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Law and Ethics for California Licensed Clinical Social Workers: Confidentiality

(6 hours $19)

INTRODUCTION

Overview

This course is intended to familiarize the student with the legal and ethical issues in clinical social work. Thus, this course will include many specifics from applicable state and federal laws, as well as the Code of Ethics of the NASW. The scope of this course will be on clinical individual, family, and group work.

Laws, regulations, and ethical guidelines figure very importantly in the conduct of social workers and other professionals. Laws and regulations serve a variety of purposes. These purposes are as concrete as the equity transfer of taxes and licensing fees that support communities, and as esoteric as serving the mandates of constitutional law. The primary aim of most laws regulating professions is to protect and improve the welfare of the public, not to further the welfare of the professionals they regulate.

Ethics and laws are highly interwoven, and this course will discuss ethical principles and codes in connection to relevant laws. It will also provide a good deal of historical context. This will include court cases and controversies presented in terms of their role in the evolution of law and ethics pertaining to clinical social work practice.

History: Known ethical standards for healers date back to the Hippocratic Oath, developed roughly 2,500 years ago (Hippocratic) and even farther back to the Nigerian healer’s code. (O’Donohue, W. T. & Ferguson, K. E., 2003) Attempts to regulate professions have a long history, and were often triggered by problems with the conduct and training of the professionals themselves.

Nature of Laws: Laws pertaining to social work can be found in various statutes and codes that serve a variety of purposes such as maintaining confidentiality and requiring adequate levels of training. There are also laws collected together under the rubric of professional conduct. Violations constitute unprofessional conduct, for which there are various enforcement measures. Enforcement ranges from sanctions such as letters of warning, to punishments that can include loss of license, fines and imprisonment.

In the United States, state boards have the primary responsibility to regulate professional behavior. In California, the California Board of Behavioral Sciences regulates licensed clinical social workers.

There are numerous laws and regulations that give this board the authority, responsibility, and the procedures to regulate the professionals under its authority. The board itself must obey numerous laws and regulations pertaining to its conduct. The board’s regulatory responsibilities include reviewing complaints from the public, issuing sanctions and even working with law enforcement when necessary.

Principles & Perspectives

The student is encouraged to participate in this course with an eye to the principles that underlie the specific laws, regulations and guidelines covered. Understanding these underlying principles will help the student understand and apply the material in this course. They can be best understood by learning about the sources and motivations for the regulation of professional conduct.

Clinical Social Workers, in particular, learn to be aware not only of individual psychology, but also of the dynamics of social systems, including the family. As Maddock put it, “The willingness to bring social systems into the domain of mental health care has created added layers of legal and ethical complexity never envisioned by the original architects of the psychotherapeutic process…” (Maddock, J. W., 1993)

Setting the Stage for Ethical Practice

Introduction

This section covers fundamental concepts in ethics that support the clinician's capacity for ethical performance. Each subject can be seen as a thread that connects the clinician to society in a meaningful way.

Stress-Reducing Beliefs and Knowledge about Ethical Practice

The following concepts are adapted from Pope and Vasquez’ textbook on ethics in psychotherapy. (Pope, & Vasquez, 2007).

A continuous, active process: Many factors can challenge and even interfere with ethical decision making. Laws and ethical codes cannot foresee every circumstance. Thus, a commitment to conscious analysis of ethical issues and gaining support for ethical conduct are essential.

Enlightened use of literature, training and research data: Literature, training and research can result in conflicting and erroneous claims and ideas, or be misapplied through overgeneralization or misinterpretation. It is important to think critically and compare multiple sources and biases in developing and applying therapeutic procedures and ethical behavior.

Most ethical gaffes are a matter of fallibility, not corruption: Most social workers are dedicated, caring individuals who are committed to competent, ethical practice. However, we can make mistakes or inadvertently succumb to pressures that result in breaches of ethics or effectiveness. By being open-minded about one’s own fallibility, and by thinking critically, the social worker is in a better position to prevent or recover from errors while minimizing harm. Continuous questioning as to better ways to perform or think critically is needed. Preoccupation with the faults of others is a red flag that we are distracted from our own faults. Even where large numbers of clinicians have been highly confident, history has shown that we can be wrong.

Ethical dilemmas do not always have clear answers: If you have a pulse, expect to struggle with ethical dilemmas. Clinical work is subtle and complex, and is fraught with societal and legal issues. This is another motive for continuing education in the issues, and for peer support in teasing out the answers. Where legal implications exist, consulting with the state board, agencies that are involved in the case, and an appropriate attorney are advisable to consider. Rather than being preoccupied with eliminating all risk of complaint or liability, the social worker should be actively involved in reducing risk in an ethical and lawful manner. Social workers who pursue perfect absence of risk tend to harm their performance through anxiety and perseveration. These symptoms deserve attention and help.

Coming to terms with risk of lawsuits and complaints: Social workers sometimes complain about situations in which there is no guarantee that a successful lawsuit can be prevented. Even an unsuccessful lawsuit can pose great demands and stress. Much of the ambiguity of the legal environment comes from changes in society. It takes time for laws and court cases to catch up with changes in society. Even then, there may be conflicts between laws and between court judgments and laws. Further, technology has completely changed the face of confidentiality, leading to extensive federal law. Other societal changes include the changing perception of young people and sexual activity along with conflicts over issues of family planning, the roles of parents, and the boundaries of confidentiality.

Sometimes laws seem to go against common sense, or at least the instincts of social workers and the people they serve. When we trace a law or judgment back to its roots, we can usually understand and comply in good conscience. However, it is not always possible to convince an angry parent or spouse of its wisdom.

Defensive practice, a balancing act: Nonetheless, social workers must determine how much defensive practice is too much. Wishing to avoid liability and even the risk of an unfounded complaint or lawsuit, social workers may be tempted to go too far. Excessively defensive practice can deprive clients of appropriate and needed services. In other words, the social worker must ask whether a defensive strategy is an ethical one. The social worker must accept a certain level of risk along with the privilege of licensure in a healing profession.

An example of an excessively risk-aversive approach would be refusing to work with children going through divorce simply because there is a higher likelihood of complaints or suits. Another is that of the psychiatrist who complacently prescribes medication to relatively easy cases, but will not accept cases that are complex, and neglects or actively alienates clients who become complex, simply because they are not as profitable. Refusing to accept cases that may be demanding is known as cherry picking.

On the other hand, one can proceed with too much abandon. Social workers driven to play the hero may mishandle delicate ethical or legal issues. For example, one psychotherapist took his client’s problems so personally, that he would make bold moves without initially gaining adequate rapport. When a client expressed hopeless self-pity, he tried to prove that people would be helpful. He offered to loan her money to get out of a jam. The client was so confused, surprised and alienated that she left his care. This same psychotherapist later ended up with two separate disciplinary actions by the board for other infractions, and got the highest rate of complaints to a managed care company.

Social workers should not react with excessive risk aversion, nor with rash heroism. Instead, counselors should take care to draw the line between these extremes with an ethical perspective that considers client welfare. By considering their existing competencies, social workers can ethically reduce risk of complaints and lawsuits. Appropriate strategies include the following:

Provide informed consent.

Set expectations of clients at the beginning of treatment.

Educate clients about what you can and cannot do, and about the legal and ethical requirements that are relevant to the situation at hand. Do this in a preventative manner, rather than reactively.

Inform clients of available relevant treatment options, and in so far as possible, their merits and risks. Refer as needed for additional assessment and consultation to accomplish this.

Stay up-to-date with the changing legal landscape and evolving ethical guidelines.

Get adequate support when an ethical or legal concern arises. Use contact with experienced peers, the state board, the attorney available through your professional organizational membership, educational materials, and reviewing the actual laws and guidelines.

Personal Ethical Advancement

Self management

Our culture values willpower and conscious decision-making, but managing our impulses can be more about decreasing our need to use willpower. We can do this by preventing overly risky situations and by cultivating ethical thinking.

Kindling: In thinking about self-management where impulses may attempt to overwhelm ethics, the neuropsychological concept of kindling is of value. It means what it sounds like it means. Impulses, given enough excitation, become increasingly powerful. A common expression for this, where sexuality is concerned, is “playing with fire.” A strategy to avoid kindling where sexual attraction is concerned would be in refraining from sexual fantasies about clients and refraining from subtle boundary crossings that will be discussed later. It is important to respect the power of our own physiology, and to manage it effectively.

Losing objectivity: Another approach is to self-monitor for signs of losing objectivity. Such signs include rationalization, changes in physiology such as heart rate, beginning to think of ways to cross boundaries, and finding oneself unconsciously crossing boundaries. Isolation is bad for ethics. It is very valuable to discuss ethical challenges with supervisors and mature, experienced peers. Self monitoring is an important clinical competency.

“The ability of a therapist to help a client is strongly influenced by the nature of that therapist’s psychological functioning.” (Epstein, 1994, p. 35)

Personal boundaries of the clinician: The clinician's ethical integrity rests upon his or her psychoemotional integrity. This will vary with the social worker's level of stress and existing vulnerabilities. Honest self knowledge and acknowledgment of issues such as mental disorders, relationship problems, lack of sexual satisfaction, attacks upon self esteem, loss, and trauma may increase the social worker's impulsiveness or neediness. This may intrude upon the therapeutic relationship. The social worker’s self assessment, preparedness for such eventualities, and external support from family, friends, peers, supervision, and counseling are all factors that may help to prevent a bad outcome and even improve the quality clinical services. (Ibid)

Foundational to Self Management

The reader can use the following sections to assess their own and others' capacity for ethical functioning and judgment.

Cognitive Profile: Cognitive strengths and vulnerabilities have implications for ethics. If the social worker has significant cognitive difficulties, he or she may have trouble with a large caseload, case management, or case conceptualization and treatment planning. Problems such as attention deficit disorder may leave treatment planning intact, but interfere with managing details when case management demands exceed a certain threshold. Social workers must know their cognitive abilities to avoid taking on responsibilities outside their scope of competence. This may require outside assistance, because persons with some neurological problems may experience what is known as a positive illusory bias, in which they overestimate their abilities.

Personality style of the social worker: The social worker’s personal reaction (countertransference) to clients can significantly alter the course of treatment for better or worse. One area where this issue has received attention is the treatment of individuals with personality disorders. For example, psychotherapists have been shown to be more likely to have negative reactions to clients with cluster A and B personality disorders. This tended to be associated with high drop out rates, and affected clients’ feelings about therapy. (Rossberg, Karterud, Pedersen, & Friis, 2007)

Much research has shown a correlation between the quality of the psychotherapist-client relationship and good therapeutic outcomes. In a good psychotherapist-client relationship, the psychotherapist’s personal issues do not interfere.

A divergent theory is that the psychotherapist’s ability to form a good relationship is actually symptomatic of the psychotherapist not having a personality disorder or other problems that interfere with mature relationships. Accordingly, the psychotherapist’s ability to mature and to adapt are the key to this effectiveness, rather than the relationship itself. This would explain why treatment that does not involve developing much of a relationship with the client can still be effective. For example, hypnosis with amnesia, “content-free” work, and very brief therapy involve a superficial relationship, but can be effective.

Red flags that tell a social worker that he or she may have critical needs for personal development include their reaction to people with personality disorder symptoms, to highly victimized people, and to highly assertive people.

Impulse control and the social worker: Social workers with impulse control difficulties may have a history of “blurting” that is, saying something that is not altogether socially acceptable (or of therapeutic value) before they think about the consequences, or they may experience little concern for the consequences. There may be a history of poorly thought out efforts to be the hero or to react to perceived slights. These incidents may be more likely when there is a sense of heightened emotion or urgency, or when there is more sensory stimulation or recent blows to self esteem.

Social workers with this kind of history must work conscientiously with supervision to develop accommodative measures and stress reduction or self-soothing methods.

Philosophy and Values in Ethics

Whether you know it or not, your actions are based upon a philosophy that embodies values to produce your ethics. These ethics have a profound effect on your work as a social worker. Your ethics have either a harmonious or stressful relationship with the more general ethical frameworks of the law and your profession. The American Heritage Dictionary defines philosophy as:

A study that attempts to discover the fundamental principles of the sciences, the arts, and the world that the sciences and arts deal with; the word philosophy is from the Greek for “love of wisdom.” Philosophy has many branches that explore principles of specific areas, such as knowledge (epistemology), reasoning (logic), being in general (metaphysics), beauty (aesthetics), and human conduct (ethics).

Different approaches to philosophy are also called philosophies. (See also epicureanism, existentialism, idealism, materialism, nihilism, pragmatism, stoicism, and utilitarianism.) (American heritage, 2005)

Whatever answers one finds in philosophy, it is not a fixed base of knowledge or opinion. It is highly influenced by the biases of its culture, and it is ultimately personal. For example, the very influential philosopher, Schopenhauer was quite misogynistic and anti-Semitic, and felt that sex was disgusting. (Janaway, 1999) Philosophers and their philosophies need to be seen not only as being influential, but also as having been profoundly influenced.

From the psychotherapist’s perspective, “philosophy is a set of generalizations and guidance regarding the identification and expression of human values…” Psychotherapy is “value laden” not value free. (Tjeltveit, 1999)

Everything you do can be seen as an expression of values. Consider the act of opening a can of tuna. You can view it in terms of contributing to your health and family, taking a political position on the hunting of dolphins, or the ecological aspects of waste management. These views depend on what kind of tuna you purchased, who you gave the tuna to, and what you did with the can. Esthetics looms large in some schools of philosophy. It would affect how you prepare tuna.

Values are so deeply embedded in our culture from thousands or millions of years of patterned behavior, that identifying values can be like trying to get a fish to identify water. Values can be seen in the highest aspirations and the most raw physiology, as in the drives that support procreation and survival. It is an essential responsibility of social workers to “unpack,” inspect, and refine their values in ways that are of practical value to their clients and to their own careers. A great additional benefit to this process is that it makes the social worker more effective at helping clients identify and act on their own highest and practical values.

One of the challenges to identifying values and adhering to functional values is that of rationalization. A social worker who states that he or she is having sex with a client because it is giving him or her a positive relational experience and practice at being uninhibited is actually performing a very commonplace mental trick. Here are the steps: 1) Disguise physiologically primitive drives (the drives to procreate and to pursue pleasure, or hedonism). Do this by unconsciously generating a higher-level value statement (value to the client). 2) Adopt this higher-level value as the surrogate reason for the behavior (soliciting sex). This mental prestidigitation serves the parallel purposes of shielding the social worker’s awareness from information that would damage his or her self-esteem, while permitting the social worker to act on primitive impulses.

Mental tricks such as this have survival value. From the perspective of evolutionary psychology, the conscious mind and rational thought are of less value than procreation and survival. Rationality and ethical principles are younger and more delicate than our more primitive impulses. It’s no wonder that ethics in psychotherapy has such a checkered past, and poses great challenges to social workers and to the legal system.

A substantial percentage of clinicians who sexually transgress are repeat offenders that are difficult or impossible to rehabilitate. Therefore, it is important to distinguish between social workers who need to refine their values as opposed to social workers who perceive people as objects whose needs exist only to manipulate so as to fulfill the social worker’s needs. This kind of narcissistic, antisocial character pathology is not a matter of limited insight, psychological defenses, and surrendering to impulses. It is not a matter of limited professional experience. It is a highly ingrained way of being and perceiving that is very difficult to treat, and generally leads the offender to evade treatment except in so far as it can be used to manipulate the system. This is a very good argument for taking assertive action that will create oversight and accountability when violations of ethics are discovered, particularly where personal boundaries are concerned.

