5320 U4 D1 Confidentiality and Practice

See Attached.

215

CHAPTER 9

Confidentiality

Maria: It’s okay. You can talk to Ms. Armstrong as long as you don’t tell
her who I am. I don’t want anyone knowing what I told you. Besides,
I thought talking to you was like talking to a priest in confession . . .
you know, a major secret?

Maria understands the fundamental nature of the helping rela-
tionship. It is one in which the individual’s right to privacy is
respected. However, as with most things in this profession, the

issue of privacy or confidentiality is not simply yes or no

While confidentiality is a value held and practiced by all ethical prac-

titioners, the extent of such confidentiality can and will vary as a result of
the context, client characteristics, and the nature of the information shared
(see for example Chapter 13). The concept and ethical principal of confi-
dentiality, along with those conditions that define the extent and limits of
confidentiality, will serve as the focus for the current chapter.

OBJECTIVES

●

After reading this chapter you should be able to do the following:

• Describe what is meant by the terms confidentiality and privilege.

• Identify the conditions under which confidentiality and privilege
should be breached.

Parsons, Richard D., and Karen L. Dickinson. Ethical Practice in the Human Services : From Knowing to Being, SAGE Publications, Incorporated, 2016.
ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/capella/detail.action?docID=5945468.
Created from capella on 2023-02-02 11:57:35.

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216–●–ETHICAL PRACTICE IN THE HUMAN SERVICES

• Discuss the conditions that need to exist for duty to warn to be
implemented.

• Describe the special challenges facing practitioners working with
both minors and those with HIV/AIDS in regard to confidentiality.

• Describe challenges of the technological era, including distance coun-
seling, social media, texting, and corresponding by fax machine and
e-mail.

● CONFIDENTIALITY: WHAT AND WHEN WARRANTED?

Privacy and the right to decide for oneself the time and circumstances under
which to disclose personal beliefs, behaviors, and opinions is a cornerstone
to our individual rights under the Constitution of the United States. It is this
constitutional right to privacy that serves as the legal basis of privileged com-
munication and the professional concept of con fidentiality (Kurpius, 1997).
Confidentiality is a central factor underlying the public trust in mental health
practitioners.

● CONFIDENTIALITY IS NOT PRIVILEGED

Confidentiality refers to the ethical principal that conveys that the information
discussed within the context of the professional relationship will not be dis-
closed without a client’s informed consent. Confidentiality is truly the client’s
right (Sheperis, Henning, & Kocet, 2016) and is essential to the nature of a help-
ing relationship. Research suggests that people are more apt to self-disclose
in therapy when their privacy is protected and their confidentiality assured
(Evans-Marsh, 2003). Clients who cannot trust professionals to treat informa-
tion as confidential may withhold information that is important to the assess-
ment and treatment. The helping relationship requires a client to place his or
her trust in the helper, knowing that the information will remain confidential.

Confidentiality should not be equated with privileged communication.
Privileged communication is a legal term describing situations in which the
client is legally protected in a court of law from having personal, confiden-
tial information disclosed by the therapist. Whereas therapists are directed
under their code of ethics to maintain client privacy or confidentiality with
privilege, that protection is ensured by the law, such that client information
will be protected from disclosure even in legal proceedings (Corey, Corey,
Corey, & Callahan, 2015).

Confidentiality is the broader concept that includes the expectation
that material will not be divulged, whereas privileged communications carry

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Chapter 9. Confidentiality–●–217

a strong admonition that mate rial will not and may not be divulged even in
court. While confidential material covers most of what transpires between
the client and the practitioner, privilege belongs only to certain defined pro-
tected relationships, such as physician and patient; lawyer and client; and
psy chologist, social worker, and psychiatrist and their clients. The privilege
brings with it the necessity to receive permission from the client, the holder
of the privilege, prior to disclo sure (see Case Illustration 9.1).

Case Illustration 9.1

Release Only With Consent

Dr. Ramerez is a licensed psychiatrist. Dr. Ramerez is currently work-
ing with Alfred, who has been diagnosed as having post-traumatic
stress disorder (PTSD) as a result of a serious car accident in which
13 people were killed. Alfred was the only one of four people within
his car that survived. The accident, which involved an oil truck and
seven cars, was caused by an oil-tank truck driver falling asleep at the
wheel. An insurance company representing one of the other victims in
the crash in a lawsuit against the oil company subpoenaed Dr. Ramerez’s
records on his diagnosis and treatment of Alfred.

Dr. Ramerez, respectfully declined to honor the subpoena, claiming
the information to be privileged and stating that he would release this
information only when his client would consent to its release. The
lawyer representing the complainant in the lawsuit against the truck
company explained that the only purpose of the request was to dem-
onstrate the “potential” psychological impact that his client could
experience well after her physical wounds had healed, and he wanted
to use Alfred’s case as an illustration of PTSD. Dr. Ramerez explained
the request to Alfred, who wanted to sign a consent form to release the
information. Dr. Ramerez still felt that releasing the information was
neither required nor desired. However, Dr. Ramerez understood that
privilege belonged to the client and not to the therapist; since Alfred
consented to release the information, he did.

For communication to be privileged, the standard that has been his-
torically held is that the communication must satisfy specific criteria. The
requirements of this privilege are (a) the communications must be confi-
dential, (b) the therapist must be a licensed psychotherapist, and (c) the
communications must occur in the course of diagnosis or treatment (Jaffee
v. Redmond, 1996).

