Codes Of Ethics Regarding
Competence And Limits Of Confidentiality
In Treatment Of Clients With HIV/AIDS
By Ofer Zur, Ph.D. and Tom Smith, Ph.D.
This page is part of an online course on Ethics of Working with Clients with HIV/AIDS for 10 CE Credit Hours.
Table Of Contents
- American Association of Marriage and Family Therapists, AAMFT
- American Counseling Association, ACA
- American Mental Health Counselors Association, AMHCA
- American Psychiatric Association, ApA
- American Psychological Association, APA
- California Association of Marriage and Family Therapists, CAMFT
- National Association of Social Workers, NASW
- National Board for Certified Counselors, NBCC
This document is a part of an online course on Ethics of Treatment of Clients with HIV/AIDS. It focuses on the sections of the Codes of Ethics of the major professional organizations that deal with issues of confidentiality and reporting as they related to limits of the confidentiality regarding harm due to infection to a third party. Ten major codes of ethics are discussed in this paper. The relevant sections of these codes to record keeping and informed consent will be presented and direct links to the codes online will be provided. Each section includes, when available, a direct quote from the code of ethics and annotation about its content.
Besides reviewing the sections on confidentiality and disclosures in the codes of ethics, the search of each code includes keywords, such as HIV, AIDS, disease, contagious, communicable, risk, danger and harm, competence, informed consent, client rights, written authorization, waivers, disclosure, third party payer disclosures, maintain adequate knowledge of laws and ethical codes, boundaries of competency, scope of competence, legal limits of confidentiality, abuse of authority and influence, documentation of informed consent and disclosures, and use of language understandable to the illiterate or uneducated.
Note: The bold lettering in the quotes from codes of ethics were added highlighted for the purpose of this paper and are not included in the original text. The notes in red italic are the authors’ reflections on each code.
American Association of Marriage and Family Therapist – AAMFT
Standard I Responsibility to Clients
1.2 Informed Consent. Marriage and family therapists obtain appropriate informed consent to therapy or related procedures and use language that is reasonably understandable to clients. When persons, due to age or mental status, are legally incapable of giving informed consent, marriage and family therapists obtain informed permission from a legally authorized person, if such substitute consent is legally permissible. The content of informed consent may vary depending upon the client and treatment plan; however, informed consent generally necessitates that the client: (a) has the capacity to consent; (b) has been adequately informed of significant information concerning treatment processes and procedures; (c) has been adequately informed of potential risks and benefits of treatments for which generally recognized standards do not yet exist; (d) has freely and without undue influence expressed consent; and (e) has provided consent that is appropriately documented.
1.8 Client Autonomy in Decision Making.Marriage and family therapists respect the rights of clients to make decisions and help them to understand the consequences of these decisions. Therapists clearly advise clients that clients have the responsibility to make decisions regarding relationships such as cohabitation, marriage, divorce, separation, reconciliation, custody, and visitation.
Standard II Confidentiality
2.1 Disclosing Limits of Confidentiality.Marriage and family therapists disclose to clients and other interested parties at the outset of services the nature of confidentiality and possible limitations of the clients’ right to confidentiality. Therapists review with clients the circumstances where confidential information may be requested and where disclosure of confidential information may be legally required. Circumstances may necessitate repeated disclosures.
2.2 Written Authorization to Release Client Information.Marriage and family therapists do not disclose client confidences except by written authorization or waiver, or where mandated or permitted by law. Verbal authorization will not be sufficient except in emergency situations, unless prohibited by law. When providing couple, family or group treatment, the therapist does not disclose information outside the treatment context without a written authorization from each individual competent to execute a waiver. In the context of couple, family or group treatment, the therapist may not reveal any individual’s confidences to others in the client unit without the prior written permission of that individual.
Standard III Professional Competence and Integrity
3.2 Knowledge of Regulatory Standards.Marriage and family therapists pursue appropriate consultation and training to ensure adequate knowledge of and adherence to applicable laws, ethics, and professional standards.
3.10 Scope of Competence.Marriage and family therapists do not diagnose, treat, or advise on problems outside the recognized boundaries of their competencies.
