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Chapter 6 Confidentiality Ethical and Legal Issues

Chapter 6 Confidentiality Ethical and Legal Issues

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Chapter 6

Confidentiality: Ethical and Legal Issues

Corey, 8e, ©2011, Brooks/ Cole ± Cengage Learning

Confidentiality and Related Terms

Confidentiality: rooted in a client¶s right to privacy, confidentiality is at the core of effective therapy; it ³is the counselor¶s ethical duty to protect private client communication. Privileged communication: a legal concept that generally bars the disclosure of confidential communications in a legal proceeding. the specifics of this privilege vary from state to state. Privacy: the constitutional right of individuals to be left alone and to control their personal information
Corey, 8e, ©2011, Brooks/ Cole ± Cengage Learning



Issues and Ethics - Chapter 6 (1)

Brooks/ Cole ± Cengage Learning . 8e. ©2011.Corey.

including complaints that an individual was denied access to his or her personal information held by a government institution Wikipedia. 8e.The act sets out rules for how institutions of the federal government must deal with personal information of individuals. when a government institution collects an individual's personal information from the individual. With some exceptions. it must inform the individual of the purpose for which the information is being collected. personal information under the control of a government institution may be used only for the purpose for which the information was obtained or for a use consistent with that purpose. With some exceptions. 1983. Some salient provisions of the legislation are as follows: A government institution may not collect personal information unless it relates directly to an operating program or activity of the institution. personal information under the control of a government institution may not be disclosed.Canadian Privacy Act y y y y y y y The Privacy Act is Canadian federal legislation that came into effect on July 1. and request correction if the information is inaccurate The Privacy Commissioner of Canada receives and investigates complaints. unless the individual consents (section 7). With some exceptions. unless the individual consents Every Canadian citizen or permanent resident has the right to be given access to personal information about the individual under the control of a government institution that is reasonably retrievable by the government institution. 2010 Corey. Brooks/ Cole ± Cengage Learning . ©2011.

2. Brooks/ Cole ± Cengage Learning . 4.Chapter 6 (2) Corey. 3. 5. 8e. ©2011. Fisher¶s (2008) 6-step ethical practice model for protecting confidentiality rights: Preparation Tell clients the truth ³up front´ Obtain truly informed consent before making a disclosure Respond ethically to legal requests for disclosure Avoid the ³avoidable´ breaches of confidentiality Talk about confidentiality Issues and Ethics .Protecting Confidentiality Rights y 1. 6.

Brooks/ Cole ± Cengage Learning . 8e. ©2011.Corey.

8e.Chapter 6 (3) Corey. Brooks/ Cole ± Cengage Learning .Limits of Confidentiality When clerical assistants handle confidential information When a counselor consults When a counselor is being supervised When a client has given consent When a client poses danger to self or others When a client discloses intention to commit a crime When a counselor suspects abuse or neglect of a child or vulnerable adult When a court orders counselor to make records available Issues and Ethics . ©2011.

Be professional and cautious in talking about confidential information over the telephone. Issues and Ethics . Strive to verify that you are actually talking to the intended person when you make or receive calls in which confidential information will be discussed.Chapter 6 (4) Corey. 8e.Privacy Issues With Telecommunication Devices Do not acknowledge that clients are receiving services or give out information regarding clients to unknown callers. avoid saying anything off the record. Be aware that there is no way to prevent your conversation from being recorded or monitored by an unintended person. ©2011. Brooks/ Cole ± Cengage Learning .

Do not allow unauthorized persons to hear answering machine messages in your office as they are being left or retrieved. 8e. Brooks/ Cole ± Cengage Learning . Issues and Ethics . When you leave a message on an answering machine. If you use voice mail or an answering service. ©2011.Privacy Issues With Telecommunication Devices Avoid making any comments that you would not want your client to hear or that you would not want to repeat in a legal proceeding. ensure that your access codes are not disclosed to unauthorized persons.Chapter 6 (5) Corey. be aware that the intended person may not be the one who retrieves your message.