Religious Belief

The social worker must have effective ways of responding to clients whose religious beliefs differ from those of the social worker. This situation can create special challenges for rapport-building and the pursuit of therapeutic outcomes. A non-religious psychotherapist, confronted with a question as to his orientation by a fundamentalist client, was able to diffuse the potential value conflicts by describing himself as a tool to be used in achieving certain outcomes. He asked if the client would ask what religion a wrench was. He also told the client to consult with his trusted religious authorities to determine whether any advice would need to be modified in order to comply with the positions of those religious authorities. After all, he pointed out, the client would use the wrench in a manner compliant with his religion.

Religious beliefs and attitudes span the range from values that are aligned with client welfare to values that are unhinged from client welfare. The disconnection from client welfare occurs when the intervention is based exclusively on principles that must be applied regardless of their outcome, as we shall show below.

Insularity

Introduction

Insularity is an adjective that can refer to applying principles without regard to outcomes, or with blind faith that the outcomes will be good. Related words are fanaticism, zealotry, doctrine, and dogma. Therapists with insular attitudes are likely to harm their clients. Such therapists fail their clients by being doctrinaire. They adhere rigidly to prescribed techniques and apply theory independently of its actual outcomes.

Three alarming characteristics of insular or overzealous therapists include being unable to adequately explain the theory behind the treatment, limiting client assessment to areas that the psychotherapist’s biases permit, and failing to change the approach to treatment despite poor results.

An Example of Insularity in Rebirthing

The smothering of a young girl undergoing rebirthing therapy (a part of her attachment therapy) as a treatment for attachment disorder, as diagnosed by an unlicensed and unregistered Colorado psychotherapist, resulted from applying the technique despite abundant evidence that it was harming the child. (Nicholson, 2001) The psychotherapist, her three assistants, and the adoptive mother had every intention of helping the girl, but her pleas for help and insistence that she was dying were misperceived through the therapeutic orientation or “filter” of the rebirthers. Among other evidence, videotape of the session convinced jurors to convict the psychotherapists in the child’s death. (Lowe & Ames, 2001)

Two of the psychotherapists were sentenced to sixteen years in prison for reckless child abuse resulting in death. They received the minimum punishment because the judge believed that they did not intend to harm the victim. (Janofsky, 2001) The deaths of several other children have been linked to rebirthing, also known as holding therapy. (Chaffin, et. al., 2006)

This case had additional elements of zealotry, in that promotional materials and statements about rebirthing stated that it was the only therapy that was evidence based, when there was no research supporting it, and in that the primary psychotherapist indicated in her materials that she was a licensed clinical social worker, which was false. The strength of the rebirthers’ beliefs eclipsed fundamental principles of clinical thought and ethics, despite the fact that the primary psychotherapist was a nurse.

Additionally, they were using somatic interventions in the sense that there was physical restraint, application of physical pressure, and deprivation of oxygen. When using methods that can have a direct physiological impact (or an acute or dramatic psychological impact, for that matter) it is especially important to become well-informed about any potential risks and any advisable safety measures. This assumes that the methods are appropriate in the first place.

The Example of Recovered Memory

The recovery of repressed memories of child abuse was popularized in the early 1980’s. A wave of prosecutions and law suits against alleged perpetrators followed. At the same time, many children provided accounts of current or recent abuse as well. In the 1990’s a wave of malpractice claims against psychotherapists and organizations accused of eliciting false memories followed. The recovered memories were often elicited through methods such as hypnosis and manipulative interrogation techniques directed at children. The incidents were often unsupportable by evidence or even extremely improbable.

The debate over recovered memories has often occurred as a polarity between whether or not abuse occurs and whether or not a person is a true feminist. Many feel that this period constituted a modern witch-hunt. In Manhattan Beach, California, as the McMartin Preschool case was unfolding, many cars displayed bumper stickers saying, “We Believe the Children.”

A sober discussion of the issue centers on science and the establishment of facts. Despite the emotion and smear campaigns directed at people who questioned the recovered memory movement, science and wisdom prevailed. Guidelines for interviewing children and for assessing symptoms that may occur as the result of a history of child abuse have been established. There is a great deal of research that has helped clarify the nature of memory, therapy, and testimony relevant to this issue. (Loftus, & Davis, 2006) Successful cases against psychotherapists using inappropriate means of producing memories of childhood abuse have resulted in large penalties. (Star Tribune, 1995)

The wave of repressed memory and questionable abuse cases peaked in the mid 1990’s, and have greatly diminished as a result of increased sophistication in the courts, social services, the public, and counseling.

Evidence-Based Practice and the Biopsychosocial Model

Clinicians are facing increasing challenges to justify their approaches in terms of evidence such as outcome studies and other research published in peer-reviewed journals. There are controversies as to how to manage this issue, given that the evidence basis for psychotherapy is very limited. However, it is safe to say that clinicians should make every effort to stay up-to-date on this emerging knowledge.

Experts have expressed concern that academic institutions offer inadequate training in evidence-based practice. (The Institute of Medicine of the National Academies, 2006, pp. 264-299; The President’s New Freedom Commission on Mental Health, 2003; Hoge, Morris, Daniels, Stuart, Huey, & Adams, 2007) The prosecutors in the case of Candace Newmaker, the girl who died in rebirthing therapy, repeatedly returned to this issue in cross-examination the psychotherapists.

There are numerous challenges to improving clinical performance through research, however. Clinicians face difficulties, “converting clinical guidelines into active performance measures,” or in, “integration of findings into daily operations.” (Stout, Hayes, 2005) Sometimes research results do not apply to therapy in the field as much as they appear to. Research studies may not be as relevant to practice conditions as they appear. Psychotherapists in research studies may not actually carry out therapy with as much fidelity to the prescribed method as is believed, because they may put clients’ needs ahead of the research objectives, or because the client cohort is not as homogenous as intended. The literature on this subject offers many other examples.

Often, there is not enough consistent data available to form a secure evidence-based opinion, despite the existence of practice guidelines and texts that synthesize what information is available. Psychotherapists often use methods that are not yet well researched, but that they have faith in because of an abundance of clinical experience. In this circumstance, avoiding blind faith by staying outcome-focused and carefully assessing risks and one’s own scope of practice and competence are essential. Awareness of standards of practice is important and can protect against liability as well.

Although a biologically informed approach is part of the standard of practice, the weaknesses of available information must also be considered. For example, much medical research has been called into question because of interference from “big Pharma” (the pharmaceutical industry) with research, practice, and the outcomes of lawsuits. This has included the suppression of negative information about medications.

On the other hand, the landmark Osheroff v Chestnut Lodge case began what is now a solid legal and ethical basis for expecting clinicians to inform clients of treatment alternatives where there is a basis in research and standards of practice for them. (Shuman, 2007) For many clinical issues, medication has that basis.

Informed Consent

Informed consent is so fundamental to clinical practice that there will be references to its place in various ethical, legal, and clinical concerns throughout this course. This section will provide an overview of fundamental concepts.

Purpose: Informed consent refers to a client having adequate information to make a decision regarding medical care. This prevents a medical procedure from being considered battery. (Alban, 2007) Information that assists the client in understanding the risks and rewards of their mental health services affords the client the ability to give “informed consent.” It should include appraising the client of alternative treatments and their relative effectiveness.

At the start of treatment: At the start of services, clinicians provide their clients with verbal and written information, much of which is legally required. Some of the information is not legally required to be offered, but affords some legal protection to the social worker. Other information provided is helpful in setting client expectations in order to improve client understanding and adherence to terms and conditions of the services provided by the social worker. HIPAA and state regulations require psychotherapists to provide specific information for the purposes of informed consent at the beginning of treatment.

HIPAA requirements on informed consent will be covered in the HIPAA section.

As an aspect of the treatment plan: It is also advisable to establish with clients a mutually acceptable treatment plan. This should be done, at least in an initial form, as early as possible in treatment. This should include the goals and methods expected to be used.

The degree of detail that should be shared with clients will vary greatly according to individual circumstances. A client's psychological state, including mental and intellectual capacities and levels of emotional vulnerability, will often dictate the amount and type of information that an LCSW feels should legitimately be shared. During the course of treatment, if a client's condition improves or deteriorates, it may become necessary to reevaluate the amount and type of information that has been disclosed thus far, and adjust such disclosures accordingly.

Access to treatment data as an issue: How to reconcile client welfare with obligations of informed consent may present challenges for LCSW’s. Pope, et al., summarize the problem succinctly:

Should the clients have full access to assessment and treatment data that concern them? On the one hand, access to data about the client's condition may be important to the client's reaching a truly informed decision about initiating or continuing treatment. For example, if clients are not honestly told the diagnosis, it may be hard for them to know whether they want to be treated without knowing what they are to be treated for. On the other hand, psychologists may feel that certain technical terms or raw data may actually exacerbate the client's condition. (Pope, & Vasques, 1998)

They cite the results of one study showing that psychotherapists' opinions vary regarding how much to disclose about therapy. "About one in five believe that it is unethical to refuse to disclose the diagnosis (21.5%) or to refuse access to a test report (21.7%)." (Ibid) However, far fewer psychotherapists see ethical problems with denying patients access to "chart notes (14.5%)" or "raw test data (12.1%)." (Ibid) Refusing to share particular types of information with clients is not uncommon: "Around half of the respondents have denied their clients access to the diagnosis (48.0%), to the testing report (49.6%), to their chart notes (55.5%), or to raw test data (57.4%)." (Ibid)

This issue will be discussed in more detail in the section on records.

Confidentiality

Cornerstone

Confidentiality is generally considered a cornerstone of the doctor-client relationship. (Alban, 2007) Many psychotherapists assume that mental health treatment is most likely to be successful when the client has a trusting relationship with the clinician. (US Department of Health and Human Services, 1999, citing Sharkin, 1995) People tend to reveal much of their private selves in the course of receiving counseling.

Trust that clinicians and institutions will preserve client privacy is necessary to maintain the value of mental health services. Laws that protect confidentiality attempt to preserve this trust, so that people will be more likely to benefit from mental health services such as counseling. With trust in confidentiality, people are more likely to pursue counseling, are more likely to afford the level of care that they need by utilizing their insurance and other benefits, and are more likely to divulge information that is needed to ensure effective treatment. In addition to the needs of individuals, confidentiality laws serve the interests of family members, employers and society in general, by helping to reduce the impact of mental and emotional disorders and personal problems.

These laws protect as private information both the fact that an individual has sought mental health treatment, and the disclosures that are made during treatment. (Ibid) Confidentiality laws can also serve to protect the client or other family members and even the social worker from the danger that may result when a violent individual learns that someone they have intimidated is seeking support, or when that individual learns of the identity of the social worker. These laws help to protect individuals from problems such as social stigma, and workplace and housing discrimination.

Legislatures and the justice system have given considerable attention to issues concerning the role of privacy in health care over the last three decades. While the legal right to privacy has been at issue most frequently in procreation and end of life decisions, it is well established as being of great importance in mental health services. (Ibid)

The right to privacy itself, in its most abstract form, has its genesis in the fourth amendment of the Constitution. (Ibid)

Confidentiality and required reporting guidelines pertaining to California social workers are provided in Article 2, Section 4982, of the California Board of Behavioral Science (BBS) Statutes And Regulations booklet. Section 4982 states: The board may refuse to issue any registration or license, or may suspend or revoke the license or registration of any registrant or licensee if the applicant, licensee, or registrant has been guilty of unprofessional conduct.

Subsection (m) documents unprofessional conduct to include the following: Failure to maintain confidentiality, except as otherwise required or permitted by law, of all information that has been received from a client in confidence during the course of treatment and all information about the client which is obtained from tests or other means.

Specific statutes and regulations that address confidentiality are codified in the California Evidence Code, Civil Code, Business and Professions Code, Penal Code, and the Welfare and Institutions Code. Sometimes federal law may be stricter than state law, or apply specifically because of the nature of the program that the therapist serves. These federal laws include HIPAA and Code of Federal Regulations (CFR), chapter 42.

NASW Ethical Guidelines

California LCSWs are represented nationally by the National Association of Social Workers (NASW). This organization has set forth ethical guidelines pertaining to the practices of their members. Professional ethical guidelines such as these exist to improve the standing of professions in the community, and to reduce the pressure upon legislatures to take action to manage professions. These guidelines are normally designed not to conflict with existing law, but they may be more or less restrictive. The NASW has promulgated a code of ethics. Like any professional organization, the NASW expects its members to abide by the standards expressed in its codes.

What is to be Confidential

Client confidentiality must cover the question of whether they are participating in mental health services. Social workers must refrain from confirming or denying that any individual is or has been a client, so long as there is no legal exception to confidentiality. All details of the verbal and written communications in the course of counseling, assessment, testing, reporting and other communications are also protected as private information.

The Client's Representative

From time to time, laws refer to the representative of the client. This can mean the parent or guardian of a minor or the guardian or conservator of an adult. In certain legal processes, an "agent" may be appointed and function as a representative. A beneficiary or personal representative of a deceased client may be given authority to function as a representative. (Health & Saf. Code § 123105 subs. (e))

The Place of Confidentiality in the Therapeutic Relationship

In Ethical Standards

The NASW Code of Ethics provides a detailed, itemized set of standards regarding confidentiality. (NASW, 1999) See Appendix B for the full text. The standards parallel the intent of applicable law.

As an Aspect of Informed Consent

Clinicians routinely provide information regarding confidentiality as an aspect of informed consent. The issues of confidentiality equate to risks and rewards that the client should knowingly choose when entering therapy. There are risks that confidentiality may be breached due to legal responsibilities placed upon the social worker, or breached illegally through an error or an intentional act. Legal and procedural measures to preserve confidentiality afford protection, but not certainty.

The NASW Code of Ethics and the Health Information Privacy and Accountability Act (HIPAA), call for providing informed consent.

Concern about Breaches

Inappropriate breaches of confidentiality do occur, and are a source of board disciplinary actions. However, such breaches do not appear to constitute a pervasive problem or crisis in public confidence. According to Pope, et al., "Few psychologists blatantly breach the confidentiality of their clients." (Pope, & Vasquez, 1998) More often, they note, client confidentiality is breached "informally" or "unintentionally." (Ibid) Citing the results of one study, they report: "About three-fourths discuss clients – without names – with friends. Only 8.1% discuss clients – with names – with friends." (Ibid) However, they also add: "Surprisingly, over half (61.9%) have unintentionally disclosed confidential data." (Ibid)

Privilege

Privilege: Not Exactly Confidentiality

At the outset of therapy, clinicians provide their clients with verbal and written information, much of which is legally required. Some information is not legally required to be offered, but affords some legal protection to the therapist. Other information provided is helpful in setting client expectations in order to improve client understanding and adherence to terms and conditions of the services provided by the therapist.