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218–●–ETHICAL PRACTICE IN THE HUMAN SERVICES

With these criteria as backdrop, it would appear that the legal concept
of privileged communication does not apply in group situations or even
couple therapy, since the presence of the third person makes ensuring the
origination of confidence difficult to enforce. Clearly, when working with
groups, couples, or other situations in which the disclosures fail to meet
criteria of privilege, practitioners have an ethical responsibility to maintain
confidentiality while explaining the limitations to both confidentiality and
privilege communications. Further questions regarding who can claim the
privilege, what type of information is privileged, and what the limitations
to privilege are can vary extensively state to state. Not all states, for example,
grant privilege to all psychotherapists. It is federal law that provides and sup-
ports privilege for medical doctors and psychologists (Remley and Herlihy,
2014). It is important for each practitioner to know the answers to these
questions as defined within the state in which they practice. Exercise 9.1 is
provided to assist in this process.

Exercise 9.1

A Question of Privilege?

Directions: As suggested in the text, the nature of privileged commu-
nication can vary state by state. Contact either your state professional
organization or the state board of professional affairs and gather infor-
mation to answer the following questions:

• Who can claim privileged communication, or under what condi-
tions can privilege be claimed?

• What types of communications are covered by privilege?

• Which professions and professionals have privilege?

• What are the limitations to privilege?

• What constitutes a waiver of privilege?

● CONFIDENTIALITY ACROSS THE PROFESSIONS

The provision of confidentiality is common throughout human service pro-
fessions and is widely held as a therapeutic necessity. All professional organi-
zations address the issue of confidentiality (see Table 9.1). While the specific
wording varies, the principle of confidentiality articulated by the various pro-
fessional organizations all reflect the fundamental values underlying ethical

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Chapter 9. Confidentiality–●–219

Table 9.1 Confidentiality

Professional Ethical
Standards Statement on Confidentiality

American
Psychological
Association (2010)

4.01.

Psychologists have a primary obligation and take reasonable
precautions to protect confidential information obtained through
or stored in any medium, recognizing that the extent and limits
of confidentiality may be regulated by law or established by
institutional rules or professional or scientific relationship.

National Association
of Social Workers
(2008)

1.07. Privacy and confidentiality

c. Social workers should protect the confidentiality of all
information obtained in the course of professional service, except
for compelling professional reasons. The general expectation that
social workers will keep information confidential does not apply
when disclosure is necessary to prevent serious, foreseeable,
and imminent harm to a client or other identifiable person. In
all instances, social workers should disclose the least amount of
confidential information necessary to achieve the desired purpose;
only information that is directly relevant to the purpose for which
the disclosure is made should be revealed.

American
Counseling
Association (2014)

B.1.b. Respecting client rights

Counselors respect the privacy of prospective and current clients.
Counselors request private information from clients only when it is
beneficial to the counseling process.

B.1.c. Respect for confidentiality

Counselors protect the confidential information of prospective
and current clients. Counselors disclose information only with
appropriate consent or with sound legal or ethical justification.

American
Association for
Marriage and Family
Therapy (2015)

Section 2. Confidentiality

Marriage and family therapists have unique confidentiality concerns
because the client in a therapeutic relationship may be more than
one person. Therapists respect and guard the confidences of each
individual client.

practice. With the primary purpose of confidentiality being the protection
of client privacy and the placing of control over shared information in their
hands, our adherence to confidentiality shows our genuine valuing of client
autonomy, right of self-determination, and our commitment to beneficence.

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220–●–ETHICAL PRACTICE IN THE HUMAN SERVICES

Neither confidentiality nor privilege is an absolute. Since both are in
place in support of the protection of the client, not the helper, both can be
waived by the client. Beyond client waiver, conditions exists that limit the
degree to which communications can be maintained as confidential. Condi-
tions such as those dictated by local laws and organizational regulations as
well as situations in which a client or an identifiable person might be harmed
should confidentiality be maintained necessitate the breaching of confiden-
tiality and priv ilege. These conditions and other complicating factors are
discussed in the next section.

● LIMITS AND SPECIAL CHALLENGES TO CONFIDENTIALITY

Since confidentiality is not an absolute, in addition to respecting the confi-
dentiality of the client’s information, the ethical professional is directed by
standards of practice to inform the client, when appropriate, of the limits of
confidentiality. The Code of Ethics for Social Workers (2008), for example,
states, “Social workers should inform clients, to the extent possible, about
the disclosure of confidential information and the potential consequences,
when feasible before the disclosure is made” (NASW, 2008, 1.07.d).

It is essential that the professional helper explicate the restrictions on
confidentiality and assist the client to understand the unique conditions
under which information may be shared in the course of providing service.
The American Psychological Association’s (APA) code of ethics states that
disclosure of the limits of confidentiality should occur at the outset of a
professional relationship: “Unless it is not feasible or is contraindicated, the
discussion of confidentiality occurs at the outset of the relationship and
thereafter as new circumstances may warrant” (APA, 2010, Standard 4.02.b).

Beyond the client’s consent to waive privilege or disclose confidential
material, the courts and the various professions have identified a number
of conditions under which dis closure of this information may be required.
These conditions include sharing for profes sional support when a client is a
danger to self or others, in child abuse situations, and when court ordered.

Since breach of confidentiality may be mandated in these and other cir-
cumstances, clients should be adequately informed about the limitations of
confidentiality early within the relationship (see Chapter 8). Once informed,
it becomes the client’s responsibility to share such personal information,
knowing that confidence may not be maintained.

