Important Stuff with the Word “Policy in It, post 2: Privacy
Posted: August 12, 2021
If you haven’t read my introduction to this series of posts, you might want to do that now.
Disclaimer: I will not cover every nuance of the sections I will be discussing. You are still highly encouraged to read the actual form itself.
CONFIDENTIALY AND EXCEPTIONS TO IT
One of the primary things clients will want to be familiar with in counseling is the laws/guidelines around privacy and confidentiality. The most important thing to know is that privacy and confidentiality are not absolute. There are times we absolutely have to reveal something you told us in counseling for legal and/or ethical reasons. In this post we’ll dig into the exceptions to privacy and confidentiality and the reason for those exceptions.
First, the wording on my Office Policies document on this topic.
Excerpt
CONFIDENTIALITY:
All information disclosed within sessions and the written records pertaining to those sessions are confidential and may not be revealed to anyone without your written permission except where disclosure is required by law.
WHEN DISCLOSURE IS REQUIRED OR MAY BE REQUIRED BY LAW:
Some of the circumstances where disclosure is required or may be required by law are: where there is a reasonable suspicion of child, dependent, or elder abuse or neglect; whe
re a client presents a danger to self, to others, to property, or is gravely disabled; or when a client’s family members communicate to me that the client presents a danger to others. Disclosure may also be required pursuant to a legal proceeding by or against you. If you place your mental status at issue in litigation initiated by you, the defendant may have the right to obtain the psychotherapy records and/or testimony by me. In couple and family therapy, or when different family members are seen individually, even over a period of time, confidentiality and privilege do not apply between the couple or among family members, unless otherwise agreed upon. I will use my clinical judgment when revealing such information. I will not release records to any outside party unless I am authorized to do so by all adult parties who were part of the family therapy, couple therapy or other treatment that involved more than one adult client.
Thoughts
So…hopefully in plainer English, here are exceptions and limits to your right to privacy and confidentiality in counseling.
1. I come to believe, based on something you say, that you are an imminent threat to yourself or someone else
“Imminent” means very soon. Someone saying, “Sometimes I think everybody in my life would be better off if I weren’t on the planet” is important and I take it seriously, but the threat is not imminent. But imagine someone saying, “”You know, I can’t deal with this pain anymore. Before bed tomorrow night I think I’m going to OD on prescription medication.” That’s imminent — they’re talking about a specific plan to do a specific thing on a specific day this specific week. In that case I would have to take whatever measures might be necessary to keep them safe, and keeping what that person said an absolute secret is secondary to that. What I actually do here could range from asking them to report to the ER for evaluation up to, if they refuse, calling the police and having the police take them to the ER.
2. I am told you may be hurting a kid or an old or disabled person
Calling Child Protective Services is really difficult and stressful for therapists to do. We know the embarrassment it could cause a family, that it may harm our relationship with our client, and that it could have other unintended consequences. But therapists are not given the legal option of deciding whether a complaint told to us has merit. CPS runs an investigation and makes that decision, our job is just to report it.
Asking a therapist not to report an incident is asking them to disregard the law. If they do this, and it somehow becomes known that they did it, they — not anyone else — will face the legal consequences for it. Therapists care about you and are expected to treat you ethically, but we are not expected to put our jobs and livelihoods on the line by disregarding the law. All of this goes for elder abuse and abuse of the disabled as well.
3. You are seeing me for couple counseling
Couples come to see me because things aren’t working and part of what is sometimes not working is they are doing things that are destructive to the marriage and each other, and lying to each other. As a couples therapist, I must have the discretion to refuse to keep a secret that in my judgment absolutely must be known by the other partner. Both partners need to know I will not be meeting individually with their partners and keeping critical things from them.
Example:
Client: Yeah, I promised her I’d do marriage counseling with her, but I actually haven’t stopped all contact with my mistress yet. I’m just not ready.
Me: That’s critical information your wife needs to know, since she thinks you are here to focus completely on rebuilding your relationship. You have 24 hours to tell your wife, or I will be sharing that with her.
4. The courts get involved
The legal system can send me a subpoena, which I may or may not ultimately be able to fight. I won’t go into detail on this but it’s important you’re aware of it.
5. Finally, you use insurance to cover your counseling
In this case, you yourself may be compromising your privacy. I have to keep your confidence, but the insurance company has a right to ask me for my case notes for any or all of our sessions. (This is called an “audit.”) They can also request a treatment plan, copies of all assessments you may have taken, medication lists, chart notes, and pretty much everything else in your file. I can request that they accept a brief summary from me instead of the whole shebang, and they may, but if they insist I have to send what they ask for. Once I send them this information, I have no control over what they do with it.
So that’s the scoop on your right to privacy and confidentiality in counseling and the main exceptions to that right.
Bonus: The role of your emergency contact
The only other thing I want to make sure you understand is the role of your emergency contact and how it relates to privacy.
If I’m concerned about your safety, and call or text you to check on you, and you don’t respond for several hours, I will grow even more concerned and try to contact you again, only this time I’ll let you know that if I haven’t heard back from you within a short period of time (perhaps an hour or two), I will be calling your emergency contact. I would not share details with them about what’s happening, but would say I’m calling to see if you are okay because you have not been responding to my attempts to contact you. If I am recommending you go to the hospital and you won’t go, I will likely call your emergency contact to inform them of this situation. That person has a right to know if I feel you may be compromising your safety. Those are just a couple examples of when I might contact this person.