Information that assists the client in understanding the risks and rewards of their mental health services affords the client the ability to make “informed consent.” Traditionally, informed consent refers to a patient having adequate information to make a decision regarding medical care. This prevents a medical procedure from being considered battery. (Alban, A., 2007)

In gaining informed consent, the therapist must explain the privacy of the client's personal information, including the fact of their receiving services from the therapist. The issues of confidentiality are part of the risks and rewards that the client should knowingly accept when entering therapy. There are risks that confidentiality may be breached due to legal responsibilities placed upon the therapist, or breached illegally through an error or an intentional act. The legal and procedural measures that preserve confidentiality afford protection, but not certainty.

The NASW code of ethics and the Health Information Privacy and Accountability Act (HIPAA), call for providing informed consent. HIPAA, as we shall see, goes into very specific detail as to how to accomplish this.

Confidentiality of medical information is a right that citizens hold. This right imposes upon social workers a duty to preserve the privacy of their clients. When another duty competes with the social worker’s duty to preserve client privacy, the social worker must assert that one duty is a more important obligation than the other.

For example, if an attorney subpoenas a clinical record, the social worker usually must assert that his or her duty to preserve client privacy is more important than the duty to provide the court with confidential client information. This is the assertion of privilege; that is, asserting that one duty has a privilege over another. By asserting privilege, the social worker is fulfilling the responsibility of protecting the client's right to privacy.

Who Holds Privilege?

The client is usually the holder of the privilege. The client has the privilege to assert their right to privacy of their clinical records in court, and the therapist must not breach this privilege unless legally prescribed circumstances give the therapist a responsibility to divulge the information.

Someone other than the client, such as the client's representative or guardian ad litem, may be designated as the holder of privilege under certain circumstances. Privilege is durable and continues to exist in spite of a prior disclosure or the death of the patient. The fact that the therapist made a legitimate report to child protective services does not automatically mean that the client's personal information may be discussed in court.

Patient Access to Records

Clinical records of social workers fall under the laws that regulate medical records.

Patients own their health care information without owning the physical files themselves. Patients have the right to review or get copies of their files. (Health & Saf. Code § 123110, subd. (a))

The therapist may charge up to twenty-five cents per page copied. However, he or she cannot charge when the portion copied is used in an appeal regarding eligibility for a public benefit program. These programs are Medi-Cal, social security disability insurance benefits, and Supplemental Security Income/State Supplementary Program for the Aged, Blind and Disabled (SSI/SSD), unless a private attorney is covering the costs of the appeal. (Health & Saf. Code § 123110, subd. (d))

The patient must be allowed to view records during normal working hours within five days of providing a written request. A copy of the record must be provided or transmitted within fifteen days of a written request, except when it is for support of an appeal for a public benefit, for which the requirement is thirty days.

If the patient feels that the record is incomplete or inaccurate in any way, he or she may submit an addendum of not more than 250 words. The therapist must include it in the record and any full copies of the record. The therapist is not liable for anything the patient puts in the addendum. (Health & Saf. Code § 123111, subd. (a))

A therapist may limit a patient’s access to his or her files if the therapist believes that seeing the file would put the patient at a “…substantial risk of significant adverse or detrimental consequences…” (Health & Saf. Code § 123115, subd. (b)) Instead, the therapist may prepare a summary of the record for the patient. This summary must be provided within ten days. If the record is unusually large, or the patient has been released from an inpatient program within the last ten days, then the therapist has thirty days. (Health & Saf. Code § 123130, subd. (a))

This action must be accompanied by two additional conditions. The therapist must attach, and include in the record, a note explaining the reason for denial of access. The therapist must also be willing to give another professional access to the record. This professional can be, “…a licensed physician and surgeon, licensed psychologist, licensed marriage and family therapist, or licensed clinical social worker, designated by request of the patient.” (Health & Saf. Code § 123115, subd. (b)(2)) The therapist must inform the patient of these options, and make a note in the patient record as to the patient’s choice or response.

The law specifies what is to be included in the summary:

The summary shall contain for each injury, illness, or episode any information included in the record relative to the following:

(1) Chief complaint or complaints including pertinent history.

(2) Findings from consultations and referrals to other health care providers.

(3) Diagnosis, where determined.

(4) Treatment plan and regimen including medications prescribed.

(5) Progress of the treatment.

(6) Prognosis including significant continuing problems or conditions.

(7) Pertinent reports of diagnostic procedures and tests and all discharge summaries.

(8) Objective findings from the most recent physical examination, such as blood pressure, weight, and actual values from routine laboratory tests. (Health & Saf. Code § 123130, subd. (d))

The summary shall contain a list of all current medications prescribed, including dosage, and any sensitivities or allergies to medications recorded by the provider.

The therapist may charge for preparing the report, but only for the time required to prepare it, and with the understanding that the legislature’s intent is that such records be available at the lowest possible cost. (Health & Saf. Code § 123130, subd. (f))

As specified in HIPAA and California law, patients may even append records that they feel are inaccurate or incomplete. (45 CFR § 164.526; Health & Saf. Code § 123111, subd. (a))

Security and Maintenance of Records

Legal and ethical standards require that records be maintained in a secure fashion, and that arrangements be made so that they will be available as legally mandated should such circumstances arise. This topic is treated in more detail in the Record Keeping and Clinical Documentation section.

The California Confidential Medical Information Act (CMIA)

In 1981, prior to the federal HIPAA, California enacted the "Confidentiality of Medical Information Act" (Civil Code Section 56). The CMIA requires that medical information be kept confidential, and includes exceptions that, for the most part, are in harmony with other California and federal laws. An important aspect of the CMIA is its definition of "provider of health care," which includes organizations such as managed care corporations. The definition is so broad that it includes nearly every medical entity licensed in California. It also defines medical information broadly, to include a patient's history, condition and treatments. It states that any such information that can be connected with the patient (is "individually identifiable") is included. This law does not define covered entities in terms of electronic transactions, as it was created before large databases of patient medical information were widely regarded as a concern requiring legislation.

Unprofessional Conduct and Penalties

California therapists may experience three legal consequences for violating legal professional standards such as confidentiality. Therapists may experience some form of sanction from the licensing board, which is the State of California Board of Behavioral Science (BBS), sometimes referred to as the grievance board. This can include requirements such as a period of supervised practice or actual loss of the license to practice. In some cases, a therapist who has lost a license because of unprofessional conduct can get it reinstated by complying with specific conditions required by the BBS. One such condition may be the payment of a penalty that corresponds to the cost of the enforcement action.

If the conduct constitutes a sufficiently serious crime, the justice system may prosecute the therapist. If the client or client representative feels wronged, he or she may sue the therapist (file a civil action, bring suit) for harm (a tort) of some kind. Violation of privacy as a result of mishandling the client’s confidential information is cause for such a law suit (is actionable).

HIPAA

The Health Information Portability and Accountability Act (HIPAA) is the first federal privacy standards act intended to protect patient’s medical records and other health information in the possession of health care providers, including health plans. Congress enacted HIPAA, also known as the Kennedy-Kassebaum Act, in 1996. Developed by the Department of Health and Human Services (HHS), it took effect in 2003. HIPAA provides patients with access to their medical records and gives them more control over their personal health information. The Act is intended to establish a nation-wide floor of privacy protections, meaning that states may maintain or establish more stringent laws without being invalidated by HIPAA. (US Dept. of Health and Human Services, 2000) HIPAA also protects employees who change jobs and protects the rights of people with health insurance. It includes significant privacy, confidentiality, reporting and compliance requirements. (Dauner, 2001)

HIPAA is also intended to make health insurance coverage more available. It does this through means such as improving the transmission of electronic records and providing improved privacy of health and medical information.

HIPAA rules apply to health care providers and organizations that transmit records electronically in carrying out financial transactions or administrative activity such as claims submission. This includes Internet or email transmission, and the use of electronic media such as CD's. Faxing and electronic data storage are not included. (Alameda County Psychological Association, 2003) The individuals and organizations to which HIPAA applies are referred to as “covered entities.” HHS provides a great deal of information, including answers to common questions at www.HHS.gov/ocr/hipaa. (Ibid) It is better known as a means of regulating corporations such as health plans, hospitals and pharmacies that previously were not as accountable for protecting patient confidentiality. However, social workers in solo private practice stand to benefit by adopting HIPAA compliance, particularly regarding informed consent and maintaining separate psychotherapy notes.

HIPAA procedures are in three parts. The Privacy Rule covers when and to whom providers can disclose confidential medical information. The Transaction Rule includes technical aspects of electronic health care transactions, including the formats to use for health care transactions, such as claims. The Security Rule is intended to ensure that confidential electronic medical data is transmitted in a secure manner. For psychotherapists, this requires establishing administrative, physical and technical procedures concerning matters such as the security of offices, files and data. (American Psychological Association Practice Organization, 2005)

Reasons to Comply with HIPAA

Therapists are encouraged to comply with HIPAA because it involves rules that may be considered standard of care, and because the therapist may easily fall under HIPAA because of ways information is managed. For example, the therapist’s billing service may transmit information electronically. HIPAA information pertaining to confidentiality are summarized here. The rules are not very demanding. The fact that much of HIPAA is less stringent than California law has resulted in this section addressing it being fairly short.

The private practitioner is encouraged to pay special attention to two sections in particular. The first is on the Privacy Notice, because it provides guidance for improving informed consent, and for acquiring an authorization for release of information that is especially useful in the Information Age. The second is the section on Psychotherapy Notes. This section can help the practitioner respond efficiently and more securely to the need to transmit information without compromising the most private client information, yet ensure that key clinical and service information is transmitted.

Basics

HIPAA is respectful of state law when it comes to confidentiality and disclosure of health information, referred to in the law as private health information (PHI). As you would expect, it requires written authorization for all disclosures of PHI, but it exempts "treatment, payment or operations" (TPO), such as billing and training.

The law distinguishes between "use" and "disclosure" of PHI. Use refers to transfer of information within an organization that is a covered entity. Disclosure refers to release of information outside of the organization or the psychotherapist's practice.

This material will only cover aspects of HIPAA that require special consideration on the part of the therapist. HIPAA is often less stringent than California laws, so it does not need to be covered fully here.

TPO Uses of PHI

Psychotherapists do not need a separate authorization for "uses" of PHI (as you’ll recall, that is personal health information) as mentioned above. HIPAA lists the following as TPO (again, that is treatment, payment and operations) "uses".

Use by the originator of the psychotherapy notes for treatment

Use or disclosure by psychotherapists for their own training programs in which students, trainees, or practitioners in mental health learn under supervision to practice or improve their skills in group, joint, family, or individual counseling

Use or disclosure by psychotherapists to defend themselves in legal actions or other proceedings brought by their patients. (Alameda County Psychological Association, 2003, referring to Jenson, 2003)

Privacy Notice

Psychotherapists are to provide their patients with a notice that describes the psychotherapist's privacy practices by the first appointment. The psychotherapist must make a good faith effort to get written acknowledgement from clients indicating that they have received this notice, and the notice must be posted in the psychotherapist's office.

Release of Information Form

For specific authorizations to release information, that is, releases that are not covered by the initial TPO uses release, HIPAA has the following criteria for compliance:

Written in plain language

Written in 8 point typeface or larger

Separate from all other documents

Specifically describe health information to be used or disclosed

State the name or function of the person or organization authorized to make such a disclosure

State the date after which the provider can no longer disclose information

State the name or function of the person or organization authorized to receive the information

State specific uses and limitations of the use of the information by the persons authorized to receive it

Advise patient of his or her right to receive a copy of the authorization

Inform client of his or her right to revoke authorization under California law.

Include a statement that the information used or disclosed may be subject to re-disclosure.

For specific authorizations to release information, that is, releases that are not covered by the initial TPO uses release, the client must sign a release form. HIPAA has specific criteria for such a form.

Psychotherapy Notes

One of the protections for the mental health information of clients afforded by HIPAA lies in HIPAA’s designation and use of psychotherapy notes. HIPAA protects psychotherapy notes from the blanket release that allows medical information to be used for administrative purposes. It requires that the notes be protected from view by anyone other than the psychotherapist and anyone to whom the records are specifically authorized for release. Its protections for psychotherapy notes include the provision that they be separate from the patient’s main record. (CFR 45 § 164.501, 2007) This helps ensure, for example, that the psychotherapy notes will not be accessed by a clerk out of curiosity. (US Department of Health and Human Services, 2000; Felt-Lisk, & Humensky, 2003)

In order to keep certain information readily accessible, HIPAA requires that psychotherapy notes exclude such information; it must be kept exclusively in the main record. This is because the main record is used for TPO (treatment, payment and operations). Treatment-related information must be available for situations in which other clinicians must see the record.

The information that must not be separate from the main record, that is, that must not be in psychotherapy notes, is, “session start and stop times, medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis and progress,” and they “must be maintained separately from the medical record.” (HIPAA Final Privacy Rule, Part II)

HIPAA defines psychotherapy notes as pertaining to “the contents of conversation” in order to help maintain a viable primary record, as well as prevent or limit distribution of the most private information. Below is the definition of psychotherapy notes as in HIPAA:

"Psychotherapy notes means notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual's medical record." (HIPAA Final Privacy Rule, Part I)

Many therapists consider the requirement to maintain psychotherapy notes separate from the rest of the case record to be an administrative hassle. However, this habit makes it easy to deal with things like audits and releases of information to organizations or individuals that do not need to see the psychotherapy notes. It gives the therapist more discretion in cordoning off information that is especially important to protect. Larger organizations that deal with such issues regularly and must deal with a larger staff pool are the most likely of all providers to have detailed and secure protocols for adhering to HIPAA standards such as those pertaining to psychotherapy notes. However, an individual therapist in private practice can adhere to these requirements without much fanfare.

Record Maintenance

HIPAA requires that records be maintained for six or more years from their date of creation. This is trumped, however, by the more stringent California law requiring that all medical records be maintained for at least seven years, and one year past the age of majority. Clinical professional organizations and state laws may pose even longer durations.

Client Access

As with state law, HIPAA allows clients to make amendments to their records. However, HIPAA is relatively looser when it comes to client's rights, for example, by allowing the provider to disallow amendment on the basis that "the PHI is accurate and complete.” If denying the request, the therapist must provide a prompt denial in writing that includes the basis for the denial, the client's right to contest, a statement that the client can have the therapist include the copy of the request in the record and its disclosures, and instructions for filing a complaint with the Secretary of Human Services.

Limited Information to Law Enforcement

To better understand the meaning of “minimum disclosure” of PHI, we will look at the information HIPAA allows to be disclosed to law enforcement. Bear in mind, however, that California law is more restrictive than HIPAA. Thus, a court-order may be necessary for the therapist to release the information listed here. HIPAA allows disclosure of information to law enforcement for locating fugitives, material witnesses or missing persons. In keeping with its doctrine of minimal disclosure, HIPAA limits the information that can be released to the following items. As you can see, some of the items are more germane to medical treatment facilities such as hospitals than they are to a psychotherapist’s office.

