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 “is 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
Issues and Ethics - Chapter 6 (1)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
Canadian Privacy Act
The Privacy Act is Canadian federal legislation that came into effect on July 1, 1983.The act sets out
rules for how institutions of the federal government must deal with personal information of individuals.
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.
With some exceptions, when a government institution collects an individual's personal information from
the individual, it must inform the individual of the purpose for which the information is being collected.
With some exceptions, 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,
unless the individual consents (section 7).
With some exceptions, personal information under the control of a government institution may not be
disclosed, 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, and request correction if the information is inaccurate
The Privacy Commissioner of Canada receives and investigates complaints, including complaints that an
individual was denied access to his or her personal information held by a government institution
Wikipedia, 2010
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
Protecting Confidentiality Rights
Fisher’s (2008) 6-step ethical practice model for
protecting 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
Issues and Ethics - Chapter 6 (2)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
Corey, 8e, ©2011, 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 - Chapter 6 (3)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
Privacy Issues With Telecommunication
Devices
Do not acknowledge that clients are receiving
services or give out information regarding clients to
unknown callers.
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.
Be aware that there is no way to prevent your
conversation from being recorded or monitored by an
unintended person.
Be professional and cautious in talking about
confidential information over the telephone; avoid
saying anything off the record.
Issues and Ethics - Chapter 6 (4)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
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.
Do not allow unauthorized persons to hear answering
machine messages in your office as they are being left or
retrieved.
If you use voice mail or an answering service, ensure that
your access codes are not disclosed to unauthorized persons.
When you leave a message on an answering machine, be
aware that the intended person may not be the one who
retrieves your message.
Issues and Ethics - Chapter 6 (5)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
Privacy Issues With
Telecommunication Devices
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 a pager or a cell phone to send text messages,
exercise caution. 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 voice mail
message.
Issues and Ethics - Chapter 6 (6)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
Implications of HIPAA for Mental
Health Providers
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.
◦ 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 - Chapter 6 (7)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
Personal Information Protection and
Electronic Documents Act (PIPEDA or PIPED Act)
a Canadian law relating to data privacy. It governs how private-
sector organizations collect, use and disclose personal
information in the course of commercial business. In addition,
the Act contains various provisions to facilitate the use of
electronic documents. PIPEDA became law on 13 April 2000 to
promote consumer trust in electronic commerce.
PIPEDA incorporates and makes mandatory provisions of the
Canadian Standards Association's Model Code for the
Protection of Personal Information, developed in 1995.
"Personal Information", as specified in PIPEDA, is as follows:
information about an identifiable individual, but does not
include the name, title or business address or telephone number
of an employee of an organization.
Wikipedia, 2010
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
PIPEDA
The law gives individuals the right to
know why an organization collects, uses or discloses their personal information;
expect an organization to collect, use or disclose their personal information reasonably and
appropriately, and not use the information for any purpose other than that to which they have
consented;
know who in the organization is responsible for protecting their personal information;
expect an organization to protect their personal information by taking appropriate security
measures;
expect the personal information an organization holds about them to be accurate, complete and
up-to-date;
obtain access to their personal information and ask for corrections if necessary; and
complain about how an organization handles their personal information if they feel their privacy
rights have not been respected.
The law requires organizations to
obtain consent when they collect, use or disclose their personal information;
supply an individual with a product or a service even if they refuse consent for the collection,
use or disclosure of your personal information unless that information is essential to the
transaction;
collect information by fair and lawful means; and
have personal information policies that are clear, understandable and readily available.
Wikipedia, 2010
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
Duty to Protect Potential Victims
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:
1. Identify clients who are likely to do physical harm to
third parties
2. Protect third parties from clients judged potentially
to be dangerous
3. Treat those clients who are dangerous
Issues and Ethics - Chapter 6 (9)
Corey, 8e, ©2011, Brooks/ Cole –
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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
Issues and Ethics - Chapter 6 (10)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
Legal Precedents
Tarasoff Case, pg 231
◦ duty to warn of harm to self or others
◦ duty to protect
Bradley Case, pg 234
◦ duty not to negligently release a dangerous client
Jablonski Case, pg 234
◦ duty to commit a dangerous individual
Issues and Ethics - Chapter 6 (11)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
Legal Precedents
Hedlund Case, pg 234
◦ extends duty to warn to anyone who might be near the
intended victim and who might also be in danger
Jaffee Case, 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 - Chapter 6 (12)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
Risk Management Guidelines:
Cases of Duty to Warn/ Protect
Consult with an attorney if you are not clear about your
legal duty.
Inquire about a client’s access to weapons, homicidal
ideation, and intentions, which would include whether a
specific victim is involved.
Consider all appropriate steps to take and the
consequences of each.
Know and follow the policy of your institution.
Document all actions you take and the rationale behind
each of your decisions.
Issues and Ethics - Chapter 6 (13)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
School Counselor Liability for
Student Suicide
Counselors need to educate school employees, especially teachers,
about the risk factors associated with adolescent suicide.
Counselors might institute peer assistance programs to help
identify students at risk for suicide.
It would be useful for school counselors to have increased access
to training programs geared to acquiring information about
student suicide.
Issues and Ethics - Chapter 6 (14)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
School Counselor Liability for
Student Suicide
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.
Professional journals and professional conferences need to
continue highlighting the issue of student suicide.
Counselor education programs need to better prepare future
school counselors to recognize students at risk for suicide.
Issues and Ethics - Chapter 6 (15)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
Guidelines for Assessing
Suicidal Behavior
Take direct verbal warnings seriously.
Pay attention to previous suicide attempts.
Identify clients suffering from depression.
Be alert for feelings of hopelessness and helplessness.
Monitor severe anxiety and panic attacks.
Ascertain whether there has been a recent diagnosis of a serious or
terminal health condition.
Issues and Ethics - Chapter 6 (16)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
Guidelines for Assessing
Suicidal Behavior
Determine whether the individual has a plan.
Identify clients who have a history of severe alcohol or drug
abuse.
Be alert to client behaviors (e.g. giving prized possessions away,
finalizing business affairs, or revising wills).
Determine the history of psychiatric treatment.
Issues and Ethics - Chapter 6 (17)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
Protecting Children, the Elderly, and
Dependent Adults From Harm
Mandatory reporting
◦ designed to encourage reporting of any suspected cases of child,
elder, or dependent adult abuse; thus, therapists are advised to
err on the side of reporting in uncertain circumstances.
◦ If children, the elderly, or other dependent adults disclose that
they are being abused or neglected, 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.
Issues and Ethics - Chapter 6 (18)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
Types of Elder Abuse
Physical abuse
Sexual abuse
Psychological or emotional abuse
Neglect
Abandonment
Financial or material exploitation
Issues and Ethics - Chapter 6 (19)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
Ethical Guidelines for Disclosure
of a Client’s HIV Status
Counselors may be justified in disclosing information to a
third party who is at risk, 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
Issues and Ethics - Chapter 6 (20)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
Recommendations to Professionals
Who Counsel HIV Clients
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
Issues and Ethics - Chapter 6 (21)
Corey, 8e, ©2011, Brooks/ Cole –
Cengage Learning
