Confidentiality: Ethical & Legal Issues
Definition (#f7aeae)
Important (#edcae9)
Extra (#fffe9d)
Confidentiality:
The counselor’s ethical duty to protect private client communication.
If a client doesn’t believe their communications with be kept confidential, they may not participate in counseling services.
Counselors are ethically obligated to help clients understand the meaning of confidentiality by presenting it in language the client can understand and that respects the cultural experiences of the client.
Exceptions:
When breaching confidentiality becomes necessary, it’s good practice to inform the client and also to invite the client to participate in the process.
Therapist has a duty to warn or protect oneself or others.
The clients themselves requests a release of information.
When reimbursement or other legal rules require disclosure.
When clerical assistants handle confidential information.
When the counselor discusses with experts or peers for supervision or consultation.
When other mental health professionals request information during referral process.
Breach of Confidentiality in an unprofessional manner can lead to ethical and legal sanctions:
Expulsion from a professional association.
Loss of certification.
License revocation.
A malpractice suit.
Related terms:
Privileged Communication: Legal concept that generally bars the disclosure of confidential communications made to a psychotherapist from any judicial proceedings or court of law.
Therapists can refuse to answer questions in court or refuse to produce a client’s records in court.
The law ensures that personal and sensitive client information will be protected from exposure by therapists in legal proceedings.
Does not apply to group counseling, couples counseling, family therapy, child or adolescent therapy.
Privacy: The constitutional right of individuals to be left alone and to control their personal information. The right to be protected from visibility, access, or intrusion by others
Privacy issues: Employers requesting access to an applicant’s or employee’s psychological tests, parents’ access to their child’s school and health records, and a third-party’s access to information about a client’s diagnosis and prognosis.
6-step Ethical Practice Model for Protecting Confidentiality Rights:
Preparation.
Tell Clients the Truth “up front”.
Obtain Truly Informed Consent before Making a Disclosure.
Respond Ethically to Legal Requests for Disclosure.
Avoid the “Avoidable” Breaches of confidentiality.
Talk about Confidentiality.
Issues with Telecommunication Devices:
Digital technology in the helping professions is wide ranging:
Computers, smartphones and other electronics are used to deliver services and communicate with clients, manage confidential case records, and access information about clients.
Though inexpensive & convenience, multiple ethical issues may arise from use of technology & telecommunication devices.
Therapists should discuss the use & risks of technology and the method for securing, protecting, and handling data with clients in the informed consent process and as needed throughout the therapeutic sessions.
AI induced psychosis:
AI Induced Psychosis: Phenomenon where prolonged or intense interactions with generative AI chatbots reportedly trigger, amplify, or shape psychotic-like symptoms in some users.
Not an official clinical diagnosis in the DSM-5 or ICD. May be seen in more vulnerable individuals i.e. with preexisting risk factors for psychosis.
Sycophancy: Excessive agreement, flattery, affective mirroring, and refusal to challenge or contradict the user to keep the conversation positive.
This creates a feedback loop; The AI validates and elaborates on unusual beliefs, making them more fixed and elaborate over time.
Tips on telecommunication use:
Be professional & cautious in discussing confidential information over the devices.
Avoid saying anything off the record; making any comments you would not want your client to hear.
If you are talking to a client by video call, assume that they may not be in a private place.
Be aware that there is no way to prevent your conversation from being recorded or monitored by an unintended person.
Remember that anything sent via email to clients ultimately ends up in their possession and may be shared with third parties.
Include a disclaimer stating that the information in the email is confidential and should not be shared with others without authorization from the sender.
Files should be password protected or encrypted.
Duty to Warn & Protect:
The mental health professional makes a reasonable effort to contact the identified victim of a client’s serious threats of harm, or to notify law enforcement of the threat.
Balancing client confidentiality and protecting the public is a major ethical challenge.
One of the most difficult tasks is deciding whether a particular client is dangerous & to decide when it is justified to breach confidentiality and notify to protect potential victims.
Concerns that laws require, rather than permit - a warning may dissuade potentially violent individuals from seeking treatment or fully revealing their intentions.
The potential liability may discourage therapists from treating such clients because their ability to predict violent behaviour is limited.
Other appropriate actions include hospitalizing the client, increasing the frequency of therapy sessions, notifying the police, or referring a client for a psychiatric consult or for prescribing medication.
Landmark court cases:
Liability for civil damages arises when practitioners neglect this duty by:
Failing to diagnose or predict dangerousness.
Failing to warn potential victims of violent behavior.
Failing to commit dangerous individuals.
Prematurely discharging dangerous clients from a hospital.
Guidelines for Dealing with Dangerous Clients:
Guidelines available on managing emotionally disturbed individuals, violent behaviour, threats, suicidal possibilities, and other circumstances.
Consult with colleagues or a supervisor.
Consult with an attorney if unclear about legal duties; know the laws in your state & whether it requires a ‘communicated’ threat against a specified & identifiable victim.
Obtain prior medical and behavioral history.
Inquire about a client’s access to weapons, homicidal ideation, and intentions.
In cases of immediate threat by a client, do not hesitate to take steps to prevent harm to yourself even if it means potentially fracturing your relationship with the client.
Make referrals where appropriate.
Document the people you consulted, all the actions you take, those you reject, and the rationale behind each of your decisions.
Duty to suicidal clients:
Clients may argue they could do what they want with their lives, including taking them, therapists have a legal duty to protect suicidal clients.
Not every mention of suicidal thoughts or feelings justifies extraordinary measures.
Counselors can be accused of malpractice for neglecting to take action to prevent harm when a client is likely to take the step of suicide, yet they are also liable if they overreact by taking actions that violate a client’s privacy when there is not a justifiable basis for doing so.
Ethical issues in assessing suicidality & non-suicidal self injury:
Not all self-injurious behaviours are predictors of suicide.
Counselors who work with clients who self-injure will most likely deal with ethical dilemmas regarding safety and duty to warn/protect.
Self-injury can be a way to transform emotional pain into physical pain, which is often easier to cope with for many people.
Non-suicidal self-injury is a complex and often misunderstood issue that may require counselors to re-evaluate their assumptions and biases before providing safe and effective treatment.
Guidelines for assessing suicidal behaviour:
Take direct verbal warnings seriously.
Pay attention to previous suicide attempts, or history in family.
Identify clients suffering from depression; Be alert for feelings of hopelessness and helplessness.
Monitor severe anxiety and panic attacks.
Explore the interpersonal stressor of loss and separation.
Ascertain whether there has been a recent diagnosis of a serious or terminal health condition.
Assess (absence of) client’s support system.
Determine whether the client has a plan.
Identify clients who have a history of severe alcohol or drug abuse.
Be alert to client behaviors (ex: giving prized possessions away, finalizing business affairs, revising wills).
Determine the history of psychiatric treatment.