· Name and address

· Date and place of birth

· Social security number

· ABO blood type and rh factor

· Type of injury

· Date and time of treatment

· Date and time of death

· A description of distinguishing physical characteristics

A court order, warrant or written administrative request could require the therapist to provide additional information.36
By “administrative request” HIPAA is referring to,
…an administrative subpoena or investigative demand or other written request from a law enforcement official. Because an administrative request may be made without judicial involvement, the Rule requires all administrative requests to include or be accompanied by a written statement that the information requested is relevant and material, specific and limited in scope, and de-identified information cannot be used. (45 CFR 164.512 f 1 ii C, 45 CFR 164.512 f 2)

Security of Files

Files must be secure. The therapist must be the only person with access to the computer that holds the patient files and to backup files. Any hard copies (paper files) must be locked in a secure file cabinet. (Jensen, 2008)

Protections for Patients

HIPAA provides protection of patient medical information in the following areas, according to HHS30
Access to Medical Records: This includes the ability to see and obtain copies of records and even request corrections. Patients generally should be able to see and obtain copies of their medical records and request corrections if they identify errors and mistakes.
Limits on Use of Personal Medical Information: While the Privacy Rule allows providers to provide patient medical information without a specific medical release beyond the one initially signed by the patient for specific clinical and administrative purposes, it also sets limits on how covered entities my use the information. For example, covered entities must use the minimum amount of information necessary for the permitted function, and must use it only in service of providing health care. may not be used for purposes not related to health care, and covered entities may use or share only the minimum amount of protected information needed for a particular purpose. This is referred to as the “minimum necessary” principle.31
Prohibition on Marketing. As stated above, patient information may not be used without permission for marketing purposes. The prohibition on marketing does not limit communicating with patients regarding treatment options such as disease-management programs that might be considered a form of marketing, were it not in service of the patient’s health care.
Stronger State Laws: As mentioned, the federal privacy standards do not interfere with state laws that provide additional or more stringent privacy protections for patients. However, the Act also does not prevent states from requiring certain types of disclosures pertaining to public health, such as reporting certain incidences of infections disease. It is important for therapists to know when their state laws and ethical guidelines are more stringent than HIPAA, and to adhere to the more stringent rules. For example, there are uses of private information for which HIPAA does not require a specific release, while state law does.
Confidential Communications: HIPAA requires covered entities to communicate with patients in a manner that does not jeopardize the security of patients’ medical information. This includes complying with reasonable requests by patients such as not leaving messages at the patient’s work number.
Complaints: The Act gives consumers the right to file formal complaints regarding violations of privacy. The HHS has an Office of Civil Rights (OCR) that is charged with enforcing HIPAA and investigating patient complaints. Covered entities are required to included information on filing complaints in the required notice of privacy practices. HHS makes information available on this from their web site at www.HHS.gov/ocr/hipaa and by phone, 866/627-7748.

Disclosing Confidential Information

Authorized Release of Information

The client may consent to a release of confidential information for many reasons, the chief of these being the provision of information to another care provider, such as a psychiatrist or new psychotherapist. Other reasons include providing information that verifies compliance with the requirements of an outside entity such as the client’s probation officer or employer.

Under HIPAA, an organization that provides clinical services may allow staff to have access to client information in order to maintain records, supervise clinicians, do case management and other tasks. Similarly, an individual psychotherapist may reveal information to a person or organization that provides administrative services such as billing. In all cases, the information must be limited to what is necessary to provide the service. This is referred to as the “minimum necessary” standard. (CFR 45 § 164.502, subd. (b)) The people who have access to that information must treat it as confidential medical information.

The psychotherapist must consider the welfare of the client, even when the client has authorized or demanded a disclosure. If the psychotherapist is convinced that the disclosure is not in the best interest of the client, then the psychotherapist may need to refuse to cooperate with the disclosure and attempt to dissuade the client from making such a disclosure. Consider the example of a client who thinks that providing information to a physically abusive spouse will help the spouse develop more empathy. In such a case, the psychotherapist would have to consider whether the disclosure might actually worsen the danger.

Insurers

Insurance companies, including managed care companies, have the responsibility to protect privacy. This includes having systems and policies in place to accomplish such protection. Clients are not always aware of what information will be sent to insurers, particularly where managed care policies include reviewing clinical information in order to determine whether to authorize additional treatment or a change in level of care. Informed consent dictates that social workers provide enough information about their relationship with the insurer that the client can make informed choices regarding their confidentiality.

For example, a client may not want certain diagnoses to become preexisting conditions affecting their insurability after a change in employment (and insurance policies) that could take place in the future. In some cases, clients may prefer to pay privately or limit the focus of therapy based on this information. In any case, the social worker should attempt to limit the information provided to only that which is necessary to conduct business with the insurance company, and only in so far as the release of information authorized by the client permits.

Compulsory Mental Health Treatment

Additional confidentiality issues arise when there is compulsory mental health treatment. This occurs when people are compelled by organizations such as courts or employers to seek mental health assessment and treatment for various reasons. A court may compel an individual who has been convicted for driving under the influence of alcohol or drugs to undergo a substance abuse and mental health assessment. The court may require a period of time during which the client must provide urine screens in order to test for evidence of current substance abuse. A person failing to comply with the court orders can suffer legal consequences that may include imprisonment.

Private entities such as employers may compel people as well. For example, many employers have policies that allow them to suspend the disciplinary process. This can prevent the employee from being fired so long as the employee cooperates with a mandatory referral process. This process can include a referral to the company employee assistance program (EAP), and can require compliance with the recommendations of that program. Ultimately, the employee must improve his or her functioning within a period of time that does not constitute a hardship for the employer. (Yourell, 2007)

The social worker must deal with contractual obligations with the organization as well as abide by the ethics and laws of confidentiality pertaining to the patient. Generally, in a compulsory referral, the patient will release the social worker to provide certain limited communications with the referring organization. Usually, the patient can terminate that release at any time. This normally means that the referring organization will consider the patient to be “out of compliance” with the mandatory referral, and impose whatever disciplinary process is slated to occur in the absence of such compliance.

Requests for Information about a Client

Individuals or organizations may request or demand information from a social worker about a client, or someone they believe to be a client. The parties requesting information may include family members, attorneys, journalists, law enforcement officers, neighbors.

A straightforward way for the social worker to assert privilege is to state, “I can neither confirm nor deny that the individual is a client, and I cannot divulge confidential information regarding anyone who is a client.” This statement is true even if there is public knowledge or the person or organization knows of the treatment. It is true even though the client is speaking publicly about the treatment. It is even true when there is an exception to confidentiality, such as child abuse, because exceptions to confidentiality only allow the information to go to specified people or agencies under specific circumstances.

Sometimes the request may come from a person who seems appropriate to give information to, but is legally prohibited from getting it without a release of information. Without a minor's consent, the representative of the minor cannot see the minor's records if that minor is legally able to consent to the treatment.

Other reasons to withhold: For reasons similar to those allowing early age of consent (discussed later), a minor's representative may not have access to the minor's records where it would patient records requested by the representative would have a, "detrimental effect on the provider's professional relationship with the minor patient or the minor's physical safety or psychological well-being. (Health & Saf. Code § 123115 subs. (a)(2)) Note that the act of withholding the records under these circumstances is afforded legal protection from liability so long as the provider does not do so, "in bad faith." (ibid)

Lawsuits, Subpoenas, and Privilege

The subpoena: When the social worker receives a subpoena requesting client records, the social worker is faced with two conflicting duties: the duty to protect client confidentiality, and the duty to respond to the subpoena. The social worker must respond to a subpoena, because subpoenas have the force of law. Attorneys are officers of the court, and require information to fulfil their duty in cases.

Assertion of privilege: However, the subpoena does not eliminate the duty of the therapist to protect the client's confidentiality. Therefore, a typical response to such a subpoena is for the therapist to "assert privilege." This is the assertion to the court that the information should be considered to have privileged status, that is, that the duty to protect the privacy of the client should trump the duty to respond to the subpoena.

The court ruling: The court will issue a ruling. It will either agree with the therapist or determine that some higher good outweighs the privacy of the client. In the latter case, the court will compel the therapist to provide the information. If the therapists resists, the penalties may include fines and imprisonment. The law protects the therapist who cooperates with a court-ordered release of information from civil liability. In other words, the client cannot successfully sue the therapist for cooperating with the court order.

The client's role: The client is not necessarily a bystander in this process. It is very important for the client to plan the response to a subpoena with the help of an attorney, because there are so many legal variables. They may attempt to have the subpoena quashed (usually on a technical ground) or modified. They may even attempt to negotiate with the party issuing the subpoena. (Alban, 2007b) Subpoenas are generally issued during the discovery phase in preparing for trial. Attorneys often cast a wide net in seeking information; not knowing in advance what information will be of use. (Alban, 2007c) This means that there may be reason to quash or negotiate.

Key points: The protection of confidentiality is a duty. Privilege is an exception to a duty. In this case, it is an exception to the duty to respond to a subpoena for confidential information. Assertion of privilege refers to the therapist telling the court that he or she wishes to fulfill the duty to protect confidential information rather than duty to respond to the subpoena.

Unsolicited Information about the Client

An individual may contact the social worker with information about the client. The social worker may consider it in the best interests of the client to accept the information, but should contact the client promptly to disclose that this activity has taken place.

Exceptions to Confidentiality

Legal Limits

Confidentiality has its limits, and California law spells out several exceptions to client confidentiality. They are threat of harm to self or others, certain lawsuits, a court order, detention of a mentally disordered person for evaluation, and reasonable suspicion of abuse of a minor or dependent adult.

Threat of Harm to Self or Others

Introduction

There are various ways a person can become a threat of harm to self or others. Risk of suicide and planning to physically harm someone are examples. The social worker must respond appropriately to these risks, and the level of risk is a factor in choosing a response.

Client confidentiality must be breached when there is sufficient reason to believe that the client may pose a threat of harm to self or others. The degree to which an LCSW is permitted to breach confidentiality in order to prevent harm varies from state to state. Depending on the jurisdiction, such a breach may be mandatory, discretionary, or prohibited; it may also vary depending on whether the threat of harm is to the client herself or to third parties.

When the threat of suicide or violent behavior is significant, client should be hospitalized for stabilization and further evaluation, and the social worker should provide to the hospital all information necessary for this. The social worker should encourage the client to participate in hospitalization voluntarily, as a social worker would for any change of treatment or level of care. The social worker should explain the nature of the process, the rights of the client, the ways the social worker will support the process, and the client’s ability to stay with the current social worker upon returning to the community. This may help elicit cooperation from the client.

Involuntary Commitment

When the client is uncooperative, the social worker must notify the police to initiate evaluation by the resource designated by the county for this purpose. This can result in temporary hospitalization for further evaluation on the basis that the patient is gravely disabled. These clients may be hospitalized involuntarily (held) for seventy-two hours (or longer in some cases) for assessment under Welfare and Institutions Code 5150.

In order for the hold to take place, the designated professionals must make the determination that the individual is gravely disabled. Although the social worker, the neighbors, or the person’s family may feel that he or she is gravely disabled, the professionals making the determination may not agree that a hold can be done according to the specific requirements of the law. In that case, the individual is released unless he or she is willing to receive residential assessment and treatment services voluntarily. Even then, there may not be funding for that individual to receive the services if the person’s symptoms do not rise to a fundable level, or the person cannot afford to pay privately.

The telephone call should be made immediately, and if the client has left or broken contact, the social worker should provide the last known and most likely locations of the client. If the status of the client is uncertain and the social worker cannot reach the client, the social worker can ask that the police perform a “welfare check” by going to the client’s home to determine if additional action is necessary. This can be upsetting to a client, but it is better than allowing risk of harm to persist.

When the client is in a residential setting such as a hospital, it is important that the social worker encourage the providers there to get a release of information allowing them to communicate with the social worker. This way, the social worker may participate in the return of the client to the community and support the treatment plan that is established prior to release.

Additional information on this subject is contained in the relevant law, and in the course on confidentiality.

Tarasoff and Dangerous Patients

The Tarasoff rulings and subsequent legislation have to do with the duty of mental health professionals to protect a person who is the intended target of a potentially violent client. The issue has a history of court rulings that have dramatically changed in tone over time, and legislation that was altered significantly as a result of lobbying by the clinical community. (Weinstock, Vari, Leong, & Silva, 2006)

Duty to protect: When a client (or a family member of the client) discloses that the client poses a threat of grave bodily injury to an identifiable victim, the social worker has a duty to protect the intended victim. This has been referred to as a duty to warn because of the related 1974 California Supreme Court case. However, warning is just one aspect of the duty to protect the client currently. (Berger & Berger, 2009) This duty can be “discharged” by informing the intended victim and the police of the threat. Generally, this should be done immediately. The law is worded so that there may be other ways of discharging the duty. (Weinstock, Vari, Leong, & Silva, 2006) However, there is a tradition of interpreting Tarasoff responsibilities as including a duty to warn the intended victim as well as the police.

According to section 1010 of the Evidence Code, "The information may be disclosed, consistent with applicable law and standards of ethical conduct, by a psychotherapist, as defined in Section 1010 of the Evidence Code, if the psychotherapist, in good faith, believes the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims, and the disclosure is made to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat."

A successful lawsuit and subsequent ruling: In the original incident that led to the Tarasoff ruling by the California Supreme Court, a psychologist was successfully sued for failing to warn an individual that his client posed a threat to that person. The psychologist’s client killed the person.

After the first California Supreme Court ruling, the court revisited the decision in an unusual move. It established, in this second ruling in 1976, a duty to protect, avoiding language expressing a duty to warn. (Ibid) Nonetheless, the legislation, as it stands now, includes mention of a duty to warn. Given the variability in court judgments regarding Tarasoff, and given the existence of jury instructions that affirm a duty to warn, provision of a warning may become more than a safe harbor from liability, but a requirement, based on additional case law.

Developments in law: Numerous states have created legislation that is intended to reflect the intentions of the Tarasoff rulings. In California, the law does not establish a direct mandate to disclose. Instead, it protects the social worker from liability for making the disclosure.

A California appeals court ruling in 2004 extended the interpretation of this law to include information that comes from the client’s immediate family. (Ewing v. Goldstein, 2004) This occurred after two court cases in which clinicians were held responsible for failing to warn an intended victim when the information regarding the threat came from an immediate family member. (Ibid)

(a) There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist as defined in Section 1010 of the Evidence Code in failing to warn of and protect from a patient's threatened violent behavior or failing to predict and warn of and protect from a patient's violent behavior except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims. (Alban, 2007c)

(b) There shall be no monetary liability on the part of, and no cause of action shall arise against, a psychotherapist who, under the limited circumstances specified above, discharges his or her duty to warn and protect by making reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency. (Ibid)

The social worker is not expected to attempt to prevent violent acts that cannot reasonably be predicted. It is well known that mental health professionals have a very limited ability to foresee violence. In the case against a psychiatrist who failed to prevent the attempted assassination of president Ronald Reagan by a mentally ill man, a Colorado District Court wrote, “It is this requirement of foreseeability which has led numerous courts to conclude that a therapist or others cannot be held liable for injuries inflicted upon third persons absent specific threats to a readily identifiable victim.” (Brady v. Hopper, 1983) The court ruled in favor of the psychiatrist (defendant) even though it accepted the notion that the psychiatrist had provided substandard care. (Ibid)

Limiting liability: Nonetheless, conscientiously documenting sound clinical reasoning can reduce liability. Even if the social worker did not act to prevent violence that was foreseeable, well-reasoned clinical judgement may result in a finding for the social worker. Though the judgement was regrettable in hindsight, it matters if it was supportable when it took place. (Molbert & Beck, 2003, referring to White v United States, 1986) A failure to demonstrate sound clinical judgement heightens liability. Courts have found against clinicians that have not adequately assessed the patient. That happened to a psychiatrist who failed to review existing records of a patient who later became dangerous. (Ibid, referring to Jablonski v United States of America, 1983, and Hamman v County of Maricopa, 1989)

The very nature of a diagnosis may afford some protection in the duty to warn or hospitalize. For example, in finding in favor of the VA in such a case, the court stated, “It is impossible to predict future behavior in paranoid schizophrenics because their behavior may completely change in a matter of minutes.” (Ibid, referring to Lindsey v United States of America, 1988)

Challenges: The issue of reporting, hospitalizing or warning can become murkier, as when a person has a substance use disorder as well as a safety-sensitive position, such as a physician or airline pilot. Legal consultation is important in these cases because they may be very nuanced. (Leslie, 2005d) A clinician who reported an alcoholic to the authorities on the basis that the individual admitted to repeatedly driving while intoxicated was successfully sued by the client for breach of confidentiality. (Yourell, 2007, referring to Martinez, 1999)

From the point of view of society, the challenge of such cases results from the inherent tension between the duty to protect public safety, and the duty to preserve public utilization of mental health services. Too much disclosure will erode public trust in confidentiality, alienating people from mental health services. Too little disclosure will result in increased harm to citizens. (Eddington, Shuman, 2007)

Criminal Activity

Criminal activity does not, in itself, pose a mandated reporting condition. The value of professional intervention to society would be substantially impaired if social workers were required to report all criminal activity, because this would pose a major barrier to seeking treatment for many people. The social worker must consider the elements already discussed, such as threat of harm to self or others and the definition of abuse.