The ethical professional will maintain that breach of confidentiality is
such a strong issue that the basis needs to be strong and justifiable. Further,
because a breach of confi dentiality that is outside of these conditions may

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Chapter 9. Confidentiality–●–221

make the professional susceptible to legal and ethical sanctions, ranging
from sanctioning by the professional organization to a mal practice suit, it is
essential for the practitioner to be fully versed in the laws and ethical stan-
dards existing for his or her profession and in his or her state of practice.

Professional Support

It is generally accepted that confidential material may be shared with
colleagues and super visors for professional purposes. However, only that
material essential to the consultation or supervision should be disclosed.
Additionally, the conditions under which the informa tion is shared needs to
reflect the respect for client privacy and the attempt to maintain max imum
confidentiality. Case Illustration 9.2 demonstrates how in our day-to-day
professional interactions we may become somewhat insensitive to the condi-
tions under which we share confidential information.

Case Illustration 9.2

Faculty Room Chatter

Allison is a secondary-school counselor. She has been working with
Ricky, a twelfth-grade student who has been speaking with Allison
about his concern and anxiety over his sexual orientation. Ricky has
started to accept the fact that he is gay and has been working with
the school counselor to determine ways in which he can disclose this
information to his par ents. Because of the anxiety he has been feeling
and the amount of psychic energy he has been giving to this concern,
Ricky’s academic performance has fallen off quite dramatically.

Ricky is very concerned that his two honors teachers may feel that
he has simply stopped caring about their courses, and he would like
them to write him letters of recom mendation. Thus he asks Allison if
she will talk to the teachers about his personal strug gle, so that they
will better understand his falling grades. Ricky gives permission to dis-
close the information they have discussed, including his own coming
out.

Allison sets up a meeting with Mr. Hansen and Ms. Wallace, the
two honors teachers. She explains that she has been working with

(Continued )

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222–●–ETHICAL PRACTICE IN THE HUMAN SERVICES

Client as Danger to Self or Others

While it may be obvious that the ethical practitioner concerned for the
well-being of his or her client will break confidence if doing so can protect a
client from self-inflicted harm, what may not be as obvious is that a break in
confidence may be required as a way of tak ing reasonable care to protect oth-
ers who may be in jeopardy of harm at the hands of a client. The professional
obligation to warn a third party of a potential danger has been widely dis-
cussed, starting with the now famous case of Tarasoff v. The Regents of the
Uni versity of California (1976). In this case, the California Supreme Court
found a duty to warn and to protect an identifiable and foreseeable victim.
The case focused on Posenjit Poddar, the defendant charged with the 1969
killing of Tatiana Tarasoff. Tarasoff’s parents alleged that two months prior
to the murder, Poddar confided his intention to kill Tatiana to a psychologist
employed by the Cowell Memorial Hospital at the University of Califor nia at
Berkeley. The psychologist had Poddar detained by the campus police, but
Poddar was later released. No one warned Tarasoff of the possible peril to her
life. Following the appeal, the court ruled that a duty to warn existed, stating,

When a therapist determines, or pursuant to the standards of his pro-
fession should deter mine, that his [client] presents a serious danger
of violence to another he incurs an obliga tion to use reasonable care
to protect the intended victim against such danger. The discharge of
this duty may require the therapist to take one or more of various
steps, depending upon the nature of the case. Thus it may call for
him to warn the intended victim or others likely to apprise the victim
of the danger, to notify the police, or to take whatever other steps
are reasonably necessary under the circumstances. (Tarasoff, 1976)

Ricky and would like to share some information that may better help
them understand his current academic difficulty. Both teachers express
concern for Ricky and are glad to have the meeting. The three meet
at a table in the faculty lounge, where Allison begins to share the
information with both teachers with the intent of having them more
fully understand Ricky’s change in performance. While Allison is fully
aware that other teachers are in the room, she feels that if they speak
in a conversational tone that no one else will either overhear or care
to listen.

(Continued)

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Chapter 9. Confidentiality–●–223

The courts in this situation concluded the following:

Public policy favoring protection of the confidential character of
[client], psychotherapist communication must yield to the extent to
which disclosure is essential to avert dangers to others. The protective
privilege ends where the public peril begins. (Tarasoff)

This case has served as the foundation for the concept of duty to warn,
making men tal health professionals responsible for assessing the risk of
danger that their clients may present to others and assessing the need to
breach confidentiality and to warn. Legal exten sions of the Tarasoff case
are presented later within this chapter. One special arena in which Tarasoff
continues to be debated is in working with clients with HIV/AIDS. For
example, the American Counseling Association (ACA) notes, “The general
requirement that counselors keep information confidential does not apply
when disclosure is required to protect clients or identified others from seri-
ous and foreseeable harm or when legal requirements demand that confiden-
tial information validity of an exception” (ACA, 2014, B.2.a). Further, “when
clients disclose they have a disease commonly known to be communicable
and life threatening, counselors may be justified in disclosing information to
identifiable third parties” (ACA, 2014, B.2.C).

Persons With AIDS

Traditional approaches to client confidentiality have certainly been chal-
lenged by the intro duction of the issue of AIDS and at-risk behaviors. Thanks
to advances in medical care, HIV infection has become a chronic life-threat-
ening condition, as opposed to the more rapidly fatal illness at the outset of
the AIDS epidemic. However, it remains a very serious medical condition,
and many state laws have been enacted to protect both the confidentiality of
HIV-infected individuals and the safety of their sexual partners (Koocher &
Keith-Spiegel, 2013). It is important for practitioners to remain current
regarding medical data, treatments, transmission risks, interventions, and
state laws regarding professional interactions with HIV patients.