8e. If you use a pager or a cell phone to send text messages. assume that he or she is not in a private place. be mindful of ensuring your client¶s privacy by exercising the same caution you would if you were sending a voice mail message. In sending a text message to a client. ©2011. exercise caution. Realize that your conversation may be intercepted by an unauthorized person. Issues and Ethics .Privacy Issues With Telecommunication Devices If you are talking to a client by cellular phone.Chapter 6 (6) Corey. Brooks/ Cole ± Cengage Learning .

©2011.Chapter 6 (7) Corey. The HIPAA Privacy Rule developed out of the concern that transmission of health care information through electronic means could lead to widespread gaps in the protection of client confidentiality. Issues and Ethics . 8e. Brooks/ Cole ± Cengage Learning .Implications of HIPAA for Mental Health Providers y The Health Insurance Portability and Accountability Act of 1996 (HIPAA) passed by Congress to promote standardization and efficiency in the health care industry and to give patients more rights and control over their health information.

2010 Corey. Brooks/ Cole ± Cengage Learning . y Wikipedia. but does not include the name.Personal Information Protection and Electronic Documents Act (PIPEDA or PIPED Act) Act) a Canadian law relating to data privacy. ©2011. use and disclose personal information in the course of commercial business. y "Personal Information". is as follows: information about an identifiable individual. the Act contains various provisions to facilitate the use of electronic documents. y PIPEDA incorporates and makes mandatory provisions of the Canadian Standards Association's Model Code for the Protection of Personal Information. It governs how privatesector organizations collect. PIPEDA became law on 13 April 2000 to promote consumer trust in electronic commerce. In addition. developed in 1995. as specified in PIPEDA. title or business address or telephone number of an employee of an organization. 8e.

©2011. use or disclosure of your personal information unless that information is essential to the transaction. y obtain access to their personal information and ask for corrections if necessary. and y have personal information policies that are clear. y expect an organization to protect their personal information by taking appropriate security measures.PIPEDA The law gives individuals the right to y know why an organization collects. use or disclose their personal information reasonably and appropriately. y collect information by fair and lawful means. y know who in the organization is responsible for protecting their personal information. 2010 Corey. and y complain about how an organization handles their personal information if they feel their privacy rights have not been respected. The law requires organizations to y obtain consent when they collect. Wikipedia. 8e. Brooks/ Cole ± Cengage Learning . use or disclose their personal information. y expect an organization to collect. y expect the personal information an organization holds about them to be accurate. complete and up-to-date. understandable and readily available. and not use the information for any purpose other than that to which they have consented. uses or discloses their personal information. y supply an individual with a product or a service even if they refuse consent for the collection.

©2011. Issues and Ethics . 8e.Duty to Protect Potential Victims y Balancing client confidentiality and protecting the public is a major ethical challenge Counselors must exercise the ordinary skill and care of a reasonable professional to: Identify clients who are likely to do physical harm to third parties Protect third parties from clients judged potentially to be dangerous Treat those clients who are dangerous y 1. 3.Chapter 6 (9) Corey. Brooks/ Cole ± Cengage Learning . 2.

8e.Chapter 6 (10) Corey.Liability for Civil Damages y The responsibility to protect the public from dangerous acts of violent clients entails liability for civil damages 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 y y y y Issues and Ethics . Brooks/ Cole ± Cengage Learning . ©2011.

Brooks/ Cole ± Cengage Learning . 8e. ©2011. pg 234 duty to commit a dangerous individual y y Issues and Ethics . pg 234 duty not to negligently release a dangerous client Jablonski Case. pg 231 duty to warn of harm to self or others duty to protect Bradley Case.Chapter 6 (11) Corey.Legal Precedents y Tarasoff Case.

Chapter 6 (12) Corey. Brooks/ Cole ± Cengage Learning . pg 234 extends duty to warn to anyone who might be near the intended victim and who might also be in danger y Jaffee Case. ©2011. pg 214 communications between licensed psychotherapists and their clients are privileged and therefore protected from forced disclosure in cases arising under federal law Issues and Ethics . 8e.Legal Precedents y Hedlund Case.

