NAME: MARIA

RIAZ
ROLL NO: 03
Confidentiality, Privacy, and Record Keeping

• A PROBLEM OF DEFINITIONS
• LIMITATIONS AND EXCEPTIONS
• ACCESS TO RECORDS
• TAKING ADVANTAGE OF CONFIDENTIAL INFORMATION
In the words of Justice Stevens, citing the amicus briefs of
the American Psychological and Psychiatric Associations:

Effective psychotherapy … depends upon an atmosphere of confidence and trust in which the
patient is willing to make a frank and complete disclosure of facts, emotions, memories, and
fears. Because of the sensitive nature of the problems for which individuals consult
psychotherapists, disclosure of confidential communications made during counseling sessions
may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may
impede development of the confidential relationship necessary for successful treatment.
(Jaffe v. Redmond, 1996)
A PROBLEM OF DEFINITIONS:

• Confusion about three commonly used terms: privacy, confidentiality, and privilege often
complicates discussions of ethical problems in this arena.
• At least part of the confusion flows from the fact that, in particular situations, these terms
may have narrow legal meanings quite distinct from broader traditional meanings attached by
mental health practitioners.
 Privacy:

• It involves the basic entitlement of people to decide how much of their property, thoughts,
feelings, or personal data to share with others.
• Privacy has seemed essential to ensure human dignity and freedom of self-determination.
• The concepts of both confidentiality and privilege grow out of the broader concept of an
individual’s right to privacy.
• Concern about electronic surveillance, the use of lie detectors, and a variety of other
observational or data-gathering activities fall under the heading of privacy issues.
• In general, clients of mental health professionals may find their privacy rights compromised
when their behavior seriously violates social norms or somehow endangers others. An
example would be the issuance of a search warrant based on “probable cause” that a crime
has taken place or may soon occur.
Case:
Shana Shalom, an orthodox Jewish émigré from Israel, sought counseling regarding her unhappy
marriage from Hebrew-speaking therapist Tanya Talmud, L.M.F.T. Ms. Shalom later complained
to the state licensing board that Ms. Talmud had discussed matters she disclosed in therapy to the
family rabbi without her knowledge or consent. The rabbi in turn communicated some of the
content to Ms. Shalom’s spouse. Ms. Talmud replied to the licensing board that in Israel’s
orthodox Jewish communities, soliciting the aid from a couple’s rabbi often proves a useful way
to address marital problems.
The licensing board censured Ms. Talmud, reminding her that she treated Ms. Shalom in her
capacity as a licensed marriage and family therapist in the United States, not Israel. In addition,
basic ethical principles of autonomy and human dignity entitled Ms. Shalom to have a voice in
any decision about disclosing material she had offered in confidence.
 Confidentiality:
• Confidentiality refers to a general standard of professional conduct that obliges a professional
not to discuss information about a client with anyone.
• Confidentiality implies an explicit contract or promise not to reveal anything about a client
except under certain circumstances agreed to by both parties.
Although the roots of the concept are in professional ethics rather than in law, the nature of the
relationship between client and therapist does have substantial legal recognition.
• One can imagine, for example, that clients who believe that their confidences were violated
could sue their psychotherapists in a civil action for breach of confidentiality and possibly
seek criminal penalties if available under state law.
• For instance, a New York appeals court ruled that a patient may bring a tort action against a
psychiatrist who allegedly disclosed confidential information to the patient’s spouse, allowing
the patient to seek damages for mental distress, loss of employment, and the deterioration of
his marriage (“Disclosure of Confidential Information,” 1982; MacDonald v. Clinger, 1982).
• All clients have a right to know the limits on confIdentiality in a professional relationship
from the outset. The initial interview with any client (individual or organizational) should
include a direct and candid discussion of limits that may exist with respect to any confidences
communicated in the relationship.
• Not only will failure to provide such information early on constitute unethical behavior, and
possibly behavior illegal in health care settings, but also such omissions may lead to clinical
problems later. In some contexts, conveying such information orally may suffice, but
documenting the conversation becomes critical.
Privilege
• The concept of privilege (or privileged communication) describes certain specific types of
relationships that enjoy protection from disclosure in legal proceedings.
• Normal court rules provide that anything relative and material to the issue at hand can and
should be admitted as evidence. When privilege exists, however, the client has a degree of
protection against having the covered communications revealed without explicit permission.
• If the client waives this privilege, the clinician must testify on the nature and specifics of the
material discussed.
The client cannot usually permit a selective or partial waiver. In most courts, once a waiver is
given, it covers all of the relevant privileged material.
LIMITATIONS AND EXCEPTIONS