Given the discrimination that individuals with HIV have faced, confiden-
tiality is an extremely important issue. Individuals with HIV may be hesitant to
seek needed treatment without the assurance of confidentiality (Koocher &
Keith-Spiegel, 2013). However, individuals with HIV who engage in unsafe
sexual practices or IV drug use and are unwilling to disclose that informa-
tion to their partners or use safe practices place the practitioner within the

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224–●–ETHICAL PRACTICE IN THE HUMAN SERVICES

ethical dilemma of if and when to break confidence in response to a duty
to protect (Alghazo, Upton, & Cioe, 2011). The APA (2000), as outlined in
a recommendation made by the HIV/AIDS Office for Psychology Education,
supports the presumption that “confidentiality on behalf of the client shall
be maintained except in extraordinary circumstances wherein individuals
are unwilling or incapable of reducing the risk of infection to sexual or
needle-sharing partners.”

While there have been attempts at apply the Tarasoff decision to
HIV-related cases, Webber (1999) found that approximately half of the
rulings provided support for maintaining confidentiality, whereas the other
half provided support for limited disclosure.

It appears that the application of Tarasoff principles to HIV cases is
variable at best. The extent to which Tarasoff is extended to situations
involving HIV appears to depend on statutory and case law, which varies by
jurisdiction. Given this variability in statutory and state law, it is essential for
the ethical practitioner to become familiar with the laws applicable to his
or her state and place of employment and thus to refer to legal precedent,
state statutes, and professional codes of ethics when attempting to resolve
the HIV disclosure dilemma (see Exercise 9.2).

Exercise 9.2

The Duty to Warn and Clients With AIDS

Directions: The application of Tarasoff to situations involving clients
with AIDS has not been clarified within the courts.

Part 1: Contact a professional in practice within your local community.
Pose the following questions to the professional and share your find-
ings with your classmates/colleagues.

• Are you familiar with the Tarasoff case?

• If you had a client who expressed an intention to seriously harm
an identifiable victim, what would you do? Has this ever hap-
pened in your practice?

• What would you do if your client, who had AIDS, was actively
engaged in unprotected sex with an identifiable partner? Has
this ever happened in your practice?

Part 2: Contact your state professional organization and ask for the
latest position on applying Tarasoff and the duty to warn in situations
involving a client who has AIDS or is HIV positive.

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Chapter 9. Confidentiality–●–225

The issue of disclosure and the duty to warn when in relation to working
with an HIV/AIDS client are not at all clear-cut. The professional’s response
certainly is a decision that needs to reflect the current position of her or his
profession and the directives of the local and federal courts. Exercise 9.3 is
presented to give you a “practitioner’s view” of this difficult area of profes-
sional decision-making.

Exercise 9.3

To Disclose or Not to Disclose?

Directions: Given the lack of clarity and directions regarding the issue
of disclosure and duty to warn in cases of working with clients with
HIV/AIDS, individual decisions and standards of colleagues are impor-
tant reference points for the practitioner attempting to make an ethi cal
decision. Contact at least two professionals currently working in your
particular profes sional arena and pose to them the questions in the fol-
lowing scenario. Record their responses and share your findings with
a colleague or a classmate in an attempt to identify the standard of
practice cur rently enacted within your locale.

Scenario: Assume you are working with a client who has admitted
having AIDS and engaging in unprotected sex. Further assume that the
client refused to give you consent to disclose this information.

• Would you warn the client’s spouse/partner?

• Would you warn the client’s current, live-in lover (assuming the
client was not married)?

• Would you warn individuals whom your client identified as
recent sexual partners?

• Would you warn individuals whom your client identified as hav-
ing sex with over the past 5 years?

• Would you continue to work with the client, if he or she refused
to begin to practice safe sex?

Mandated Reporting

The Child Abuse Prevention and Treatment Act (CAPTA) of 1974 defined
child abuse and neglect and set the standards for state mandatory reporting
laws. Amended in 2010 by the CAPTA Reauthorization Act, the existing

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226–●–ETHICAL PRACTICE IN THE HUMAN SERVICES

definition of child abuse and neglect was retained to include at a minimum,
“any recent act or failure to act on the part of a parent or caretaker which
results in death, serious physical or emotional harm, sexual abuse or exploi-
tation; or an act or failure to act, which presents an imminent risk of serious
harm.” Most states recognize four major types of maltreatment: neglect,
physical abuse, psychological maltreatment, and sexual abuse. Although any
of the forms of child maltreatment may be found separately, they can occur
in combination (U.S. Department of Health and Human Services, Adminis-
tration for Children and Families, Administration on Children, Youth and
Families, Children’s Bureau, 2016). Under these conditions, disclosure is
mandated. And even though our codes of ethics direct us to value clients’
autonomy and respect for their decision-making, laws governing mandated
reporting override this value of autonomy, especially when applied to
minors who are in danger of harm by others, to others, or to self (Sheperis,
Henning, & Kocet, 2016). In fact, while professional standards direct the
practitioner to protect the information dis closed within the helping pro-
cess, breaking the law by not complying with a legal mandate to report is
in itself unethical. The APA code of ethics (2010), for example, states that
“psychologists disclose confidential information without the consent of the
individual only as mandated by law, or where permitted by law for a valid
purpose” (Standard 4.05.b). The tension and conflict between professional
values and standards with legal requirements are not easy to resolve. But, as
with any ethical dilemma, addressing the issue of mandated reporting can
be approached by the employment of a solid decision-making model (see
Chapter 7) and by consulting with a colleague about the situation. The use of
consultation and ethical decision-making models for the purpose of mandat-
ing reporting is recommended in several ethical codes (Henderson, 2013).