Note: AAMFT Code of Ethics does not mention any direct reference to AIDS, HIV, or to contagious or communicable disease. It does not refer to situations when clients are dangerous to others and only mentions that disclosures may be legally required.
American Counseling Association – ACA
B.2.a. Serious and Foreseeable Harm and Legal Requirements
The general requirement that counselors keep information confidential does not apply when disclosure is required to protect clients or identified others from serious and foreseeable harm or when legal requirements demand that confidential information must be revealed. Counselors consult with other professionals when in doubt as to the validity of an exception. Additional considerations apply when addressing end-of-life issues.
B.2.c. Contagious, Life-Threatening Diseases
When clients disclose that they have a disease commonly known to be both communicable and life threatening, counselors may be justified in disclosing information to identifiable third parties, if the parties are known to be at serious and foreseeable risk of contracting the disease. Prior to making a disclosure, counselors assess the intent of clients to inform the third parties about their disease or to engage in any behaviors that may be harmful to an identifiable third party. Counselors adhere to relevant state laws concerning disclosure about disease status.
ACA Code of Ethics of 2014 is one of the few codes that address the issue of contagious or communicable diseases, such as HIV/AIDS. Unlike almost all other codes it gives therapists some guidelines in regard to confidentiality and disclosures.
American Mental Health Counselors Association – AMHCA
I. Commitment to Clients
B. COUNSELING PROCESS
7. Clients’ Rights
b. To expect complete confidentiality within the limits of both Federal and state law, and to be informed about the legal exceptions to confidentiality; and to expect that no information will be released without the client’s knowledge and written consent.
i. To refuse any recommended services, techniques or approaches and to be advised of the consequences of this action.
8. End-of-Life Care for Terminally Ill Clients
a. Mental health counselors ensure that clients receive quality end-of-life care for their physical, emotional, social, and spiritual needs. This includes providing clients with an opportunity to participate in informed decision making regarding their end-of-life care, and a thorough assessment, from a qualified end-of-life care professional, of clients’ ability to make competent decisions on their behalf.
b. Mental health counselors are aware of their own personal, moral, and competency issues as it relates to end-of-life decisions. When mental health counselors assess that they are unable to work with clients on the exploration of end-of-life options, they make appropriate referrals to ensure clients receive appropriate help.
c. Depending upon the applicable state laws, the circumstances of the situation, and after seeking consultation and supervision from competent professional and legal entities, mental health counselors have the options of breaking or not breaking confidentiality of terminally ill clients who plan on hastening their deaths.
C: COUNSELOR RESPONSIBILITY AND INTEGRITY
g. Recognize the important need to be competent in regard to cultural diversity and are sensitive to the diversity of varying populations as well as to changes in cultural expectations and values over time.
m. Will actively attempt to understand the diverse cultural backgrounds of the clients with whom they work. This includes learning how the mental health counselor’s own cultural/ethical/racial/religious identities impact their own values and beliefs about the counseling process.
Section I. Commitment to Clients
A. COUNSELOR-CLIENT RELATIONSHIP
Mental health counselors have a primary obligation to safeguard information about individuals obtained in the course of practice, teaching, or research. Personal information is communicated to others only with the person’s consent, preferably written, or in those circumstances, as dictated by state laws. Disclosure of counseling information is restricted to what is necessary, relevant and verifiable.
c. The release of information without consent of the client may only take place under the most extreme circumstances: the protection of life (suicidality or homicidality), child abuse, and/ or abuse of incompetent persons and elder abuse. Above all, mental health counselors are required to comply with state and federal statutes concerning mandated reporting.
l. In working with families or groups, the rights to confidentiality of each member should be safeguarded. Mental health counselors must make clear that each member of the group has individual rights to confidentiality and that each member of a family, when seen individually, has individual rights to confidentiality within legal limits.
n. Mental health counselors may justify disclosing information to identifiable third parties if clients disclose that they have a communicable or life threatening illness. However, prior to disclosing such information, mental health counselors must confirm the diagnosis with a medical provider. The intent of clients to inform a third party about their illness and to engage in possible behaviors that could be harmful to an identifiable third party must be assessed as part of the process of determining whether a disclosure should be made to identifiable third parties.
