselors may consult with Colleagues or Experts
  1. ACA code C.2.e clrs can seek consultation from peers or experts
  2. ACA code B.8.b & B.8.c clrs are advised to share limited info that will not lead to identifying the clt, protect clt privacy, etc
  3. clr s/b selective in who they seek counsel
Confidential info may be shared when clr is in Supervision
  • confidential info will be seen by supervisors
  • ACA code E1c clr has to inform clt their confidentiality will be limited by supervision & group participation
  • ACA code B6c requires clr to get prior permission from clt before recording, reviewing transcripts with supervisors & faculty & other students
  • the relationship betw student clr-clt may not be privileged as a result student clr may be asked to reveal confidential info if legal proceeding ensues
  • if the clr-supervisor is providing clg services, it would be privilege
Other Professionals may be involved in coordinating clt care
  • ACA code B3b when clt care is continuing & under review by a team, the clt must be informed of who is on the team & the purpose of sharing info
  • ACA code A3, B3 states clr should work cooperatively with other professionals in clt care
  • B6f code require clr get written permission from clt prior to disclosure of info to others
  • HIPAA require clr get clt written permission to give info to third parties, that clrs who transfer info notify the receiving party
  • clt info will be privileged with tx team
  • confidentiality is breached in order to warn & protect someone who is in danger
  • a duty to protect from harm -when someone is vulnerable to choices/actions of others.persons are unable or dependent on others to interven when at risk of harm - this is higher than a duty of confidentiality

Clr must take action when they suspect abuse or neglect of children or other dependent persons

  • clrs have a legal & ethical duty to protect children or vulnerable adult if they suspect abuse ACA code B2a

Clrs must take action to protect clts who pose a danger to themselves

  • when clr determines clt is suicidal, they must do something to prevent the clts from harming themselves code B2a-if not clt's surviving family may sue for malpractice



Clrs must take action when clt pose a danger to others

  • when clrs believe their clts may harm someone else or it is communicated via third party, clr must take steps to prevent harm to that person code B2a-this duty could lead to negligence or malpractice

Clrs must determine whether to breach confidentiality when a clt has a fatal communicable disease & his behavior puts others at risk

  • same as others duty to warn to protect others
CLg Multiple Clients
  • when working with multiple people confidentiality is compromised & privilege is usually waived
  • confidentiality in group clg is not guaranteed as participants may confide in family or friends with what is happening in clg thus breaching C/P
  • ACA code B4a clr has to explain the importance & parameters of C/P
  • one case State v Andring 1984 set a precedence for group clg to be privileged
Confidentiality cannot be guaranteed in Couples or Family Clg
  • clr must discuss confidentiality & its limits prior to clg relationship & how clr will handle certain issues B4b
  • B2c clr has to cooperate with spouse & attorney-if clt invoke privilege, clr cannot disclose info in court. But if content is not privilege & clr refuse to reveal, clr may be found in contempt
Counseling Minors or Legally Incompetent Clients

When clts are minor children or legally incompetent, clrs cannot give the same assurances of confidentiality as they give other clts.

  • these clts by law require their parents or legal guardians who control their legal rights
  • As a result, clrs owe legal duties to parents or guardians of these clts
  • At same time, clrs have an ethical responsibility to their clts (MC/LI) B5 code
Court-Ordered Disclosures

Clrs must disclose confidential info when ordered to do so by a court

  • if the clr-clt relationship is privilege, clt or clr can assert privilege.
  • in cases with no privilege, clr who are ordered to reveal confidential info, should protest & explain the potential harm to clt & clg relationship B2c
  • If the judge still requires disclosure, only essential info is revealed B2d
  • clr has to consult with attorney prior to responding to subpoenas
Legal Protections for Clrs in Disputes

Clrs may reveal confidential info when it is necessary to defend themselves against charges brought by clts

  • when ethical & legal complaints are filed against the clr by clts, clts waive their privilege when they bring complaints or malpractice lawsuits against their clrs by law
Other Legal Exceptions

Clts waive their privileges when they bring lawsuits claiming emotional damage

  • if so, then the law automatically waives their privilege associated with clg relationships
  • most court have held that suits for normal distress or physical injuries arising out of a physical trauma do not automatically waive a plaintiff's right to privilege in clg relationships
  • Only when clts file cases of emotional distress or damaged, the privilege is waived
Other Legal Exceptions B

Privilege is generally waived in civil commitment proceedings

  • privilege is usually waived when the person is being evaluated by court to determine whether they should be involuntarily committed to a psychiatric hospital
  • clrs should carefully explain the nature of the interview to persons being evaluated to ensue they do not misunderstand the current relationship E13b code
  • when clr seek to commit a clt who initiated tx on their own, privilege may be waived by the clt by law Commonwealth ex rel. Pratt v Platt 1979
Diversity Considerations in Confidentiality & PC
  • clrs must be sensitive to th meaning of confidentiality & privacy B1a code
  • in a collectivist community, clrs may share  confidential info with family members or community if clt desires
  • if clt requires an interpreter, the clr will explain to that person the purpose & importance of confidentiality & ask to keep all disclosures confidential - clt is informed as well
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