Records: Court Ordered

All professional codes of conduct provide for the maintenance and
utilization of records as well as the maintenance of privacy of these records
(see Chapter 12). Records should be maintained in a secure manner in order
to protect the client’s confidentiality. Failure to maintain adequate records
may be seen as a breach of the standard of care and thus serve as a basis for
a malpractice suit (Anderson, 1996).

In the case of educational records, confidentiality is protected under fed-
eral law, the Family Educational Rights and Privacy Act (FERPA) (1974). This
law applies to any educational agency (public or private) receiving federal
funds. It specifies that parents have access to student education records and
that any release of educational records requires parental or student (if over 18)

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Chapter 9. Confidentiality–●–227

written consent. Without consent, only “directory information,” limited
to name, address, telephone, date of birth, major, and date of attendance,
is released. This is not an open-file policy. Some records, such as those
maintained by a physician, psychiatrist, psychologist, or other recognized
pro fessional or paraprofessional acting in his or her professional and parapro-
fessional capac ity, are made, maintained, or used only in connection with the
provision of treatment to the student. These are not available to anyone other
than persons providing such treatment (20 U.S.C., sec. 1232[a][4][B]).

While records, including educational records, may be requested by vari-
ous agencies or legal professionals, the only request to which the practitio-
ner must respond without client consent is one issued in the form of a court
order. Often records are requested by insurance companies or others in legal
proceedings, often in the form of a subpoena. And while it is important for a
mental health specialist to respond to a subpoena, the response can be in the
form of a request. Rather than disclosing the information requested, a helper
can request that the agency or individual seeking the information obtain a
signed release of information from the client. However, if a practitioner is
issued a duces tecum subpoena—a court order—then the practitioner must
appear in court and bring the client’s records. Under this condition, a claim
of privilege could be offered at the court and would require the court to
either honor the privilege or demand a breach.

Another condition in which a breach of confidentiality and privilege
may occur is when a client files a lawsuit or ethical grievance against the
practitioner. Under these con ditions, the practitioner has a right to reveal
relevant information about the client in his or her own defense. One final
area in which release of information may invite a breach of confidentiality
is in the case of providing information for insurance claims. Clients need to
be informed that information released to insurance companies for the pur-
pose of third-party payment may remain within their records. Typically, the
information required includes the client’s name, services provided, dates of
services, and a diagnosis. The importance of this fact is that once these data
are conveyed to the insurance company, the practitioner will no longer have
control over access to these records and thus cannot restrict to whom they
are given or how the information is used.

Confidentiality and Working With Minors

Although children and adolescents increasingly have been granted
rights to free choice, informed consent and privileged communication in
counseling these issues remain complex in practice and often confusing
to practitioners. Behnke & Warner (2002) noted that, while minors cannot

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consent to treatment, a parent or guardian consents on the minor’s behalf.
However, there are some exceptions. These authors noted that certain states
allow minors whom the law deems especially mature, such as those who are
married or in the armed services, to consent to treatment, and sometimes
minors may consent to treatment for substance abuse or sexually transmitted
diseases. However, it is important to note that these exceptions are few and
that generally one must be 18 years or older to be considered sufficiently
mature to provide informed consent and with it the benefits of engaging in
a confidential therapeutic relationship. Even with this proviso regarding the
restrictions on confidentiality when working with minors, the ethical prac-
titioner will do well in gaining informed “assent” from minors prior to the
release of information.

The ACA Code of Ethics (2014) directs its members to inform clients
(including minor clients) consistent “with their level of understanding
and take culturally appropriate measures to safeguard client confidential-
ity” (Principle B.5.c). Further, the ACA codes (2014) direct counselors
“When counseling minor clients or adult clients who lack the capacity to
give voluntary, informed consent, counselors protect the confidentiality of
information received in the counseling relationship as specified by federal
and state laws, written policies and applicable ethical standards (ACA, 2014,
Principle B.5.a).

For those working with minors in a school setting, the minors’ rights to
confidentiality are protected by the Family Educational Rights and Privacy
Act (2015). While this act provides for access by parents to student records,
it also exempts counselor notes, assuming that they are not considered part
of the official school record. Because this final designation of “official school
record” is open to the interpreta tion of each school district, counselors
should be aware of their own districts’ policies regarding counselor notes
and minor confidentiality.

All states have laws that permit minors to consent to treatment for some
conditions, such as alcohol and drug abuse, venereal disease, pregnancy, and
sexual health. While some states prohibit disclosure to parents, some leave
this to the practitioner’s discretion, and others require disclosure under
certain circumstances. The Center for Adolescent Health and the Law pub-
lished a compendium of state laws that address confidentiality and consent
(English & Kenney, 2003). The rationale is such that right to privacy and
freedom to choose increases the likelihood that children and adolescents
needing counseling will seek it. Because of the variation from state to state
and the ever-shifting legal landscape, it is important for all practitioners to
check with their state professional organizations to align with local practice
regulations.