Note: The AMHCA’s code of 2015, like the code of 2010, discusses the need to protect third party from dangerous clients and provide more specific language that directly apply to clients with HIV/AIDS. It states: “Mental health counselors may justify disclosing information to identifiable third parties if clients disclose that they have a communicable or life threatening illness. However, prior to disclosing such information, mental health counselors must confirm the diagnosis with a medical provider. The intent of clients to inform a third party about their illness and to engage in possible behaviors that could be harmful to an identifiable third party must be assessed as part of the process of determining whether a disclosure should be made to identifiable third parties.”
American Psychiatric Association – ApA
The Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry
http://www.psychiatry.org/File Library/Practice/Ethics Documents/principles2013–final.pdf
Note: ApA Principles of Medical Ethics provide very general view of medical ethics. It is one of the most broad and general codes that does not detail situations and behaviors like most other codes. Consistent with that, the code does not directly refer to terms, such as AIDS, HIV, or to contagious or communicable diseases. It does not even mention that disclosures may be legally required.
American Psychological Association – APA
Principle D: Justice
Psychologists recognize that fairness and justice entitle all persons to access to and benefit from the contributions of psychology and to equal quality in the processes, procedures, and services being conducted by psychologists. Psychologists exercise reasonable judgment and take precautions to ensure that their potential biases, the boundaries of their competence, and the limitations of their expertise do not lead to or condone unjust practices.
2.01 Boundaries of Competence
(d) When psychologists are asked to provide services to individuals for whom appropriate mental health services are not available and for which psychologists have not obtained the competence necessary, psychologists with closely related prior training or experience may provide such services in order to ensure that services are not denied if they make a reasonable effort to obtain the competence required by using relevant research, training, consultation, or study
3. Human Relations
3.10 Informed Consent
(a) When psychologists conduct research or provide assessment, therapy, counseling, or consulting services in person or via electronic transmission or other forms of communication, they obtain the informed consent of the individual or individuals using language that is reasonably understandable to that person or persons except when conducting such activities without consent is mandated by law or governmental regulation or as otherwise provided in this Ethics Code.
(b) For persons who are legally incapable of giving informed consent, psychologists nevertheless (1) provide an appropriate explanation, (2) seek the individual’s assent, (3) consider such persons’ preferences and best interests, and (4) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law. When consent by a legally authorized person is not permitted or required by law, psychologists take reasonable steps to protect the individual’s rights and welfare.
(c) When psychological services are court ordered or otherwise mandated, psychologists inform the individual of the nature of the anticipated services, including whether the services are court ordered or mandated and any limits of confidentiality, before proceeding.
(d) Psychologists appropriately document written or oral consent, permission, and assent.
4. Privacy And Confidentiality
4.02 Discussing the Limits of Confidentiality
(a) Psychologists discuss with persons (including, to the extent feasible, persons who are legally incapable of giving informed consent and their legal representatives) and organizations with whom they establish a scientific or professional relationship (1) the relevant limits of confidentiality and (2) the foreseeable uses of the information generated through their psychological activities. (See also Standard 3.10, Informed Consent.)
(b) 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.
(b) Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to (1) provide needed professional services; (2) obtain appropriate professional consultations; (3) protect the client/patient, psychologist, or others from harm; or (4) obtain payment for services from a client/patient, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose
California Association of Marriage and Family Therapists – CAMFT
1.5.4 LIMITS OF CONFIDENTIALITY:
Marriage and family therapists are encouraged to inform patients as to certain exceptions to confidentiality such as child abuse reporting, elder and dependent adult abuse reporting, and patients dangerous to themselves or others.
1.15 DOCUMENTING TREATMENT DECISIONS:
Marriage and family therapists are encouraged to carefully document in their records when significant decisions are made, e.g., determining reasonable suspicion of child, elder or dependent adult abuse, determining when a patient is a danger to self or others, when making major changes to a treatment plan, or when changing the unit being treated.
1.17 THIRD PARTY PAYER DISCLOSURES:
Marriage and family therapists advise patients of the information that will likely be disclosed when submitting claims to managed care companies, insurers, or other third party payers, such as dates of treatment, diagnosis, prognosis, progress, and treatment plan.
