Confidentiality 2

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Jan 9, 2024

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Confidentiality, Privilege, & Privacy - EDC 530 - Dr. Latofia Parker , PhD., NCC, LPC FOCUS QUESTION What do you think are the distinctions among the terms “privacy ,” “confidentiality ,” and “privileged communication ?” CONFIDENTIALITY Counselors recognize that trust is a cornerstone of the counseling relationship. Counselors aspire to earn the trust of clients by creating an ongoing partnership, establishing and upholding appropriate boundaries, and maintaining confidentiality. Counselors communicate the parameters of confidentiality in a culturally competent manner (ACA, 2014). CONFIDENTIALITY Protecting Confidentiality Rights Fisher’s (2008, 2016) 6-step ethical best practice model for protecting client's confidentiality rights: 1. Preparation 2. Tell clients the truth “up front” 3. Obtain truly informed consent before making a disclosure 4. Respond ethically to legal requests for disclosure 5. Avoid the “avoidable” breaches of confidentiality 6. Talk about confidentiality Limits of Confidentiality Privileged communication Privilege is a legal term that refers to the protection of confidential communications between two parties. Privilege is determined by legal statue and varies from state-to-state. Counselor-client relationships are considered privileged. Privilege belongs to the client, yet the counselor is charged with the responsibility of upholding the privilege (Wheeler & Bertram, 2019). Confidentiality refers to the ethical duty of counselors to protect the private communication. It also may have legal implications that flow from the counselor's legal duty (Wheeler & Bertram, 2019). 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

Exceptions to privilege Client puts his or her emotional condition into issue in a lawsuit Civil commitment proceedings Client initiates a malpractice action or licensure board complaint against a counselor. A defendant who claims insanity In cases of child custody or abuse litigation Statements made in the presence of a 3rd party (I.e, group, family therapy, couples counseling). Child/adolescent therapy. (Corey, Corey, Corey, 2019; Bertram & Wheeler, 2019). Varies from state to state Alabama Privilege Law Supreme court precedent Jaffee v. Redmond (1996)- was the first Supreme Court case to definitively uphold the concept of a psychotherapist-patient privilege in the federal court system. Read more about Jaffee v. Redmond The Federal Psychotherapist-Patient Privilege Justia US Supreme Court https://www.apa.org/about/offices/ogc/amicus/jaffee affee v. Redmond Liability for Civil Damages 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 PRIVACY The constitutional right of individuals to be left alone and to control his/her personal information. Privacy & HIPPA The Health Insurance Portability and Accountability Act of 1996 (HIPAA). Promotes standardization and efficiency in the health care industry and give patients more rights/control over their health information. HIPAA Privacy Rule (2018, as amended) developed out of concern that transmission of health care information through electronic means could lead to wide gaps in protection of client confidentiality. The privacy rule applies to both paper and electronic transmissions of protected health information (PHI). HIPPA Security Rule (2018, as amended) requires technical, administrative, and physical safeguards to protect the security of PHI in electronic form. HIPPA COVERED ENTITIES Covered entities : health plans, health care clearinghouses, and helath care providers who transmit health information by electronic means. To determine if you are covered entity, you must answer yes to all three of these questions: 1. Are you a health care provider? 2. Do you transmit information electronically? 3. Do you conduct covered transactions, as outlined by HIPPA?

Privacy Issues With Telecommunication Devices  Be aware that there is no way to prevent your conversation from being recorded or monitored by an unintended person.  Avoid making any comments you would not want your client to hear or you would not want to repeat in a legal proceeding.  When you leave a message on an answering machine, be aware that the intended person may not be the one who retrieves your message.  If you use a cell phone to send text messages, exercise caution. o In sending a text message to a client, be mindful of ensuring your client’s privacy by exercising the same caution you would if you were sending a voicemail message.  Do not acknowledge that clients are receiving services or give out information regarding clients to unknown callers.  Strive to verify that you are talking to the intended person when you make or receive calls in which confidential information will be discussed. HIPPA STANDARDS PRIVACY ELECTRO NIC TRANSMIS SION SECURITY NATIONAL IDENTIFIE R Be professional and cautious in talking about confidential information over the telephone. Avoid saying anything off the record. Do not allow unauthorized persons to hear vocie mail messages in your office as they are being left or retrieved.