• Almost all of the statutes addressing confidentiality or providing privileges expressly require licensing,
certification, or registration of mental health professionals under state law, although some states extend
privilege when the client reasonably believes the alleged therapist to be licensed (DeKraai & Sales, 1982).
• Clients of students (including psychology interns, unlicensed postdoctoral fellows, or supervisees) may not
specifically have coverage under privilege statutes.
• In many circumstances, designated practitioners have a legally mandated obligation to breach
confidentiality and report certain information to authorities. Just as some physicians must under some state
laws report gunshot wounds or certain infectious diseases, mental health practitioners may have an
obligation to report certain cases, such as those involving child abuse, to state authorities.
• These restrictions could certainly affect a therapeutic relationship adversely, but the client has a right to
know any limitations in advance, and the clinician has the responsibility both to know the relevant facts
and to inform the client as indicated (APA: 02: 3.10 and 4.02; AAMFT:2.1; ACA: B.1.d; NASW: 1.07.e).
The best approach to avoid problems in one’s practice involves three separate issues:
• First, each therapist should clearly advise every client at the start of their professional
relationship of limits on confidentiality.
• Second, clinicians should think through and come to terms with the circumstances under
which they will breach confidentiality or privilege. Consultation with an attorney about the
law in the relevant practice jurisdiction will prove crucial because of diverse case law
decisions and variable statutes.
• Finally, should an actual circumstance arise bearing on these issues, consultation with
colleagues can help sort out alternatives that may not come to mind initially.
ACCESS TO RECORDS:

Mental health practitioners keep records of their work and clients for a variety of reasons
—legal obligation, reluctance to rely on memory, communication to other professionals,
ready availability of important data, and documentation of services provided, to name a
few (Luepker, 2012).
Consent for the Release of Records

• Transferable records can be of great assistance or substantial detriment to clients, depending on

their contents and uses. Often, the process of obtaining consent occurs so hurriedly or
perfunctorily that clients may not fully understand what they have authorized or why.
Some may even sign release forms against their wishes because of a variety of subtle and obvious
pressures or because no alternatives seem available (Damschroder et al., 2007; Luepker, 2012;
McSherry, 2004; Rosen, 1977).
• The practitioner has an important role in educating and helping to safeguard the client’s interests
in such cases (Clemens, 2006; Rogers, 2006).
• If a therapist receive a release or request for information that does not seem valid or might
present some hazard to the client, consider contacting the client directly to seek confirmation
prior to releasing any material.
• Whenever signing a consent form, the client should receive a copy, and the therapist should
make the original a part of that client’s files.
• The practitioner should also keep a record of which materials were sent, to whom, and when.
Clinical records should bear a confidential designation, and the recipient should remain aware
of any limitations on their use.
• One should also exercise caution to see that only material appropriate to the need is sent.
Client Access to Records

• The records do not belong to the client but rather are the property of the institution or private
practitioner as their creator and keeper, depending on the setting involved. While clients may
have a right to copies of or access to their records, and certainly an interest in them, the
records themselves do not belong to the client unless expressly transferred to the client for
some reason.
• Clients may from time to time assert the claim to a record “because I paid for that report” or
“I paid for those therapy sessions.” In fact, the client paid for services rendered, or perhaps a
copy of a report, but not for the actual original records (e.g., case notes, process notes, or test
protocols) unless specified as part of the agreement with the therapist or agency for some
unusual reason.
Opponents of free client access to records have generally made two types of claims.
• First, they have asserted that the therapist must feel free to speculate and jot down any
thought or comments. Some of these will invariably seem erroneous or misleading if taken
out of context.
• Second, opponents of open access have sometimes claimed that harm may follow release of
technical professional information to clients who are not equipped to understand or deal with
it (Strassburger, 1975).
Access by Family Members
• Occasionally, a concerned family member will seek access to a client’s records. When the
client is a child or deemed legally incompetent, parents or guardians generally have full legal
entitlement to record access.
• Therapists should recognize the unique problems that arise when working with minors or
families and should remain sensitive to each individual’s right to privacy and confidentiality
in such circumstances. From the outset of any such relationship, all parties should receive
information about the specific nature of the confidential relationship.
• A discussion about what sorts of information might be shared and with whom should be
raised early. This is not a difficult or burdensome process when done as a routine practice.
Court Access to Records