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Chapter 9. Confidentiality–●–229

Confidentiality in the Technological Era

In an age when people may use digital technology to communicate more
than face-to-face interactions, practitioners need to be cognizant of the use
of such items as e-mail, texting, and fax machines and possible breaches in
confidentiality. Many professional codes of ethics have started to include use
of technology in their codes. The ACA Code of Ethics has an entire section
devoted to distance counseling, technology, and social media (2014). The
section cites the client as having the “freedom to choose whether to use
distance counseling, social media and/or technology within the counseling
process” (ACA, 2014, H.2.a). In addition, issues are addressed in which the
practitioner is aware of and discusses “limitations of maintaining confiden-
tiality of electronic records and transmissions” with the client (ACA, 2014,
H.2.b; H.2.c).

LEGAL DECISIONS: CONFIDENTIALITY AND
PRIVILEGED COMMUNICATIONS

Professionals With Privilege

Psychotherapist-client privilege has been supported by a Supreme Court
decision. The case involved the ability of a clinical social worker licensed
in Illinois to assert privilege for communications between herself and her
client in a lawsuit. The client, Mary Lu Redmon, was a police officer who
killed Ricky Allen Sr. The officer responded to a reported fight and found
Mr. Allen allegedly poised to stab another individual. The lawsuit brought
against Officer Redmond, the City of Hoffman Estates, and its police depart-
ment by Car rie Jaffee, the administrator of the Allen estate, alleged that
excessive force had been used. In the course of the legal proceedings, the
family petitioned to obtain notes made by the therapist in counseling ses-
sions with Officer Redmond after the incident. Redmond refused to provide
consent, and the therapist refused to respond by providing notes. The judge
in that case informed the jury to assume that the notes were unfavorable, and
the jury found for the plaintiff. On appeal in the U.S. Court of Appeals for
the 7th Circuit, the jury verdict was thrown out and the case was remanded
for a new trial with the court opinion stating the trial court had erred by not
protecting the confidentiality of the records. Jaffee appealed this decision
to the U.S. Supreme Court, which in a ruling in Jaffee v. Redmond (1996)
upheld a strict standard of privileged communication. This decision upheld

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230–●–ETHICAL PRACTICE IN THE HUMAN SERVICES

the ability of licensed psychotherapists to maintain the confidences of their
clients in federal court cases.

While the Jaffee v. Redmond ruling directly applies only within the
federal court system, it does extend psychotherapist privilege to another
group of licensed professionals, clinical social workers. Many believe that
opens the door to the extension of that privilege to other mental health pro-
fessionals. Each state has laws that govern the conditions and the relation-
ships under which a communication is considered privileged. As such, each
practi tioner should check on the specific laws and court rulings defining the
conditions of privi lege for practitioners within their state of employment.

Extending the Duty to Protect

While the release of educational records under the conditions set forth
in the FERPA generally require the informed consent of the parent or the
student, if over 18, the need to breach confidence appears to extend to situ-
ations involving school counseling when the client appears to be in danger
of harming himself or herself. In a court case, Eisel v. Board of Education
of Montgomery County (1991), the Maryland Court of Appeals applied the
duty to violate confidentiality to school counselors if a client is judged to
be at risk for self-harm. In this case, a child threatened suicide in the pres-
ence of schoolmates. These schoolmates told both the parents of the child
and the school counselor. The counselor interviewed the child, who denied
the threat. The counselor did not follow up or notify the parents or school
adminis tration. The father sued the counselors and the school following the
child’s suicide, alleg ing breach of duty to intervene to prevent the suicide,
and the court found in favor of the plaintiff (Anderson, 1996).

Extending Tarasoff

There have been many court cases that have used the Tarasoff rul-
ing to find a “duty to warn.” These court cases have attempted to further
clarify the elements of foreseeable danger and identifiable victim. While
the specifics of what defines foreseeable danger are still being debated, the
courts have generally upheld that such foreseeable danger is present when
there is a readily identifiable victim and the pre diction of danger is based on
professional standards, such as the existence of death threats, possession of
a weapon, and the individual’s having a clear plan of action. In Emerich v.
Philadelphia Center for Human Development (1996), the Pennsylvania

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Chapter 9. Confidentiality–●–231

Supreme Court held that, based upon the special relationship between a
mental health professional and his or her patient, when the patient has
communicated to the professional a specific and immediate threat of seri-
ous bodily injury against a specifically identified or readily identifiable third
party, and the professional determines that his or her patient presents a seri-
ous danger of violence to the third party, then that professional bears a duty
to exercise reasonable care to protect by warning the third party against
such a danger (Tepper & Knapp, 1999). Several subsequent court decisions
have expanded and clarified the duty to warn and protect from dangerous
clients. For example, victims who are not specifically identified by the client
but who could be considered foreseeable, likely targets of client violence
(such as individuals in close proximity to an identifiable victim) should
be warned according the ruling of Hed lund v. Superior Court of Orange
County (1983) and Jablonski Pahls v. United States (1983).

Other court cases have extended this duty to warn even when the
victim is not clearly identifiable. In Lipari v. Sears, Roebuck & Co. (1980),
the court ruled that the therapist failed in the duty to protect others by not
detaining a potentially violent client who had pur chased a gun, even though
no identifiable victim was named. And in a Vermont Supreme Court ruling
in 1985 (Peck v. Counseling Services of Addison County), the Tarasoff duty
to warn was extended to cases involving property—and not just personal-
injury. In this case, the client was viewed as posing a serious risk of danger
in that the client’s intent of arson represented a “lethal threat to human
beings who may be in the vicinity of the con flagration” (Peck v. Counseling
Services of Addison County, 1985).