Detention of a Mentally Disordered Person for Evaluation

Persons who become so disabled as to be unable to engage in adequate self-care are considered gravely disabled. These clients may be hospitalized involuntarily (held) for seventy-two hours (or longer in some cases) for assessment under Welfare and Institutions Code 5150. If it is determined that the client continues to be gravely disabled, the client may be held for an additional fourteen days. Under some circumstances, such as the client making a threat of suicide, the period can be extended to an additional fourteen days. If, at the end of that period, the client is determined to pose immanent threat of harm, the client may be detained for another ninety days.

The therapist who believes that a client is gravely disabled can initiate a hold (also called a 5150). This is accomplished by contacting the police, the Psychiatric Emergency Team (PET) of a facility that the county has certified to hold a patient, or other professions as designated by the county such as a Mobile Crisis Unit. This act involves releasing confidential information about the client, but must be limited to the information necessary to complete the hold and ensure effective services. This should include the contact information for other treatment providers involved in the client’s care. For example, it is important that the hospital communicate the psychiatrist involved, so that medication is not inappropriately stopped, changed, or inadvertently combined.

In order for the hold to take place, the designated professionals must make the determination that the individual is gravely disabled. Although the therapist, the neighbors, or the person’s family may feel that he or she is gravely disabled, the professionals making the determination may not agree that a hold can be done according to the specific requirements of the law. In that case, the individual is released unless he or she is willing to receive residential assessment and treatment services voluntarily. Even then, there may not be funding for that individual to receive the services if the person’s symptoms do not rise to a fundable level, or the person cannot afford to pay privately.

Court Ordered Disclosures

When ordered by the court to disclose information about a client who will not authorize the release, the social worker is not obligated to refuse to cooperate with the court. (Evid. Codes §§ 1014, 1015) Social workers are not expected to endure penalties for contempt of court, and it is to be presumed that the court has determined that the needs of society in such a case outweigh the values of confidentiality to the client and to society that are described in the introduction to this material.

The NASW Code of Ethics addresses this with sections such as the following:

Social workers should protect the confidentiality of clients during legal proceedings to the extent permitted by law. When a court of law or other legally authorized body orders social workers to disclose confidential or privileged information without a client's consent and such disclosure could cause harm to the client, social workers should request that the court withdraw the order or limit the order as narrowly as possible or maintain the records under seal, unavailable for public inspection. (NASW, 1999)

Reasonable Suspicion of Abuse or Neglect

Social workers are among the entities that are legally “mandated reporters” of suspected or alleged abuse or neglect of children, elders or dependent adults. (Pen. Code § 11165.7, subd. (a)) Children are defined as persons under the age of eighteen. (Pen. Code § 11165) Elders are defined as persons 65 years or older. (Pen. Code § 15610.27) Dependent adults are defined as persons between the ages of 18 and 64 whose physical or mental limitations restrict their ability to care for themselves, specifically:

"Dependent adult" means any person between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age. (b) "Dependent adult" includes any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility, as defined in sections 1250, 1250.2, and 1250.3 of the Health and Safety Code. (Pen. Code § 11164)

Reporting

The mandated reporter does not have to produce conclusive proof of abuse or neglect; rather, he or she must report “reasonable suspicion” of abuse when functioning within his or her professional capacity. The report must immediately be made to the police or to the Department of Social Services. It must also be provided in writing within thirty-six hours for children, or within two working days for adults. (Pen. Code 11166 a, 15630 a) The written report can sent by mail, fax, or electronic transmission.

The therapist need not be concerned with whether or not an act is legal or illegal by becoming occupied with the definition of statutory rape or other legal concepts. Rather, he or she should know the mandatory reporting requirements specified by law and be prepared to review the circumstances in question with an attorney, the appropriate authorities, or both. Contacting authorities such as a child welfare agency does not constitute reporting in itself. Agency workers can help determine if a report is required. Agency workers can help determine by phone if a report is actually required.

The Welfare and Institutions Code only mandates that social workers disclose information with they encounter it in the course of professional activity, and only when there is present danger. The social worker may determine that there is present danger, even though a client disclosed abuse from the past. (Crime and Violence Prevention Center, 2006) For example, if an adult client reports sexual abuse by an individual who is currently in a household with children, the children may be at risk for abuse. A supervisor or other staff person may not interfere with a mandated reporter’s attempts to report.

When the therapist is in doubt as to whether he or she should make a report of suspected neglect or abuse, the therapist should consult with the appropriate welfare department. The staff of child or adult protective services can help the therapist determine whether to make a report. This also helps to protect the therapist from liability. The therapist should make a case note indicating who the call was with, their position in the agency, and clearly explaining the result of the call and the basis for the decision about reporting. The case managers of these departments and their supervisors and legal counsel make decisions about abuse and neglect reporting and responding continually, and a very familiar with the laws and resources involved. In the rare case that therapist is still uncertain after this, he or she may need to consult with an appropriate attorney. (Crime and Violence Prevention Center, 2006)

If the therapist is uncertain who to contact about a decision to report suspected neglect or abuse, a call to the welfare department or police department will get the therapist to the correct person. Generally, therapists and agency workers prefer to contact the proper office of the welfare department because that agency will assist in immediately planning a course of action that addresses clinical case management issues. The case manager will take care of contacting law enforcement. However, if the situation may involve immanent danger, it is best to contact law enforcement first.

If suspected or alleged adult abuse has occurred in a long-term care facility, except a state mental health hospital or a state developmental center, the report is to be made to the local ombudsperson or the local law enforcement agency. If it took place in a state mental hospital or a state developmental center, the report is to be made to designated investigators of the State Department of Mental Health or the State Department of Developmental Services, or to the local law enforcement agency.

The therapist is not required to report a claim of abuse or neglect if the person reporting has a mental illness or dementia, there is no corroborating evidence or information, and the clinician reasonably believes that the abuse did not occur. (Welf. & Inst. Code § 15630b3, subd. (a))

Failing to report child, elder or dependent adult abuse or neglect is punishable by up to six months in the county jail, by a fine of up to one thousand dollars ($1,000), or by both a fine and imprisonment. The consequences are more serious if the therapist fails to report and someone is killed or seriously injured. This also applies to a supervisor or other person who interferes with reporting. The punishment is up to one year in a county jail, a fine of up to $5,000, or both. (Welf. & Inst. Code § 15630h; Pen. Code §§ 11166, subd. (c), 11166.01, subd. (a)(b))

Supervisors and other authorities may not impede reporting, but there may be administrative policies affecting how the report is managed so long as they do not conflict with the law. Being a member of the clergy does not free a therapist of any reporting requirements. Nor does a lack of training in identification and reporting of child abuse. *67

(Pen. Code 11164-11174.3 e)

If more than one mandated reporter becomes aware of the suspected or alleged abuse, only one of them needs to make the report. However, if the designated reporter fails to make the report, another of the parties must make the report within the specified time frames. Since the first report needs to be made right away, the social worker cannot allow for any delay.

CANRA

Much of the law pertaining to abuse and neglect of children is known as The California Child Abuse and Neglect Reporting Act (CANRA) and is comprised of Penal Code sections 11164-11174.4. (Pen. Code § 15610.23, subd. (a)(b))

Definitions: Penal Code

Child molestation is covered in the law regarding lewd and lascivious acts. It defines them as intentionally touching any part of a child’s body, “with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of that person or the child .” (Pen. Code § 11166.05)

When charges are brought under this law, they are for severely exploitive incidences, such as the molestation of young children.

Lewd and lascivious are vague and quaint-sounding terms, but the law clearly defines them as follows:

· Any lewd and lascivious touching of a minor accomplished with the use of force, violence, duress, menace or fear of immediate and unlawful bodily injury to the victim or another .

· Any lewd and lascivious touching of a child under 14 years old, if the other person is 14 years old or older, irrespective of consent .

· Any lewd and lascivious touching of a child 14 years old, if the other person is 24 years old or older, irrespective of consent .

· Any lewd and lascivious touching of a child 15 years old, if the other person is 25 years old or older, irrespective of consent .

California law defines sexual abuse as “sexual assault” or “sexual exploitation .” (ibid)

The California Penal Code defines sexual assault:

As used in this article, "sexual abuse" means sexual assault or sexual exploitation as defined by the following:

(a) "Sexual assault" means conduct in violation of one or more of the following sections: Section 261 (rape), subdivision (d) of Section 261.5 (statutory rape), 264.1 (rape in concert), 285 (incest), 286 (sodomy), subdivision (a) or (b), or paragraph (1) of subdivision (c) of Section 288 (lewd or lascivious acts upon a child), 288a (oral copulation), 289 (sexual penetration), or 647.6 (child molestation).

(b) Conduct described as "sexual assault" includes, but is not limited to, all of the following:

(1) Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen.

(2) Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person.

(3) Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, except that, it does not include acts performed for a valid medical purpose.

(4) The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.

(5) The intentional masturbation of the perpetrator's genitals in the presence of a child.

The California Penal Code also defines sexual exploitation:

(c) "Sexual exploitation" refers to any of the following:

(1) Conduct involving matter depicting a minor engaged in obscene acts in violation of Section 311.2 (preparing, selling, or distributing obscene matter) or subdivision (a) of Section 311.4 (employment of minor to perform obscene acts).

(2) Any person who knowingly promotes, aids, or assists, employs, uses, persuades, induces, or coerces a child, or any person responsible for a child's welfare, who knowingly permits or encourages a child to engage in, or assist others to engage in, prostitution or a live performance involving obscene sexual conduct, or to either pose or model alone or with others for purposes of preparing a film, photograph, negative, slide, drawing, painting, or other pictorial depiction, involving obscene sexual conduct. For the purpose of this section, "person responsible for a child's welfare" means a parent, guardian, foster parent, or a licensed administrator or employee of a public or private residential home, residential school, or other residential institution.

(3) Any person who depicts a child in, or who knowingly develops, duplicates, prints, or exchanges, any film, photograph, video tape, negative, or slide in which a child is engaged in an act of obscene sexual conduct, except for those activities by law enforcement and prosecution agencies and other persons described in subdivisions (c) and (e) of Section 311.3.

Definitions: Welfare and Institutions Code

The California Welfare and Institutions Code lists the types of abuse that are to be reported:

In respect to minors, a psychotherapist is mandated to report non-accidental injury inflicted by others; sexual abuse; unjustifiable mental suffering (as in a young child witnessing domestic violence); neglect; cruelty; statutory rape (minor under 16 and other 21 or older, even if consensual); lewd and lascivious conduct (minor under 16 and other 10 years older, even if consensual); consensual sexual contact between minors (where one is 14 years of age and the other is under 14 years of age). (Welf. & Inst. Code § 18951, subd. (f)(f))

The code also addresses abuse of dependent adults and elders:

“In respect to elderly or dependent adults, a psychotherapist is mandated to report physical abuse, including sexual assault; misuse of physical or chemical restraint; neglect; fiduciary abuse; neglect; and isolation.” (Ca Welf. & Inst. Code §§ 15630-15632, 15610-15610.65, 15633-15637)

Bear in mind that many of these terms are defined in the Penal Code sections referred to in this training.

Emotional Abuse

The social worker is not required to report emotional abuse, but the law protects the clinician from liability if he or she reports it. (Pen. Code 11166.05) Emotional abuse is a sufficiently gray area, that it is left to the clinical judgement of the social worker as to whether it is reportable. It may appear confusing that, despite the optional nature of emotional abuse reporting, the law requires that the social worker report “unjustifiable mental suffering.” This language helps to draw a line between a judgment call about the words a parent uses and a circumstance that clearly should not be tolerated, such as “a young child witnessing domestic violence.”

The law states that certain evidence can give weight to, or at least help direct, concerns about emotional abuse by pointing out what constitutes evidence of such abuse, stating that, “Any mandated reporter who has knowledge of or who reasonably suspects that a child is suffering serious emotional damage or is at a substantial risk of suffering serious emotional damage, evidenced by states of being or behavior, including, but not limited to, severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, may make a report to an agency specified in Section 11165.9.” (Ibid)

Sex with Former Therapist

If a social worker learns of sex between an adult client and a former therapist, the social worker is not permitted to report this. It is protected, private information. However, the social worker is required to give the patient the brochure entitled, "Professional Therapy Never Includes Sex" by the California Department of Consumer Affairs, and to discuss the brochure with the patient. (Business and Professions Code § 728, subd. (a))

California Laws and the Required Booklet

If a therapist learns of sex between an adult client and a former therapist during the course of prior treatment, the therapist is required to give the patient the brochure entitled, "Professional Therapy Never Includes Sex" by the California Department of Consumer Affairs, and to discuss the brochure with the patient.

“The course of a prior treatment” is defined as the period of time during which a patient first commences treatment for services that a psychotherapist is authorized to provide under his/her scope of practice, or that the psychotherapist represents to the patient as being within his/her scope of practice, until the psychotherapist-patient relationship is terminated.

There is no mandated reporting responsibility pertaining to sex between psychotherapists and patients. In fact, psychotherapists are not permitted to report this. It is protected, private information belonging to the patient, unless there is another obligation to report, such as in the case of sex with a minor.

The booklet itself begins with a message to consumers that stresses the importance of professionalism and the mandate for psychotherapists to avoid sexual contact with patients:

As a reader of “Professional Therapy Never Includes Sex,” you may be a California consumer concerned about the conduct of your therapist. You may be a licensed therapist, or training to become a therapist. In any case, it’s good to know more about the high standards of professional conduct expected – and required — in the therapy relationship. Consumers are looking for professionals they can trust. Therapists value the trust of their patients. When this mutual trust is violated by sexual exploitation, everyone loses. The patient loses an opportunity for improved health and becomes a victim. The therapist stops being a healer and becomes a victimizer. And the profession itself loses when the good reputation of the many is diminished by the illegal conduct of a few. The California Department of Consumer Affairs is dedicated to working with its professional licensing board partners to protect and educate consumers. If you are a victim of sexual abuse by a therapist, it’s important for you to report your experience to the board that licenses your therapist. This booklet offers guidance and resources for consumers. For more consumer guidelines and information, you may contact the appropriate licensing board or professional association, or contact the Department of Consumer Affairs at (800) 952-5210 or www.consumer.ca.gov.

