Navigating Key Concepts
Part Three
Exercising Discretion
Chapter Five
Exercising Discretion
Privacy: An individual constitutional right of sharing oneself with others
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.
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Exercising Discretion
Confidentiality:
Rooted in a client’s right to privacy
It is the counselor’s ethical duty to protect private client communication.
Confidentiality is at the core of effective therapy
Motivates the client to be forthcoming when sharing very person information.
Therapist would not be able to help their clients effectively address their issues.
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Exercising Discretion
Privileged communication:
Refers to legally recognized fiduciary relationships (e.g. attorney-client, clergy-penitent, husband-wife relationships etc.)
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.
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Ethical Limits of Confidentiality:
Professional Codes of Ethics
A Case of a Dangerous Client
Arty appears to be comfortable speaking candidly to Dr. Morgan.
Is it ethical for Dr. Morgan to use the information acquired in confidence against Arty to protect the life of others?
ACA and NASW Codes permits counselors to disclose confidential information to protect clients and others from serious harm.
These codes do not mandate disclosure. They only permit.
So, is Dr. Morgan legally required to disclose confidential information to prevent harm?
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The Legal Limits of Confidentiality
A Case of a Dangerous Client
Tarasoff v. the Regents of the University of California (1976)
Set a landmark legal precedent for a counselor’s duty to warn
The Tarasoff Case declared that therapists incur a duty or obligation to protect
The protective privilege ends where public peril begins
The 1976 decision announced a Duty to Warn
The 1978 decision announced a broader Duty to Protect
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The Legal Limits of Confidentiality
A Case of a Dangerous Client
Prior to the Tarasoff Case, there was no legal precedent.
There are several states that allow therapists to exercise discretion.
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| Table 5.1 *Stakeholders/Welfare/Interests | ||
| Stakeholders | Welfare (Positive/Negative) | Interests |
| Arty | Getting through a difficult period Continuing to make progress in therapy Not harming himself | Having his confidences respected Getting back at Johnny Being gainfully employed Being informed about the limits of confidentiality |
| Johnny | Avoiding serious bodily injury or death | Being informed about the potential threat |
| Dr. Morgan | Avoiding legal harms (fines, loss of license, lawsuits, etc.) | Acting in the best interest of Arty Protecting Arty’s confidentiality Obeying the law Preventing serious bodily injury or death of others by her client |
| Customers at the Supermarket | Avoiding serious bodily injury or death | Being informed about the potential threat |
| Other Employees | Avoiding serious bodily injury or death | Being informed about the potential threat |
| Law Enforcement | Protecting the public against an imminent threat of death or serious bodily injury |
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Reasonable Judgement in Decision-Making
Reasonable judgement is based on evidence.
Sufficient evidence suggests a high probability of imminent harm to another
We ask certain evidentiary questions that can guide reasonable judgement.
Behavior sciences have not advanced to the level of predictability found in the physical sciences.
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| Table 5.2 *Guidelines for Predicting Violence | ||
| Does the Client Have? | Yes (Y) | No (N) |
| A psychiatric diagnosis such as antisocial personality associated with a high incidence of violent or aggressive behavior? | N | |
| A psychosis (delusion or hallucination) disposing the client to violent or aggressive behavior such as a paranoid psychosis? | N | |
| The history of violence toward others? | N | |
| A clearly articulated feasible plan to commit a violent act? | N | |
| An intended, specific victim? | Y | |
| The means to execute a contemplated violent act? | Y | |
| A situational trigger that can provide a motive to behave in a violent or aggressive way (job loss, relationship problems such as a breakup, rejection by others)? | Y | |
| 8. A substance abuse problem? | N |
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Limits to Confidentiality and
Privileged Communication
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
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Limits to Confidentiality and
Privileged Communication
Information is first protected.
Jaffee v. Redmond (1996)
What to do with court orders
When a court of law orders a therapist to disclose confidential or privileged information, request that the court withdraw the order.
Limit the information shared to the least information possible.
The United States supports promotion of trust amoung therapists and their clients.
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Limits to Confidentiality and
Privileged Communication
Health Insurance Portability and Accountability Act of 1996 (HIPPA)
“Psychotherapy notes” may not be shared by “covered entities” for any purpose without written authorization from the client.
Covered Entity Any individual or institution involved in electronically transmitting health information for the purpose of billing and payment for services or insurance coverage.
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Limits to Confidentiality and
Privileged Communication
Health Insurance Portability and Accountability Act of 1996 (HIPPA)
Written Authorization Exceptions
Training programs
Defense in a legal action brought by the client
Prevent probable and imminent harm to client or another
Report child abuse
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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.
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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.
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