By Zur Institute
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Privacy, Confidentiality & Privilege: Privacy, confidentiality, and privilege are different, but related concepts that are of great importance to every mental health professional and those we serve. Privacy is a basic right granted to all our citizens; Confidentiality is an ethical concept pertaining to the psychotherapy relationship; and Privilege is a legal concept regarding who has the right to release confidential information.
Limits to confidentiality: While most of our clients believe that everything they share with their psychotherapist is confidential, a number of limits to confidentiality exist to include mandatory reporting requirements for suspected child abuse and neglect; vulnerable adult reporting requirements that may include suspected abuse, neglect, self-neglect, and exploitation of the elderly; and duty to warn and protect requirements regarding threats to harm others made in treatment.
Informed Consent: Just how we address the limits of confidentiality through the informed consent process is of great importance and has significant implications for how the therapeutic process transpires. Informed consent is not just a form to be signed; it is an ongoing process that should begin at the outset of therapy. The client must be competent to consent, consent must be given voluntarily, and we must ensure the client understands what s/he is agreeing to. This course includes and Informed Consent to Treatment form.
Minors, Families, and Groups: When working with minors, families, and groups, there are a number of special issues that must be addressed up front that concern confidentiality expectations. While minors may not legally be able to consent to their own treatment, we still must explain relevant treatment information to them in a manner they can understand. With families and groups, clients need to understand that one person cannot waive privilege for another.
Minors and Laws: Understanding the relevant state laws is important when working with children and adolescents since their confidentiality rights may vary depending on age, state, and other circumstances. In some jurisdictions minors over certain age may consent to their own treatment and decide who may have access to treatment information.
Office Practices: A thorough understanding of effective office practices is essential for preventing inadvertent breeches of confidentiality. Important steps include appropriate soundproofing, record storage and disposal practices, and the proper use of digital technologies. Equally important is training of staff not to release confidential information without specific authorization. See our Essential Clinical Forms.
Subpoena: While we must comply with a court order from a judge, psychotherapists do not necessarily need to comply with a subpoena. We also have the opportunity, through an attorney, to file a motion to quash a subpoena or to have a judge do an in-chambers review of records to see if they are relevant to the legal proceeding before ordering their release. Article on Subpoena, Online course on Subpoena.
Technology: The use of digital technologies in general and the practice of telemental health bring with it a number of important confidentiality challenges and concerns. Basic considerations, include, password protection and encryption, firewall, virus protection, access log, and of course, backup. (Our online Telehealth Course discusses confidentiality consideration in e-therapy.)
Social Networking: Modern day social networking and digital communications present psychotherapists with new challenges when it comes to confidentiality. Communication between clients and therapists via blogs, chats, and social networking may not be confidential and may seriously compromise patients' privacy. (See Confidentiality and Social Networking.)
Insurance and Managed Care: Working with insurance and managed care companies brings with it additional risks to clients' confidentiality that clients must be informed about. Understanding how insurance carriers may share and release information sent to them can have a great impact on how we document our services and just what we share with them.
Consultations: Consulting with experts can help you navigate the ethical and legal complexities of confidentiality and help you assure that you practice within the reasonable standard of care of your profession.