2.1 DISCLOSURES OF CONFIDENTIAL INFORMATION:
Marriage and family therapists do not disclose patient confidences, including the names or identities of their patients, to anyone except a) as mandated by law b) as permitted by law c) when the marriage and family therapist is a defendant in a civil, criminal, or disciplinary action arising from the therapy (in which case patient confidences may only be disclosed in the course of that action), or d) if there is an authorization previously obtained in writing, and then such in.
3. PROFESSIONAL COMPETENCE AND INTEGRITY
3.9 SCOPE OF COMPETENCE:
Marriage and family therapists do not assess, test, diagnose, treat, or advise on problems beyond the level of their competence as determined by their education, training, and experience. While developing new areas of practice, marriage and family therapists take steps to ensure the competence of their work through education, training, consultation, and/or supervision.
Note: APA Code of Ethics does not mention any direct reference to AIDS, HIV, or to contagious or communicable disease. It only mentions that disclosures may be allowed if the client is dangerous to others or legally required or allowed.
National Association of Social Workers – NASW
Commitment to Clients
Social workers’ primary responsibility is to promote the wellbeing of clients. In general, clients’ interests are primary. However, social workers’ responsibility to the larger society or specific legal obligations may on limited occasions supersede the loyalty owed clients, and clients should be so advised. (Examples include when a social worker is required by law to report that a client has abused a child or has threatened to harm self or others.)
Social workers respect and promote the right of clients to self-determination and assist clients in their efforts to identify and clarify their goals. Social workers may limit clients’ right to self-determination when, in the social workers’ professional judgment, clients’ actions or potential actions pose a serious, foreseeable, and imminent risk to themselves or others.
1.03 Informed Consent
(a) Social workers should provide services to clients only in the context of a professional relationship based, when appropriate, on valid informed consent. Social workers should use clear and understandable language to inform clients of the purpose of the services, risks related to the services, limits to services because of the requirements of a third-party payer, relevant costs, reasonable alternatives, clients’ right to refuse or withdraw consent, and the time frame covered by the consent. Social workers should provide clients with an opportunity to ask questions.
(b) In instances when clients are not literate or have difficulty understanding the primary language used in the practice setting, social workers should take steps to ensure clients’ comprehension. This may include providing clients with a detailed verbal explanation or arranging for a qualified interpreter or translator whenever possible.
c) In instances when clients lack the capacity to provide informed consent, social workers should protect clients’ interests by seeking permission from an appropriate third party, informing clients consistent with the clients’ level of understanding. In such instances social workers should seek to ensure that the third party acts in a manner consistent with clients’ wishes and interests. Social workers should take reasonable steps to enhance such clients’ ability to give informed consent.
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.
(d) 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. This applies whether social workers disclose confidential information on the basis of a legal requirement or client consent.
e) Social workers should discuss with clients and other interested parties the nature of confidentiality and limitations of clients’ right to confidentiality. Social workers should review with clients circumstances where confidential information may be requested and where disclosure of confidential information may be legally required. This discussion should occur as soon as possible in the social workerclient relationship and as needed throughout the course of the relationship.
(f) When social workers provide counseling services to families, couples, or groups, social workers should seek agreement among the parties involved concerning each individual’s right to confidentiality and obligation to preserve the confidentiality of information shared by others. Social workers should inform participants in family, couples, or group counseling that social workers cannot guarantee that all participants will honor such agreements.
Note: NASW Code of Ethics does not mention any direct reference to AIDS, HIV, or to contagious or communicable disease. It does refer to situations when clients are dangerous to others and does mentions that disclosures may be legally required.
National Board for Certified Counselors (NBCC)
1. NCCs, recognizing the potential for harm, shall not share information that is obtained through the counseling process without specific written consent by the client or legal guardian except to prevent clear, imminent danger to the client or others or when required to do so by a court order.
16. NCCs shall not release the results of tests and assessments to individuals other than the client without prior written consent except as required to prevent clear, imminent danger to the client or others; by written agreement with the client; or when legally required to do so by a court order or governmental agency.
Note: NBCC Code of Ethics does not mention any direct reference to AIDS, HIV, or to contagious or communicable disease. It does refer to situations when clients are dangerous to others and does not mention that disclosures may be legally required.