The booklet explains how and why it was developed as follows:

California’s lawmakers, licensing boards, professional associations and ethical therapists want such inappropriate sexual behavior stopped. This booklet was developed to help patients who have been sexually exploited by their therapists. It outlines their rights and options for reporting what happened. It also defines therapist sexual exploitation, gives warning signs of unprofessional behavior, presents a “Patient Bill of Rights,” and answers some frequently asked questions.

The booklet points out that it is not just referring to overt sex, but also to more subtle sexual behavior, saying, “It also never includes verbal sexual advances or any other kind of sexual contact or behavior. Sexual contact of any kind between a therapist and a patient is unethical and illegal in the state of California. Additionally, with regard to former patients, sexual contact within two years after termination of therapy is also illegal and unethical.”

The booklet stresses the potential for harm, saying,

Sexual contact between a therapist and a patient can also be harmful to the patient. Harm may arise from the therapist’s exploitation of the patient to fulfill his or her own needs or desires, and from the therapist’s loss of the objectivity necessary for effective therapy. All therapists are trained and educated to know that this kind of behavior is inappropriate and can result in the revocation of their professional license… Many people who endure this kind of abusive behavior from therapists suffer harmful, long-lasting emotional and psychological effects. Family life and friendships are often disrupted, or sometimes ruined.

It deals with boundary issues, helping the reader understand how the dynamics of therapist authority or idealization, and patient need, can lead to boundary violations that may include sex, and loss of the investment that the patient has made in therapy:

Therapists are trusted and respected, and it is common for patients to admire and feel attracted to them. However, a therapist who accepts or encourages these normal feelings in a sexual way - or tells a patient that sexual involvement is part of therapy - is using the trusting therapy relationship to take advantage of the patient. And once sexual involvement begins, therapy for the patient ends. The original issues that brought the patient to therapy are postponed, neglected, and sometimes lost.

It addresses issues that may thwart recovery of self esteem and assertive action, by telling the reader who has had a sexual relationship with a prior psychotherapist not to be impeded by guilt:

Remember: It doesn’t matter if you, the patient, started or wanted the sexual involvement with the therapist. Therapists are responsible for keeping sexual intimacy out of the therapy relationship and are trained to know how to handle a patient’s sexual attractions and desires.

In an attempt to help such patients link symptoms with the experience, the booklet lists the following signs of a need to recover:

· Guilty and responsible — even though it’s the therapist’s responsibility to keep sexual behavior out of therapy.

· Mixed feelings about the therapist — protectiveness, anger, love, betrayal.

· Isolated and empty.

· Distrustful of others or your own feelings.

· Fearful that no one will believe you or understand what happened, or that someone will find out.

· Confused about dependency, control and power.

You may even have nightmares, obsessive thoughts,
depression, or suicidal or homicidal thoughts. You may feel
overwhelmed as you try to decide what to do or whom to tell.

An underlying current of the document is to encourage reporting, as in the text addressing the need to face the issue in the service of personal recovery:

It’s essential that you face what happened. This may be painful, but it is the first major step in healing and recovering from the experience. You may have positive and negative feelings at the same time, such as starting to feel personal control, being afraid of what may happen in the future, remembering the experience, and feeling relieved that the sexual relationship is over.

The second step in the healing process is to decide what YOU
want to do next. Try to be open-minded about your options.

There is a relatively small amount of text regarding issues of recovery, and this is primarily indicating the type and sources of help the individual may seek. In the section “Where to Start,” there are three steps. The first step is to “talk to someone who will understand what you’re going through.” The resources referred to later consist of “Sexual Assault/Crisis Centers,” therapy and support groups, but no specific contact information for resources, except for using a professional association for finding a therapist. The text also offers the possibility that the reader, “may wish simply to move on past this experience as quickly as possible and get on with your life. Remember — you have the right to decide what is best for you.”

The text from this point provides extensive instructions on reporting the sexual involvement in the section “Your Reporting Options,” and options for taking legal action against the therapist in the sections “More About Civil Action” and “More About Criminal Action.”

The booklet encourages quick action in reporting, saying, “All of these reporting options are affected by time limits, so you should consider reporting misconduct at the earliest appropropriate (sic) opportunity.”

It offers two types of reporting:

Administrative Action — File a complaint with the therapist’s licensing board. (See “More About Administrative Action, page 13.)

Professional Association Action — File a complaint with the ethics committee of the therapist’s professional association. (See “More About Professional Association Action,” page 15.)

For legal actions against a therapist, two options are listed:

Civil Action — File a civil lawsuit. (See “More About Civil Action,” page 18.)

Criminal Action — File a complaint with local law enforcement. (See “More About Criminal Action, page 19.)

Pointing out the authority and responsibility of the professional boards to which a patient can make a complaint, the booklet states,

The purpose of these licensing boards is to protect the health, safety and welfare of consumers. Licensing boards have the power to discipline therapists by using the administrative law process. Depending on the violation, the board may revoke or suspend a license, and/or place a license on probation with terms and conditions the licensed professional must follow. When a license is revoked, the therapist cannot legally practice. In many cases, the California Business and Professions Code requires revocation of a therapist’s license or registration whenever sexual misconduct is admitted or proven.

Again stressing the urgency of reporting, the booklet offers specifics on the time limits pertaining to reporting:

It is best to report any case of therapist-patient sexual exploitation as soon as possible, since delays may restrict the disciplinary options available to the board. Time limits require a licensing board to initiate disciplinary action by filing an “accusation” against a licensed professional accused of sexual misconduct:

— within three years from the date the board discovered the
alleged sexual misconduct, or

— within 10 years from the date the alleged sexual misconduct
occurred.

That means an accusation of sexual misconduct against a therapist
can’t be filed more than 10 years after the alleged incident. For
complaints involving allegations other than sexual misconduct, the
licensing board must file an accusation within seven years from the
date of the alleged offense

The material describes the complaint process, and includes the steps typically taken by the board. It indicates what information should be provided, and that it can be provided online. It says that the board reviews the information and investigates the complaint in order to determine whether to initiate a disciplinary action.

Most cases, it states, are settled by a stipulated agreement, in which the therapist, “admits to the violation(s) and accepts the disciplinary action…” In this case the patient does not need to testify, and no hearing is held. If the therapist does not admit to any violations, there is a hearing presided over by an administrative law judge, and the patient must testify. Once the judge makes his or her decision, the board may choose to make its own decision. The process may take up to two years.

The booklet also offers the option of complaining to professional associations. It states that these associations may not prevent a therapist from practicing, but they may investigate and take an action such as removing the psychotherapist from their roles, resulting in other professionals being aware of the action. These associations have their own deadlines, and many will not consider a complaint more than a year old, according to the booklet.

The booklet warns patients of ways they may lose privacy, saying that the complaint hearings are open to the public, and that a lawsuit may result in media attention. It also points out that in lawsuits, “patients don’t always win.”

Special Issues

Collecting Fees or being Sued

If the social worker finds it necessary to sue a client in order to collect fees, the social worker is allowed to disclose the information necessary to conduct the suit. (Bernstein, B. E., & Hartsell, Jr., 2004, p. 22) This information typically includes dates and charges for sessions and the fact that the services rendered were psychotherapy or other mental health services. The social worker would not disclose any diagnostic or other clinical information.

The social worker is cautioned that financial issues between social worker and client greatly increase the odds of a complaint to the board, or of a law suit. (Yourell, 2007; Bernstein, & Hartsell, Jr., 2004, p. 22)

If a patient sues a social worker regarding treatment, the social worker is allowed to use clinical records as evidence in self-defense. (Ibid, p. 5)

Setting Fees

The subject of fees can become confusing, as historical opinions, ethical concerns, legal issues, and market forces may all weigh on the social worker’s mind. From a business point of view, it could be said that most social workers charge what the market will bear.

Social workers may be tempted to alter their rates based on the ability to pay. It is important to ensure that any such policy is sustainable or modified as needed, and accompanied by a realistic image to potential patients about the nature of the social worker’s practice by, for example, not implying that the practice is a social program when it is not.

In order to avoid accusations of insurance fraud, and in order to be in compliance with insurance contracts, it is important not to raise your fee whenever the payer is an insurance company. The social worker is advised, when adjusting fees, to adjust down from a standard fee, not up. (Leslie, 2006)

The overhead of verifying patient income claims is unlikely to be appropriate for a private practice, though it is a policy for some social agencies that offer sliding scales.

Contacting Clients via Mail, Phone, Email, and Other Methods

Care must be taken to protect client confidentiality from potential breaches that may occur when using voicemail and other methods to contact the client. It is wise to review with a new client what methods of contacting the client are safe and acceptable. For example, a client who fears domestic violence would not want the social worker’s phone number to show on caller ID at home.

Social workers attach boilerplate text to email and faxes that warn an unintended recipient to ignore the message.

Couples, Families, and Groups

With couples, families and groups, the social worker has more than one client at a time, and some social workers think of the collective as their client. For example, the welfare of the family as a whole is elevated to the status of the welfare of the client. In any case, the social worker holds privilege for each individual. At times, this responsibility can require judgement on the part of the social worker when there is conflict between the desires and rights of the individuals involved. It is important to discuss confidentiality issues at the outset of treatment.

Couples

The social worker must preserve the confidentiality of both members of a couple. This can be difficult at times. When starting treatment with a couple, it is wise to broach the subject of secrets and gain agreement on a means of handling this issue. (Leslie, 2006b) Generally, the couple should agree that the social worker will not be expected to hold secrets. (Leslie, 2006c)

However, since each individual has the right to privacy, there are cases in which a member of a couple may disclose information to the social worker that that client is unwilling to reveal to the other member of the couple. If the information would have an impact on the other member of the couple and is inappropriate to conceal, the social worker can no longer work with the clients as a couple. (Ibid) Typical secrets include infidelity or the client not wanting the partner to know that he or she has disclosed abuse on the part of the partner. Such disclosures can take place during a telephone call or an individual session.

When this occurs, the social worker typically notifies the partner who did not confide that therapy must be transferred to another provider. The social worker may continue to work with the partner who confided the secret, or may refer both partners to another provider.

Any client can terminate any agreement to release information at any time, and can do so verbally or in writing. This is true even if the release of information does not exist as a signed document, and even if the couple agreed on how information would be shared. The social worker immediately must begin complying with the new directive to protect confidentiality. (Ibid)

If the social worker wishes to refer a partner to another social worker, but the partner is unstable; the social worker must consider the safety of the client in determining whether or how to proceed with a transfer of care. Legal advice should be sought when there is any uncertainty.

The circumstance may arise in which it is necessary to release information about one member of the couple where the other member will not or has not authorized release of information. In this case, information must exclude the identity and implications regarding the identity of the partner, unless there is an exception to the partner’s confidentiality as might occur in a case of child abuse. (Ibid)

However, if a member of the couple requests possession of a copy of the record, this is another matter. The social worker would only release this when both members authorize the release (Ibid), and then only when both members can tolerate reading its contents, as with record releases to individual clients. It would not be realistic to expect a social worker to take the time or to succeed at redacting enough information to preserve the confidentiality of one member of a couple, where the record is of couples therapy. (Leslie, 2006c)

When initiating therapy, it may help to prevent misunderstandings by introducing the couple to the idea that the couple is the client, in the sense that the couple is primarily working with the social worker on their relationship. (Yourell, 2007)

Families

Most of the relevant confidentiality issues pertaining to families are discussed in the sections on minors, couples, and groups.

When a family member poses a risk to other family members, the social worker must disclose to the authorities the make up of the family. This is necessary in order for the authorities to assess risk to the family members and to intervene as safely as possible. (Leslie, 2006c) For example, an abusive sibling may pose a risk to several siblings, even if only one is known to have been abused.

Groups

Members of therapy groups do not have the statutory obligation to preserve confidentiality that social workers do. However, the members should be expected to preserve this confidentiality, and this is to be stressed to group members from the beginning. (Leslie, 2005) This has the clinical value of promoting disclosure within the group, and this value can be explained to the group members.

Group members should also understand the limits of confidentiality, and the additional risk that a member could disclose their personal information. Although this may affect the participation of some group members, it is a matter of informed consent that the members understand the risks and benefits of group therapy, including those related to confidentiality.

Minors

There are many aspects to the issues of confidentiality and consent to treatment when children receive mental health care, and the legal issues are not always clear-cut. Minors have a great deal of protection for privacy, as discussed below. At the same time, the law requires social workers to involve parents in minors mental health care, so long as it is appropriate. (Family Code § 6924, subd. (d))

The social worker must exercise clinical judgment in weighing the obligation to involve the family against issues of privacy. (Gudeman, 2006) Generally, clinical judgment and the law are not at odds regarding the confidentiality of minors’ medical records.

There is additional information on handling confidentiality with minors in the relevant law, and in the course on confidentiality. (In re Mark, 2001; Eby, 2006)

Privilege and Common Practices

In many treatment situations, the social worker gets parental permission to release information for clinically sound purposes. When the child is being seen individually, the social worker should discuss the nature and limits of confidentiality with the child and parents. Generally, the child will have a good deal of privacy, but the social worker will disclose to the parents the child’s overall progress in therapy and specific concerns about his or her welfare, such as dangerous contacts, sex, and drugs.

The social worker can gain authorization to treat a child from just one of the parents in an intact marriage if the parent indicates that they agree about the child receiving therapy.

Certain legal issues and controversies can pose risks and be difficult to judge. These have to do with custody, disagreements between parents, disagreements between parent and child, and danger to the child’s welfare caused by parental involvement. It is especially where there is acrimony that the social worker must beware, so that he or she and the child are not used as weapons by a bitter parent. Even seasoned social workers should get legal counsel if there is any uncertainty or controversy regarding confidentiality, custody, or the child’s legal ability to give consent to treatment.

Withdrawal of Consent by the Minor

The law states that social workers may not share records regarding mental health care of a minor with the minor’s parents or legal guardians without the minor’s consent. This applies when the minor has consented to the mental health care and there are no exceptions. (Civil Code §§ 56.10, subd. (a), 56.11, subd. (c); Health & Saf. Code §§ 123110, subd. (a), 123115, subd. (a)(1))

In addition to the general laws on confidentiality for minors, California law refers to specific services and situations in which, barring an exception to confidentiality, the social worker may not inform a parent or guardian without a minor’s permission. These include reportable infectious, contagious, or communicable diseases, sexually transmitted diseases, prevention or treatment of a minor’s pregnancy, HIV/AIDS services and status, and rape treatment, so long as the minor is not under twelve and the provider does not reasonably suspect the parent or guardian to have committed the rape. This law stipulates that the provider document attempts to contact the parents or guardians regarding the rape. (Gudeman, 2006)

A provider cannot require a minor to waive confidentiality as a condition of receiving treatment. Such an act would be coercive, especially since the conditions under which confidentiality is excepted are specified in the law. (Civil Code § 56.37)

Pregnancy of a Minor

The pregnancy of a minor client, coupled with an invocation of privacy, is an example situation that may involve several laws and clinical considerations. By itself, pregnancy is not necessarily a sign of abuse even though it is a minor who is pregnant. (Leslie, 2005b) It depends on the ages of the client and the individual or individuals with whom she had sex. It does not necessarily show that there is threat of harm to self or others. It does not necessarily create liability for the social worker if he or she honors client confidentiality, even though there are physical and emotional risks involved in decisions pertaining to the pregnancy, such as that of abortion. (Ibid) Another question is whether the parents would play a constructive role if informed. This can be a good example of a situation with multiple laws and clinical variables in play, and where it may be important to get legal advice.