Keeping client rights in the forefront while considering the safety of
third parties who may potentially be harmed, counselors need to consider
how they will warn or protect within the confines of sound clinical judg-
ment (Buckner & Firestone, 2000). Making use of consultations and second
opinions when threats of violence occur as well as implementing an increase
of therapy sessions are strategies to be considered when there are threats of
violence (Buckner & Firestone, 2000).

Protecting the Practitioner

Violations of confidentiality and privilege are determined by statutes,
court decisions, and professional codes of ethics. These violations may be
responded to with criminal action, civil action, and/or professional sanction-
ing. However, because of the increasing court support for breach of confi-
dentiality in the protection of others (identified or not), many confidentiality

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232–●–ETHICAL PRACTICE IN THE HUMAN SERVICES

and privilege violations have legislation protecting mental health profession-
als from civil liability if they issue warnings in attempts to protect others
from potential harm. The protection rests in the fact that such reporting
is often mandated by the state. Moving the breach of confidentiality from
permissive to mandatory protects the therapist from both civil and criminal
liability, if they act in good faith (National Conference of State Legislatures,
2015). Because laws vary across the states, it is essential for the ethical
helper to understand the laws existing in his or her state of employment that
govern such disclosures and such protection.

● BEYOND PROFESSIONAL STANDARDS:
A PERSONAL MORAL RESPONSE

As noted, confidentiality is essential to the nature of a helping relationship.
Clients need to feel safe within the helping relationship and trust that their
disclosures will be held in con fidence. The ethical principle of confidenti-
ality is founded on the fundamental respect for a client’s privacy and the
helper’s concern for maintaining client welfare. This underlying respect for
privacy and the valuing of the welfare of the client need to be more than
simply the rationale for the ethical principle of confidentiality. Both need to
be personal values.

The ethical professional, who values client privacy and welfare, will
maintain that the breach of confidentiality is such a strong issue that the
basis needs to be strong and justifiable. However, even with this as a per-
sonal value, balancing client need, professional ethics, and legal mandate is
not always easy or clear. Thus it is essential for each ethical practitioner to
keep current on the profession’s stance and application of ethical principles
and the laws governing practice and practice decisions. Specifically, each
practitioner should commit to

• Knowing state laws mandating reporting or breaching of confidence

• Understanding thresholds and criteria for breach of confidence

• Providing disclosure to clients regarding the limitations to
confidentiality

• Keeping thorough and detailed records

• Seeking consultation before disclosure

• Maintaining current knowledge of legal and ethical decisions guiding
the disclosure of information

• Seeking ongoing education on the issue of confidentiality and its limits

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Chapter 9. Confidentiality–●–233

Finally, fear of litigation or concerns about adhering to legal mandates can
serve as the motivation for committing to each of the above. However, the
ethical professional, one who has assimilated the ethical principle as per-
sonal value, will hold client well-being and welfare as the motive for such
a commitment. A similar concern for the client’s welfare can serve as the
guiding light for all practice decisions regarding disclosure.

CONCLUDING CASE ILLUSTRATION ●

We began the chapter with Maria, the client in our ongoing case, giving
Ms. Wicks, the counselor, permission to talk with Ms. Armstrong about
her case. As you read the continuation of the dialogue, review Ms. Wicks’s
behavior as it reflects or fails to reflect the principles discussed within this
chapter. Further, a number of brief questions are presented as a stimulus
for the application of your knowledge regarding principles guiding confi-
dentiality and its limitations.

Maria: It’s okay. You can talk to Ms. Armstrong as long as you don’t tell
her who I am. I don’t want anyone knowing what I told you.
Besides, I thought talking to you was like talking to a priest in
confession . . . you know, a major secret?

Ms. Wicks: Thank you for the permission to speak with Ms. Armstrong.
Maria, I certainly don’t want to break your confidence or reveal
private conversations we may have had, but your welfare and
your well-being are my primary concern, and I want to do all that
I can do to keep you safe.

Maria: But you gotta promise me you ain’t gonna tell her who I am.

Ms. Wicks: Remember the first day we met? I know you were angry and
really didn’t want to speak with me. But after a while you
seemed to relax, and you started to share some of your story.
Well, when we had that meeting, I told you that things we spoke
about would be kept private. In fact, I said I wouldn’t share
information without your permission.

Maria: Yeah, I remember that . . . that’s what I mean . . . you can’t tell
no one. . . .

Ms. Wicks: I’m glad you remember that. Maybe you also remember me
saying that, while I will respect your privacy, some things just

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234–●–ETHICAL PRACTICE IN THE HUMAN SERVICES

can’t be private or confidential. I said if you are thinking about
hurting yourself. . . .

Maria: I am not going to hurt myself . . . I know you said that, but it was
no big deal, since I knew I wasn’t planning on hurting myself. .
. .

Ms. Wicks: Again, I am glad you remember that and I’m happy that you
aren’t think ing that you would like to hurt yourself. But, I also
said that if you were thinking about hurting someone else that I
may have to inform that person so that they could be protected
and you would be safe, as well. Do you remember that?

Maria: Yeah . . . but, I’m not sure what this has to do with anything,
now?

Ms. Wicks: Well, even though you are telling me that you have no intention
of hurting yourself, I am very concerned that having unprotected
sex with your boyfriend, who has AIDS, is endangering your life.
And the truth is, I am not sure what I am supposed to do with
this information. You know I want you to stop, ’cause I care
about you. I’m just not sure if I have to tell someone else for legal
reasons.