• Despite privilege, however, some courts or litigants may still seek access to privileged
information as well as other confidential material. While mental health professionals must
certainly respect appropriate requests emanating from the courts, they must also reasonably
safeguard material from inappropriate release.
• Some practitioners assume that their working notes fall outside the realm of materials subject to
disclosure in court, feel stunned when a subpoena duces tecum arrives, demanding that they
appear in court and bring with them “any and all, files, documents, reports, papers,
photographs, recordings, and notes in whatever form they exist” regarding the case in question.
• In such instances, understanding the differences between a subpoena and a court order becomes
critically important. A subpoena simply compels a response, and in some jurisdictions an
attorney can obtain one simply by asking the court clerk. The response need not provide what
the subpoena document demands.
• If the papers seek documents or testimony protected by privilege, the therapist should seek
clarification from the client’s attorney or the court.
• A court order, on the other hand, typically follows a hearing before a judge and compels a
disclosure unless appealed to a higher court. In the end, the court must decide what qualifies as
protected or not.
• If a subpoena or request for documents arrives from a client’s own attorney and without a
release form, check with your client, not the attorney, before releasing the documents. If a
signed release form does accompany the request but the therapist believes that release of the
material might cause clinical or legal damage, discuss it with the client.
Records and Cyberconfidentiality
• Rapid changes in the ways we store, retrieve, and transmit data, including sensitive clinical
and financial material, raise many new types of confidentiality concerns.
• Vast amounts of information can now be stored in small, easily transported electronic,
magnetic, or optical devices that can often be misused, stolen, or misplaced. Use of the
Internet for communications provides great convenience as well as considerable unresolved
confusion and controversy related to rights and obligations of users.
• Mental health professionals making use of new technology must remain thoughtful and
cautious about the hazards to confidentiality that result.
Third-Party Access: Insurers and Managed Care

• Clients may sometimes authorize the release of information to third parties without fully understanding
the implications.
• When clients decide to submit a claim for mental health benefits to an insurance company (or authorize
a clinician to do so on their behalf), they may not realize that, in so doing, the provider of services will
share certain information (e.g., diagnosis, type of service offered, dates services took place, duration of
treatment, etc.).
• In some circumstances, insurers or companies designated to manage mental health benefits may have
authorization to seek detailed information from case files, including a client’s current symptom status,
details of a treatment plan, or other sensitive material.
• Once information leaves a practitioner’s office, it lies beyond the practitioner’s control, and insurance
companies may not exercise the same caution and responsibility as the individual practitioner.
TAKING ADVANTAGE OF CONFIDENTIAL
INFORMATION
• Occasionally, psychotherapists have an opportunity to gain personally as a result of
information record.
• It is impossible to know how often psychotherapists may benefit in some way from
information they receive in the course of work with clients.
• The use of such information does not intrinsically constitute ethical misconduct. For example,
a client who reports distress about an unreliable automobile mechanic may lead the therapist
to avoid using that business.
• However, that same sort of information is generally available to many people by word of
mouth and would not lead to personal gain at the expense of others.
CONFIDENTIAL MATERIAL IN THE CLASSROOM
AND LABORATORY
Classroom Materials and Public Lectures or Writing:
• Ideally, any materials prepared for teaching that make use of sensitive or confidential material
involve the full informed consent of the client.
• When adapting videotapes or audiotapes, detailed summaries of case material, or other
accounts of psychological material not otherwise in the public domain, the client or client’s
legal guardian should have consented to the use of the material for teaching purposes
(Landrum & McCarthy, 2012).
• This becomes especially important when the nature of the material (e.g., visual reproductions
or recognizable facts) might make it possible to identify the client.
• Formal consent may not be necessary if disguising the material makes identification of the
client impossible.
• The chances of having a relative, friend, acquaintance, or colleague of a client in the audience
is not as small as one might imagine, and the consequences of revealing a confidence or
sharing intimate details of a client’s personal life in recognizable fashion may have
devastating effects.
• There are times when this becomes unlikely, such as a classroom discussion of a response to
the Rorschach inkblots in which the identifying data include only the client’s age and sex or
the use of a thoroughly blinded case history.
• Actual individual consent may prove unnecessary for such material. When in doubt, however,
we suggest reviewing the material with a colleague to ensure that some identifying facts have
not inadvertently escaped attention.
• Likewise, one should delete any superfluous facts that might help to identify the client while
not adding meaningful detail to the example.
Refrences

American Psychological Association. (1993). Record keeping guidelines. American

Psychologist, 48, 984–986. doi:http://dx.doi. Org/10.1037/0003-066X.48.9.984
Barnett, J. E. (2012). Clinical writing about clients: Is informed consent sufficient?
Psychotherapy, 49, 12–15. doi:http://dx.doi.org/10.1037/a0025249
Benjamin, G. A. H., Kent, L., & Sirikantraporn, S. (2009). A review of duty-to-protect statutes,
cases, and procedures for positive practice. In J. L. Werth, E. Reynolds, & G. A. H. Benjamin
(Eds.), The duty to protect: Ethical, legal, and professional considerations for mental health
professionals (pp. 9–28). Washington, DC: American Psychological Association.
Koocher & Keith-Spiegel – Oxford University Press - 2016