Custody

Often, only one parent will have custody. This is called sole legal custody. The sole legal custodian has the authority to make decisions regarding the welfare of the child. Generally the social worker must at least gain consent of the custodial parent or parents for treatment and release of information for children.

When the social worker does not have access to both parents, the social worker may wish to review the court order to make sure that treatment and any releases of information will not intrude upon the rights of the other parent. (Leslie, 2007)

If the court order is vague and the social worker is not on solid ground, it is important to prevent disruption of therapy that can occur in a legal battle, and to reduce vulnerability on the part of the social worker to a complaint. In such a case, the social worker may insist that both parents agree before treatment will commence. In the absence of that agreement, the social worker may decide to refuse to treat until the parent gets a court order specifically addressing the issue. It may be adequate to ask that the attorney for the parent requesting treatment of the child provide a letter indicating that the parent is compliant with existing court orders. (Ibid)

It is important that the social worker not be manipulated or intimidated by a parent who may have misunderstandings about these issues and who may demand concessions from the social worker that are not in the best interest of the child and are not legally defensible. The social worker must realize that a litigious party may be quick to complain about or sue a social worker who makes an error such as treating a child without the custodial parent’s consent.

Even when there has been agreement between parents regarding the treatment of their child and treatment has begun, one parent may later communicate to the social worker that he or she is withdrawing or revoking their authorization to treat the child. This may occur despite the fact that the other parent and the child want treatment to continue, and that it is in the best interest of the child.

In this situation, the welfare of the child generally dictates that the social worker take the same position regarding termination of treatment as he or she did regarding initiation of treatment. That is, that both parents must consent to the termination of treatment. In other words, the social worker will not stop the child’s treatment on the sole basis that only one of the parents has demanded this. This rationale is strongest when the court order specifies that both parents must consent to treatment. (Leslie, 2005b)

Early Age of Consent

There are circumstances in which a minor may consent to outpatient mental health treatment without parental permission as early as twelve years of age, and without being emancipated. This is so when the minor would present a danger of serious physical or mental harm to self or others without the mental health treatment or counseling, or if the minor is the alleged victim of incest or child abuse. However, the minor must be assessed as being sufficiently mature to participate intelligently in outpatient treatment. (Family Code § 6924, subd. (b)(1))

Death of patient

The right to confidentiality continues after death, but there are limits to confidentiality in this case as well. The social worker should report to the authorities any suspicion that the death was the result of a crime. The social worker should cooperate with information requests by the coroner. (California Civil Code 56.10)

After death, the individual’s legal representative holds privilege. (Evidence Code § 1013, subd. (c))

Insurance

Patients are often naïve regarding the nature and responsibilities associated with their insurance policies. In the interest of informed consent, and avoiding trouble down the road, the social worker should help the patient understand what information will be provided to their insurance provider, and the patient’s ultimate responsibility for payment. (Ibid) Typically, this information includes a diagnosis and dates and types of treatment. However, managed care companies that perform functions such as provider network and utilization management for the insurer may require additional clinical information in order to authorize additional care. (Leslie, 2005c)

HIV/AIDS

A client with HIV/AIDS does not typically pose a serious and immanent threat of violence to an identified individual in such a manner that the social worker would be mandated to report it as a threat. (Ibid) California law specifically states that HIV/AIDS status is confidential medical information. (Ibid)

An important point here is that a threat to the confidentiality of individuals positive for HIV, while it may protect some sexual partners, it would also pose a threat to public health by discouraging people from disclosing their status and receiving treatment. (Lin, & Liang, 2005)

Telemedicine

According to the BBS, marriage and family therapists are required to fulfill the same responsibilities regarding confidentiality when practicing via telemedicine as they are in any other setting. (BBS, 2007a, b)

Providing treatment through means such as the Internet or telephone is referred to as telemedicine, although California law indicates that a telephone conversation does not constitute telemedicine. (Bus. & Prof Code § 2290.5 subs. (a)(1)) It also states that when telemedicine does not include the patient, the section quoted from here (which is primarily concerned with informed consent) does not apply, except for the clause that all confidentiality rules apply (Bus. & Prof Code § 2290.5 subs. (h)), and except in an emergency where the patient is unable to provide informed consent and the patient’s representative cannot be available in a timely manner. (Bus. & Prof. Code § 2290.5 subs. (i))

The Business and Professions Code defines telemedicine as:

For the purposes of this section, "telemedicine" means the practice of health care delivery, diagnosis, consultation, treatment, transfer of medical data, and education using interactive audio, video, or data communications. Neither a telephone conversation nor an electronic mail message between a health care practitioner and patient constitutes "telemedicine" for purposes of this section. (Bus. & Prof Code § 2290.5 subs. (a)(1))

The Business and Professions Code states:

…prior to the delivery of health care via telemedicine, the health care practitioner who has ultimate authority over the care or primary diagnosis of the patient shall obtain verbal and written informed consent from the patient or the patient's legal representative. (Bus. & Prof Code § 2290.5 subs. (c))

The business and Professions Code provide very specific instructions as to how to manage informed consent, and states that the following are to be included in the information presented to the client:

(1) The patient or the patient's legal representative retains the option to withhold or withdraw consent at any time without affecting the right to future care or treatment nor risking the loss or withdrawal of any program benefits to which the patient or the patient's legal representative would otherwise be entitled.

(2) A description of the potential risks, consequences, and benefits of telemedicine.

(3) All existing confidentiality protections apply.

(4) All existing laws regarding patient access to medical information and copies of medical records apply.

(5) Dissemination of any patient identifiable images or information from the telemedicine interaction to researchers or other entities shall not occur without the consent of the patient. (ibid)

The code also indicates how the consent is to be handled:

A patient or the patient's legal representative shall sign a written statement prior to the delivery of health care via telemedicine, indicating that the patient or the patient's legal representative understands the written information provided pursuant to subdivision (a), and that this information has been discussed with the health care practitioner, or his or her designee.

The written consent statement signed by the patient or the patient's legal representative shall become part of the patient's medical record. (Bus. & Prof Code § 2290.5 subs. (d)(e))

Closing Thoughts: Principles of Privacy

In order to comply with the responsibilities of confidentiality, it is helpful to understand it as a set of principles. This will make it easier to identify situations in which the therapist must exercise special care in protecting client privacy. While the therapist should make every effort to commit key laws and standards to memory, protocol and habit, the therapist must most importantly understand the principles upon which privacy protections are based. With this foundation, the therapist will know when to turn to resources such as this text, specific laws, and professional legal advice.
While the course is fresh in your mind, it would be good to briefly think of some of the most important principles.

Privacy is a fundamental legal right, although it does not appear specifically in the Constitution of the United States. It has been inferred from the Constitution by the Supreme Court, and has been a developing doctrine since 1962. (Alexander, & Spurgeon, 1978)
The right to privacy is specifically assured in Article I of the California Constitution and is expressed in numerous laws and court judgments. It is expressed in a number of amendments to the U.S. Constitution, particularly the fourth amendment, pertaining to search and seizure, the fifth amendment which protects due process and freedom from self-incrimination, and the ninth amendment, which affirms the existence and promotes the protection of rights not specified in the Constitution. The laws that give therapists a responsibility to protect the privacy of clients are an expression of the fundamental right to privacy.

The devil is in the details, however, and the need to breach confidentiality results from the controversial processes of Constitutional law interpretation, legislation, the promulgation and enforcement of regulations, case law, and the everyday actions of psychotherapists in acting on their understanding of privacy. We have seen that profound changes in technology have created stress in society that have taxed the capacity of our legislatures and courts to respond effectively.

The rights of individuals and the needs of society must be balanced, and the rights of individuals, when in conflict, must be balanced. We have seen how these balancing acts play out in determining when to breach confidentiality in order to protect children from abuse, or in the responsibility to assert privilege when compelled by subpoena to testify.

Clinical records, administrative processes, storage and technology all pose risks to confidentiality. These impersonal factors require procedures and physical security measures to protect privacy. Human curiosity and even greed can pose threats to client privacy as well, and they must be accounted for in establishing privacy measures. For example, discretion must be exercised in determining which staff members may have access to which records. Providing only the minimum information necessary for a legitimate task is an example codified in HIPAA.

Patients have a right to informed consent, that is, to know the risks, responsibilities, and potential rewards pertaining to receiving clinical services. Confidentiality issues are a key aspect of informed consent.

Patients have a right to receive services that are in their best interest. Issues regarding confidentiality or any other legal concept should never cloud the therapist’s judgment in supporting the best interests of the client. It is hoped that this training provides the therapist with useful guidelines that will make this task easier, more meaningful, and supportive of the therapist’s well being.

Record-Keeping and Documentation

Maximizing Client Benefit, Minimizing Legal Risk

The American Psychological Association (APA) has issued model record-keeping guidelines. (American Psychological Association, 2007) As with all APA model guidelines, the guidelines make it clear that " They are not definitive and they are not intended to take precedence over the judgment of psychologists." (Ibid)

As the APA guidelines make clear, client benefit is the most important reason for maintaining and retaining accurate records. Complete and accurate records make it possible to track client treatment and progress (or lack thereof), develop and alter treatment plans appropriately, and ensuring that the client receives the best possible care. However, complete and accurate record keeping also benefits the therapist in a variety of ways. First and most obviously, they help the practitioner to ensure proper treatment and promote client welfare. Second, they help LCSW’s ensure compliance with state and professional regulatory requirements, as well as necessary insurance, benefits, and related documentation. Third, but by no means least, they help protect LCSW’s in the event of professional disciplinary charges, a malpractice suit or other civil litigation, or criminal charges.

Patient Records

NASW ethical guidelines cover fundamental expectations for record such as the above. These include, in 3.04 (a) “Social workers should take reasonable steps to ensure that documentation in records is accurate and reflects the services provided.”

APA guidelines go into more detail than those of the NASW, even indicating key elements that must be included. They state that, “Records include information such as the nature, delivery, progress, and results of psychological services, and related fees.” (APA, 2007)

The APA sets forth three kinds of information that the record may include:

Information in the client’s file:

· identifying data (e.g., name, client ID number);

· contact information (e.g., phone number, address, next of kin);

· fees and billing information;

· where appropriate, guardianship or conservatorship status;

· documentation of informed consent or assent for treatment (Ethics Code 3.10);

· documentation of waivers of confidentiality and authorization or consent for release of information (Ethics Code 4.05);

· documentation of any mandated disclosure of confidential information (e.g., report

· of child abuse, release secondary to a court order);

· presenting complaint, diagnosis, or basis for request for services;

· plan for services, updated as appropriate (e.g., treatment plan, supervision plan, intervention schedule, community interventions, consultation contracts).

· health and developmental history.

For each substantive contact with a client:

· date of service and duration of session;

· types of services (e.g., consultation, assessment, treatment, training);

· nature of professional intervention or contact (e.g., treatment modalities, referral, letters, e-mail, phone contacts);

· formal or informal assessment of client status;

The record may also include other specific information, depending upon circumstances:

· client responses or reactions to professional interventions;

· current risk factors in relation to dangerousness to self or others;

· other treatment modalities employed such as medication or biofeedback treatment;

· emergency interventions (e.g., specially scheduled sessions, hospitalizations);

· plans for future interventions;

· information describing the qualitative aspects of the professional/client interaction;

· prognosis;

· assessment or summary data (e.g., psychological testing, structured interviews, behavioral ratings, client behavior logs);

· consultations with or referrals to other professionals;

· case-related telephone, mail, and e-mail contacts;

· relevant cultural and sociopolitical factors. (Ibid)

Within these minimums, mental health providers have substantial discretion. For example, determining what information (i.e., the amount of detail) makes patient records on assessment or consultation is a matter of the individual provider's professional judgment. Creating detailed records not only helps the clinician’s recollection, but also fulfills the needs to transfer detailed information required for matters such as transfer of care and hospitalization. Also, there is the concern that the clinician may be vulnerable to malpractice issues inflamed by inadequate records.

Records Retention

Records retention refers to the physical security and availability of records, and the systems, policies and procedures in place to manage them.

Availability refers to the length of time that individual records must be retained and produced, when necessary. These standards vary by jurisdiction, and may even vary between federal, state, and local laws and the requirements of professional licensing bodies.

The physical and electronic security of records is an aspect of their maintenance. The laws regarding records require that they be maintained with adequate security. The laws include references to electronic records and their security needs. (Health & Saf. Code 123145 a) The tremendous capacity for storage and dissemination of personal information has created entirely new responsibilities for record maintenance and security. Breaches involving thousands of records have occurred as a result of theft and negligence affecting several government agencies and private businesses. This is among the factors that led to the Health Information Protection and Accountability Act (HIPAA).

Standards: California law requires that mental health records be maintained for a reasonable period of time, but does not specify the time frame. It may be advisable to use, as a minimum guideline, California law pertaining to medical records. It requires that these be maintained for at least seven years, and one year past the date that the client turns eighteen. (Health & Saf. Code § 123145, subd. (a)) Neither CAMFT or AAMFT specify record retention periods in their codes of ethics. (CAMFT Code of Ethical Standards, AAMFT Code of Ethics)

Electronic records: According to the California Health and Safety Code, electronic records must be maintained with adequate security and safety, “…by employing an offsite backup storage system, an image mechanism that is able to copy signature documents, and a mechanism to ensure that once a record is input, it is unalterable.” (Health & Saf. Code § 123149, subd. (b)) The provider must also, “…develop and implement policies and procedures to include safeguards for confidentiality and unauthorized access to electronically stored patient health records, authentication by electronic signature keys, and systems maintenance.” (Health & Saf. Code § 123149, subd. (g)) Once records are in electronic form, the original hard copies may be destroyed. (Health & Saf. Code § 23149.5, subd. (a))

The legislature’s intent is that, “…all medical information transmitted during the delivery of health care via telemedicine…become part of the patient's medical record maintained by the licensed health care provider.” (Health & Saf. Code § 123149.5, subd. (c))

Billing Records

Billing records are a confidential part of the treatment record. With the exception of issues of psychotherapy notes addressed in HIPAA, billing records should be held to the same high standard as other confidential materials. The previous section on “Maintaining Records” applies to billing records.

Billing records provide special ethics pitfalls: Failure to maintain them properly may subject a social worker not only to professional discipline, but also to criminal liability, which may include state and federal fines, administrative penalties, and a prison sentence.

Security, Functionality, and Accessibility

Security is a critical factor in the retention of records. This includes not only the physical security of the actual records, but also the security necessary to maintain confidentiality of the records' content. NASW ethical standards (Appendix B) address retention of records, including the matter of ensuring their security.