Maria: Legal reasons . . . it’s my life. . . .

Reflections

1. Does Ms. Wicks give evidence of providing Maria with the limits to
confidentiality early within the sessions?

2. In addition to discussing with a colleague and the principal, what else
would you suggest Ms. Wicks do?

3. What would you do? Do Maria’s actions constitute a basis for breach-
ing confidence?

4. If Maria refuses to refrain from engaging in unprotected sex with her
boyfriend, should Ms. Wicks continue to work with her? Would you?

● COOPERATIVE LEARNING EXERCISE

The purpose of this chapter was not only to introduce you to concepts of
confidentiality and privileged communications but also to introduce you to
the many elements complicating decisions to maintain or breach confidenti-
ality. Translating theory to practice is not always an easy process.

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Chapter 9. Confidentiality–●–235

Directions: Contact two professionals operating in one of the following
roles and ask them the questions that are listed below. Discuss your findings
with a supervisor, col league, or classmate, looking for common approaches
shared across professions:

• School counselor

• Licensed marriage and family therapist in private practice

• A mental health counselor

• A clinical social worker currently employed with a county agency

• A therapist who does custody evaluations in divorce cases

Questions:

1. When meeting with a new client, do you explain the concept of con-
fidentiality? If so, do you also describe the limits to confidentiality or
the conditions under which con fidentiality may be breached? How
do you present these issues?

2. Have you ever had your records subpoenaed? How did you
respond?

3. Have you ever had a situation in which you believe a duty to warn
existed? If so, what did you do? If not, what do you think you would
do?

4. If you work with minors, how do you address the issue of confiden-
tiality with them? With their parents?

5. In your professional role, do you have privilege? If so, have you ever
called on privilege as a basis for not disclosing client information?

SUMMARY ●

• Confidentiality is the general standard of professional conduct that
obligates a professional not to discuss information about the client
with anyone.

• Privileged communication is a legal term that describes the quality
of certain specific types of relationships that prevent information
acquired from such relationships from being disclosed in court or
other legal proceedings.

• Questions about who can claim the privilege, what type of informa-
tion is privileged, and the limitations to privileges can vary extensively
from state to state.

• Most human service professionals believe that without compelling
reasons to breach it, confidentiality must be protected. Compelling

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236–●–ETHICAL PRACTICE IN THE HUMAN SERVICES

reasons for breaching confi dence include preventing serious, foresee-
able, and imminent harm to a client or other identifiable person, and
when laws or regulations require disclosure without a client’s consent.

• The Jaffee v. Redmond (1996) ruling extends psychotherapist privi-
lege to another group of licensed professionals: clinical social work-
ers. Many believe that this opens the door to the extension of that
privilege to other mental health professionals.

• In Eisel v. Board of Education of Montgomery County (1991), the
Maryland Court of Appeals applied the duty to violate confidentiality
to school counselors if a client is judged to be at risk for self-harm.

• Several subsequent court decisions have expanded and clarified the
duty to warn and protect from dangerous clients (see Hedlund v.
Superior Court, 1983; Jablonski Pahls v. United States, 1983; Lipari
v. Sears, Roebuck & Co., 1980).

• Peck v. Counseling Services of Addison County (1985) expanded
on Tarasoff to include the duty to warn in cases involving threat to
property and not just personal injury.

• The ethical principle of confidentiality is founded on the fundamental
respect of a client’s privacy and the helper’s concern for maintaining
client welfare. It is essential for each ethical practitioner to embrace a
value of client welfare and keep current on the profession’s stance on
and application of ethical principles and the laws governing practice
and practice decisions.

● IMPORTANT TERMS

breach Family Educational Rights and
Privacy Act (FERPA)
Child Abuse Prevention and
Treatment Act of 1974 foreseeable danger

client waiver identifiable victim

confidentiality imminent danger

constitutional privileged communications

court order protected relationships

duces tecum subpoena right to privacy

duty to warn Tarasoff

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Chapter 9. Confidentiality–●–237

ADDITIONAL RESOURCES ●

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VandeCreek, L., & Knapp, S. (2001). Tarasoff and beyond: Legal and clinical con-
siderations in the treatment of life-endangering patients. Sarasota, FL, Profes-
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Wheeler, A. M. N., & Bertram, B. (2012). The counselor and the law: A guide to
legal and ethical practice (6th ed.). Alexandria, VA: American Counseling
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Web-Based

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Koocher, G. P., & Keith-Spiegel, P. (2013). “What should I do?”—39 ethical dilemmas

involving confidentiality. [Continuing Ed Courses on the Internet]. Retrieved
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Ostrowski, J. (2014). HIPPA compliance: What you need to know about the new
HIPAA-HITECH rules. Retreived from http://www.nbcc.org/assets/HIPPAA
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Chapter 9. Confidentiality–●–239

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the 21st century counselor. Thousand Oaks, CA: Sage.
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1976).
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warn third party victims. The Pennsylvania Psychologist Quarterly, 8, 29.
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(FERPA). http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html
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5320 U4 D1 Confidentiality and Practice

After reading the chapter in your textbook about confidentiality, in your initial post
discuss the differences between confidentiality, privileged communication, and
the right to privacy. Provide one example of a situation that illustrates each of
these concepts. Include references to one or more professional codes of ethics
that apply to the concepts. Discuss the limits of confidentiality when there is a
potential threat of harm to self or others, and how these limitations are
communicated to a client.

NOTE: 250-300 Words and at least 1 scholarly journal

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