©2011. and intentions.Risk Management Guidelines: Cases of Duty to Warn/ Protect y Consult with an attorney if you are not clear about your legal duty.Chapter 6 (13) . Consider all appropriate steps to take and the consequences of each. 8e. Document all actions you take and the rationale behind each of your decisions. which would include whether a specific victim is involved. Know and follow the policy of your institution. Brooks/ Cole ± Cengage Learning y y y y Issues and Ethics . Corey. homicidal ideation. Inquire about a client¶s access to weapons.

Chapter 6 (14) Corey.School Counselor Liability for Student Suicide y Counselors need to educate school employees. 8e. Counselors might institute peer assistance programs to help identify students at risk for suicide. about the risk factors associated with adolescent suicide. especially teachers. It would be useful for school counselors to have increased access to training programs geared to acquiring information about student suicide. Brooks/ Cole ± Cengage Learning . y y Issues and Ethics . ©2011.

y y Issues and Ethics .Chapter 6 (15) Corey. ©2011. 8e. Brooks/ Cole ± Cengage Learning . Professional journals and professional conferences need to continue highlighting the issue of student suicide.School Counselor Liability for Student Suicide y School counselors would do well to take the initiative in obtaining continuing education on recent developments in the field of student suicide to help limit their legal liability. Counselor education programs need to better prepare future school counselors to recognize students at risk for suicide.

8e. ©2011. Brooks/ Cole ± Cengage Learning Issues and Ethics . Corey.Chapter 6 (16) .Guidelines for Assessing Suicidal Behavior y y y y y y Take direct verbal warnings seriously. Ascertain whether there has been a recent diagnosis of a serious or terminal health condition. Monitor severe anxiety and panic attacks. Identify clients suffering from depression. Be alert for feelings of hopelessness and helplessness. Pay attention to previous suicide attempts.

Brooks/ Cole ± Cengage Learning . ©2011. giving prized possessions away. y Determine the history of psychiatric treatment. y Be alert to client behaviors (e. or revising wills). 8e. Identify clients who have a history of severe alcohol or drug abuse. finalizing business affairs.Guidelines for Assessing Suicidal Behavior y y Determine whether the individual has a plan.Chapter 6 (17) Corey. Issues and Ethics .g.

If children.Protecting Children. Issues and Ethics . or dependent adult abuse. thus. the professional is required to report the situation under penalty of fines and imprisonment. The professional has an obligation to protect those who cannot advocate for themselves. therapists are advised to err on the side of reporting in uncertain circumstances. the elderly. ©2011. Brooks/ Cole ± Cengage Learning . 8e. the Elderly.Chapter 6 (18) Corey. or other dependent adults disclose that they are being abused or neglected. and Dependent Adults From Harm y Mandatory reporting designed to encourage reporting of any suspected cases of child. elder.

©2011. 8e. Brooks/ Cole ± Cengage Learning Issues and Ethics .Chapter 6 (19) .Types of Elder Abuse y y y y y y Physical abuse Sexual abuse Psychological or emotional abuse Neglect Abandonment Financial or material exploitation Corey.

yet counselors are not necessarily obligated to take this course of action Sufficient factual grounds for high risk of harm to third party must exist Third party is at risk of death or substantial bodily harm Harm to the third party is not likely to be prevented unless counselor makes disclosure Third party cannot reasonably be expected to foresee or comprehend high risk of harm to self y y y y Issues and Ethics . 8e. ©2011.Ethical Guidelines for Disclosure of a Client¶s HIV Status y Counselors may be justified in disclosing information to a third party who is at risk. Brooks/ Cole ± Cengage Learning .Chapter 6 (20) Corey.

Chapter 6 (21) Corey. 8e. Brooks/ Cole ± Cengage Learning .Recommendations to Professionals Who Counsel HIV Clients y All limits to confidentiality should be discussed with the client at the outset of treatment Therapists must be aware of state laws regarding their professional interactions with HIV-positive clients Therapists need to keep current with regard to relevant medical information Therapists need to know which sexual practices are safe y y y Issues and Ethics . ©2011.

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