When designing record-keeping and retention systems, LCSW’s should keep certain objectives in mind. Records must be created in a timely fashion, to allow for inclusion of all necessary data while the information is still fresh in the LCSW's mind. They should be legible and comprehensible to those who must use them. This may mean typing patient notes to avoid misreading of illegible handwriting. They should also use terminology that is generally accepted in the profession, so that, in the event that another professional must use them (e.g., during a consult) when the LCSW is not present to translate, there are no misunderstandings. For LCSW’s who use their own private form of shorthand in making patient notes, this may require translating those notes into generally accepted professional terms when reducing them to permanent patient records.

Records must also be organized in a way that permits timely access and retrieval by those who must use them. Storage methods vary: Some practitioners continue to use ordinary paper charts and files; others use only electronic media, which may include a computer's hard drive, CD-ROMs, floppy disks, etc.; and some use a combination of paper and electronic media. Whichever method(s) an LCSW chooses, it should be stable, secure, protected from internal damage (such as computer viruses or file corruption) and external damage (such as fire, weather, and vandalism), and retrievable. Security measures are discussed below.

Transfer and the Professional Will

A variety of other events in an LCSW's professional and/or personal life can necessitate the need to transfer patient records to another practitioner. Such events often occur suddenly, with little or no warning, and may require immediate action. Examples may include (but are not limited to) the following:

· Family or personal pressures or obligations (e.g., the need to care for a gravely ill family member, etc.);

· A professional sabbatical;

· A temporary professional change, such as a visiting faculty appointment at an educational institution;

· An extended vacation;

· Relocation to a new city or state;

· inability/failure to obtain or renew license, certification or credentials for specialized area of practice, etc.;

· Professional discipline, including license suspension or revocation;

· Malpractice or other civil litigation or criminal proceedings;

· Closure of practice, either temporarily or permanently; or

· The need to terminate a client's treatment (e.g., because of personal conflicts, lack of progress, patient request, etc.).

As with requirements for the LCSW's own retention and storage of patient records, any plan for transfer of those records should take into account certain fundamental requirements. These plans should include a “professional will” that specifies how the records will be transferred in case of the LCSW’s death. (Holloway, 2003) Any method for transfer should ensure that records remain legible, readily accessible, and secure.

Practical Considerations

Today, perhaps the most significant practical consideration in maintaining confidentiality of patient records concerns the risks to electronic data.

Dangers to electronic data used to be limited largely to "hacking," or illegally breaking into another's computer to obtain information. Hackers often engage in such activities for "sport," rather than because they actually want access to the information they retrieve, but the breach to client confidentiality is no less real. With the rise in Internet usage, however, threats to electronic data have increased drastically, and take a variety of forms. Often, no "hacking" is required. Three of the most popular forms are known as "viruses," "worms," and "Trojan horses"; they refer to different types of files that are created specifically to gain access to another's computer files to obtain data, destroy data, or both. "Viruses" are so named because they "infect" computer files with code that alters or destroys them. "Worms" are named for their ability to "worm" their way into a computer's files and wreak havoc. "Trojan horses" operate exactly as the original Trojan horse: They appear to be innocuous files designed for ordinary use, but they contain hidden strings of malicious programming code; once the files are downloaded onto a computer, the code is released and disrupts or destroys the user's data.

Worse, such electronic threats can be downloaded onto a user's computer by way of a Web browser or, most frequently, and e-mail program. In addition, while most e-mail programs and Internet service providers offer "spam" and virus blockers and other security measures, they are unable to keep pace with the threats. As soon as programmers devise a way to neutralize the latest threat, a new one is created that circumvents the latest security measures. Moreover, many viruses, worms, and Trojan horses are designed to "mutate": They contain program code that permits them to adapt to and avoid new security measures.

LCSW’s, like many other professionals, frequently belong to Internet newsgroups and e-mail "listservs" that help them stay updated on practice developments and other important issues. For most LCSW’s, refusing to use electronic data is impractical; under certain circumstances, it may even put them at risk for charges of malpractice. It is thus crucial that therapists use basic electronic security measures, such as "spam" blockers, virus blockers, anti-virus programs, firewalls, password protection, data encryption, and off-site back-up to ensure, as far as it is possible to do so, that patient records remain safe, secure, and confidential. LCSW’s should consider using a separate computer for clinical records.

LCSW’s who protect patients' electronic records and other data as stringently as they would safeguard their own most sensitive information are more likely to be in compliance with state statutory and professional requirements, and are also more likely to meet the requisite standard of care that will help them avoid malpractice or other civil litigation.

Special Record-Keeping Issues

Collecting Fees or being Sued

If the social worker finds it necessary to sue a client in order to collect fees, the social worker is allowed to disclose the information necessary to conduct the suit. (Bernstein & Hartsell, Jr., 2004, p. 22) This information typically includes dates and charges for sessions and the fact that the services rendered were psychotherapy or other mental health services. The social worker would not disclose any diagnostic or other clinical information.

The social worker is cautioned that financial issues between social worker and client greatly increase the odds of a complaint to the board, or of a law suit. (Yourell, 2007; Bernstein & Hartsell, Jr., 2004, p. 22)

If a patient sues a social worker regarding treatment, the social worker is allowed to use clinical records as evidence in self-defense. (Ibid, p. 5)

Setting Fees

The subject of fees can become confusing, as historical opinions, ethical concerns, legal issues, and market forces may all weigh on the social worker’s mind. From a business point of view, it could be said that most social workers charge what the market will bear.

Social workers may be tempted to alter their rates based on the ability to pay. It is important to ensure that any such policy is sustainable or modified as needed, and accompanied by a realistic image to potential patients about the nature of the social worker’s practice by, for example, not implying that the practice is a social program when it is not.

In order to avoid accusations of insurance fraud, and in order to be in compliance with insurance contracts, it is important not to raise your fee whenever the payer is an insurance company. The social worker is advised, when adjusting fees, to adjust down from a standard fee, not up. (Leslie, 2006)

The overhead of verifying patient income claims is unlikely to be appropriate for a private practice, though it is a policy for some social agencies that offer sliding scales.

Contacting Clients via Mail, Phone, Email, and Other Methods

Care must be taken to protect client confidentiality from potential breaches that may occur when using voicemail and other methods to contact the client. It is wise to review with a new client what methods of contacting the client are safe and acceptable. For example, a client who fears domestic violence would not want the social worker’s phone number to show on caller ID at home.

Social workers attach boilerplate text to email and faxes that warn an unintended recipient to ignore the message.

Couples, Families, and Groups

With couples, families and groups, the social worker has more than one client at a time, and some social workers think of the collective as their client. For example, the welfare of the family as a whole is elevated to the status of the welfare of the client. In any case, the social worker holds privilege for each individual. At times, this responsibility can require judgement on the part of the social worker when there is conflict between the desires and rights of the individuals involved. It is important to discuss confidentiality issues at the outset of treatment.

Couples

The social worker must preserve the confidentiality of both members of a couple. This can be difficult at times. When starting treatment with a couple, it is wise to broach the subject of secrets and gain agreement on a means of handling this issue. (Leslie, 2006b) Generally, the couple should agree that the social worker will not be expected to hold secrets. (Leslie, 2006c)

However, since each individual has the right to privacy, there are cases in which a member of a couple may disclose information to the social worker that that client is unwilling to reveal to the other member of the couple. If the information would have an impact on the other member of the couple and is inappropriate to conceal, the social worker can no longer work with the clients as a couple. (Ibid) Typical secrets include infidelity or the client not wanting the partner to know that he or she has disclosed abuse on the part of the partner. Such disclosures can take place during a telephone call or an individual session.

When this occurs, the social worker typically notifies the partner who did not confide that therapy must be transferred to another provider. The social worker may continue to work with the partner who confided the secret, or may refer both partners to another provider.

Any client can terminate any agreement to release information at any time, and can do so verbally or in writing. This is true even if the release of information does not exist as a signed document, and even if the couple agreed on how information would be shared. The social worker immediately must begin complying with the new directive to protect confidentiality. (Ibid)

If the social worker wishes to refer a partner to another social worker, but the partner is unstable; the social worker must consider the safety of the client in determining whether or how to proceed with a transfer of care. Legal advice should be sought when there is any uncertainty.

The circumstance may arise in which it is necessary to release information about one member of the couple where the other member will not or has not authorized release of information. In this case, information must exclude the identity and implications regarding the identity of the partner, unless there is an exception to the partner’s confidentiality as might occur in a case of child abuse. (Ibid)

However, if a member of the couple requests possession of a copy of the record, this is another matter. The social worker would only release this when both members authorize the release (Ibid), and then only when both members can tolerate reading its contents, as with record releases to individual clients. It would not be realistic to expect a social worker to take the time or to succeed at redacting enough information to preserve the confidentiality of one member of a couple, where the record is of couples therapy. (Leslie, 2006c)

When initiating therapy, it may help to prevent misunderstandings by introducing the couple to the idea that the couple is the client, in the sense that the couple is primarily working with the social worker on their relationship. (Yourell, 2007)

Families

Most of the relevant confidentiality issues pertaining to families are discussed in the sections on minors, couples, and groups.

When a family member poses a risk to other family members, the social worker must disclose to the authorities the make up of the family. This is necessary in order for the authorities to assess risk to the family members and to intervene as safely as possible. (Leslie, 2006c) For example, an abusive sibling may pose a risk to several siblings, even if only one is known to have been abused.

Groups

Members of therapy groups do not have the statutory obligation to preserve confidentiality that social workers do. However, the members should be expected to preserve this confidentiality, and this is to be stressed to group members from the beginning. (Leslie, 2005) This has the clinical value of promoting disclosure within the group, and this value can be explained to the group members.

Group members should also understand the limits of confidentiality, and the additional risk that a member could disclose their personal information. Although this may affect the participation of some group members, it is a matter of informed consent that the members understand the risks and benefits of group therapy, including those related to confidentiality.

Minors

Introduction

There are many aspects to the issues of confidentiality and consent to treatment when children receive mental health care, and the legal issues are not always clear-cut. Minors have a great deal of protection for privacy, as discussed below.

The social worker must exercise clinical judgment in weighing the obligation to involve the family against issues of privacy. (Gudeman, 2006) Generally, clinical judgment and the law are not at odds regarding the confidentiality of minors’ medical records.

Privilege and Common Practices

In many treatment situations, the social worker gets parental permission to release information for clinically sound purposes. When the child is being seen individually, the social worker should discuss the nature and limits of confidentiality with the child and parents. Generally, the child will have a good deal of privacy, but the social worker will disclose to the parents the child’s overall progress in therapy and specific concerns about his or her welfare, such as dangerous contacts, sex, and drugs.

The social worker can gain authorization to treat a child from just one of the parents in an intact marriage if the parent indicates that they agree about the child receiving therapy.

Certain legal issues and controversies can pose risks and be difficult to judge. These have to do with custody, disagreements between parents, disagreements between parent and child, and danger to the child’s welfare caused by parental involvement. It is especially where there is acrimony that the social worker must beware, so that he or she and the child are not used as weapons by a bitter parent. Even seasoned social workers should get legal counsel if there is any uncertainty or controversy regarding confidentiality, custody, or the child’s legal ability to give consent to treatment.

Custody

Often, only one parent will have custody. This is called sole legal custody. The sole legal custodian has the authority to make decisions regarding the welfare of the child. Generally the social worker must at least gain consent of the custodial parent or parents for treatment and release of information for children.

When the social worker does not have access to both parents, the social worker may wish to review the court order to make sure that treatment and any releases of information will not intrude upon the rights of the other parent. (Leslie, 2007)

If the court order is vague and the social worker is not on solid ground, it is important to prevent disruption of therapy that can occur in a legal battle, and to reduce vulnerability on the part of the social worker to a complaint. In such a case, the social worker may insist that both parents agree before treatment will commence. In the absence of that agreement, the social worker may decide to refuse to treat until the parent gets a court order specifically addressing the issue. It may be adequate to ask that the attorney for the parent requesting treatment of the child provide a letter indicating that the parent is compliant with existing court orders. (Ibid)

It is important that the social worker not be manipulated or intimidated by a parent who may have misunderstandings about these issues and who may demand concessions from the social worker that are not in the best interest of the child and are not legally defensible. The social worker must realize that a litigious party may be quick to complain about or sue a social worker who makes an error such as treating a child without the custodial parent’s consent.

Even when there has been agreement between parents regarding the treatment of their child and treatment has begun, one parent may later communicate to the social worker that he or she is withdrawing or revoking their authorization to treat the child. This may occur despite the fact that the other parent and the child want treatment to continue, and that it is in the best interest of the child.

In this situation, the welfare of the child generally dictates that the social worker take the same position regarding termination of treatment as he or she did regarding initiation of treatment. That is, that both parents must consent to the termination of treatment. In other words, the social worker will not stop the child’s treatment on the sole basis that only one of the parents has demanded this. This rationale is strongest when the court order specifies that both parents must consent to treatment. (Leslie, 2005b)

Medical Issues and Sexual Assault Affecting Minors

The law addresses minors experiencing certain medical issues. Several laws and ethical issues may be involved simultaneously.

Not necessarily reasonable suspicion of abuse: The pregnancy or sexually transmitted disease of a minor client, coupled with an invocation of privacy, is an example situation that may involve several laws and clinical considerations. By itself, pregnancy or sexually transmitted disease is not necessarily a sign of abuse of a minor. (Pen. Code § 11166 subs. (a)(1); Leslie, 2005b) It depends on factors such as the ages of the client and the individual or individuals with whom she had sex. It does not necessarily show that there is threat of harm to self or others. It does not necessarily create liability for the social worker if he or she honors client confidentiality, even though there are physical and emotional risks involved in decisions pertaining to the pregnancy, such as that of abortion. (Ibid) Another question is whether the parents would play a constructive role if informed. As with all complicated situations, it may be important to get legal advice.

Consent from Age 12: Sexual assault, pregnancy, and sexually transmitted disease are conditions that create consent for a minor age 12 or older to consent to medical treatment. The minor's parents, if they do not consent, are not liable for payment. (Fam. Code §§ 6924-6927) Note that these laws do not impose the conditions that otherwise must be met for a minor to consent to mental health treatment, such as risk of harm to the minor and notification of parents unless it would be inappropriate. (ibid)

There is similar language regarding drug and alcohol treatment, but it only applies to, "services by a provider under a contract with the state or a county to provide alcohol or drug abuse counseling services..." (Fam. Code § 6929)

Insurance

Patients are often naïve regarding the nature and responsibilities associated with their insurance policies. In the interest of informed consent, and avoiding trouble down the road, the social worker should help the patient understand what information will be provided to their insurance provider, and the patient’s ultimate responsibility for payment. (Ibid) Typically, this information includes a diagnosis and dates and types of treatment. However, managed care companies that perform functions such as provider network and utilization management for the insurer may require additional clinical information in order to authorize additional care. (Leslie, 2005c)

HIV/AIDS

A client with HIV/AIDS does not typically pose a serious and immanent threat of violence to an identified individual in such a manner that the social worker would be mandated to report it as a threat. (Ibid)

An important point here is that a threat to the confidentiality of individuals positive for HIV, while it may protect some sexual partners, it would also pose a threat to public health by discouraging people from disclosing their status and receiving treatment. (Lin & Liang, 2005)

References are listed at the end of the the course: Law and Ethics for California Licensed Clinical Social Workers: Confidentiality

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