HIPPA AND MENTAL HEALTH To read more about HIPPA guidelines related to mental and behavioral health, including opioid overdose review the following website: HIPPA ad Mental Health The health information technology for economic and clinical health (Hitech) HITECH, enacted as part of the American Recovery and Reinvestment Act of 2009, was signed into law on February 17, 2009, to promote the adoption and meaningful use of health information technology. Subtitle D of the HITECH Act addresses the privacy and security concerns associated with the electronic transmission of health information, in part, through several provisions that strengthen the civil and criminal enforcement of the HIPAA rules ( HITECH ACT ) RECENT HITECH VIOLATIONS SPECIFIC POPULATION CONCERNS Subpoenas o A subpoena is an official court document that requires the recepient to appear in court to be questioned as a witness, or to be deposed at another location, about facts underlying a lawsuit. o A subpoena may also require the production of documents such as progress and/or process notes. If you are talking to a client by cellular phone assume that he or she is not in a private place. Realize that your conversation may be intercepted by an unauthorized person. If you use voicemail or an answering service, ensure your access codes are not disclosed to unauthorized persons. A N U N E C R Y P T E D L A P T O P S T O L E N F R O M A C O V E R E D E N T I T Y 'S U N L O C K E D T E S T I N G O F F I C E . A N E M P L O Y E E L E F T A N E X T E R N A L P O R T A B L E H A R D D R I V E C O N T A I N I N G E L E C T R O N I C P H I I N A V E H I C L E T H A T W A S S T O L E N . A B U S I N E S S A S S O C I A T E E M P L O Y E E S N E T A N E M A I L T O M U L T I P L E P A T I E N T S W I T H O U C C O N C E A L I N G P A T I E N T E M A I L A D D R E S S E S S .

o Counselors are required to respond immediately with deliberation to avoid asserting privilege (Wheeler & Bertram, 2019). RESPONDING TO SUBOENAS COUNSELING MINORS "Counselors inform parents and legal guardians about the role of counselors and the confidential nature of the counseling relationship... Counselors are sensitive to the cultural diversity of families and respect the inherent rights and responsibilities of parents/guardians regarding the welfare of their children... Counselors work to establish, as appropriate, collaborative relationships with parents/guardians to best serve clients (ACA, Standard B.5.b). " COUNSELING MINORS – SCHOOL SETTINGS "School counselors recognize their primary ethical obligation for confidentiality is to the students but balance that obligation with an understanding of parents’/guardians’ legal and inherent rights to be the guiding voice in their children’s lives. School counselors understand the need to balance students’ ethical rights to make choices, their capacity to give consent or assent, and parental or familial legal rights and responsibilities to make decisions on their child’s behalf (ASCA, 2016; Standard A.2.f).” FERPA Duty to Protect Potential Victims o Counselors must exercise the ordinary skill and care of a reasonable professional to: o Identify clients who are likely to do physical harm to third parties o Protect third parties from clients judged potentially to be dangerous o Treat those clients who are dangerous Consult an experience d health care attorney. 01 Determine if the client will give written consent to release information/ testify. 02 If client agrees then proceed as directed by your attorney. 03 If client declines, then request client's attorney file motion to squash subpoena. 04 If the proceeding steps don't work file a motion for a court order. 05 If court order is issued, proceed under the direction of legal counsel. 06 To Read more about FERPA visit Family Educational Rights and Privacy Act (FERPA) . Things to Consider: Education record vs. Sole possession notes, aka, "memory jogger." Noncustodial parents have a right to educational records, unless there is a contrary court order.

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