Ch 6 Confidentiality: Ethical and Legal Issues

FERPA (Family Educational Rights and Privacy Act)

- Any educational agency or institution that receives federal funding under any program administered by the Department of Education is subject to regulations protecting the privacy of student educational records. - U.S. Department of Education has stated its opinion that a school counselor's notes are generally part of the educational record. - Noncustodial parents have the same right to educational records as custodial parents in the absence of a court order to the contrary.

Things to consider when counseling a minor

- Client (the minor) has a right to confidentiality - Parent/guardian have a right to know what is learned in the counseling process. - How will release of information to parent/guardian going to impact the family/family relationships, the therapeutic relationship - Would disclosure help situation (benefits) or cause harm? - Age, maturity and educational level of the client - The relationship with parents or guardians - Applicable state laws - School policy, if applicable

Serious and Foreseeable Harm and Legal Requirements

- Client is suicidal and poses a danger to him/herself - When a client threatens harm to an identifiable individual or group - When a counselor suspects abuse or neglect of a child or other vulnerable individual (have evidence/documentation of why you are placing this report)

Confidentiality on HIV/AIDS

- Counselors have the option to maintain confidentiality - Counselors need to review state laws - Counselors should consult with peers - Assess the clients intent to inform the third parties about the disease

Subpoenas

- Official court document that requires the recipient to appear in court to be questioned as a witness, or to be deposed at another location, about facts underlying a lawsuit - May required the production of documents. - May come from attorneys representing your client or someone who is proceeding against your client, and you must respond carefully unless the subpoena is withdrawn or overruled by a judge - Counselors must be careful to protect their clients privileged communication

Four standards of HIPAA

- Privacy requirements: requires practitioners to take reasonable precautions in safeguarding patient information - Electronic transactions: aims at creating one national form of communication/language so that health care providers can communicate with one another electronically in this common language - Security requirements: minimum requirements are outlined in HIPAA that are designed to safeguard confidential information and prevent unauthorized access to health information of patients. - National identifier requirements: covered entities are able to communicate with one another efficiently

Privacy Issues with Telecommunication Devices

- Telephone, answering machine, voice mail, fax, cellular phone, and email - Use password protection, data encryption, and a firewall Include a confidentiality disclaimer notice in the email.

Safety Plans

.Verbal and written agreements between adolescents, caregivers, and therapists that are designed to reduce the likelihood of suicidal behavior. Has become a common intervention

Steps in responding to a subpoena

1. Consult an experienced health care attorney 2. Ascertain whether the client, after consulting his/her attorney, will provide you with written authorization to release information or to testify 3. If the client's attorney declines 4. In the preceding steps do not produce either your client's information authorization or a court order, send a written notice to the attorney who issued the subpoena or had the court clerk issue it. This notice should be customized to the particular facts 5. If you are subpoenaed to court or a deposition and the time is inconvenient o you will not be available, call the attorney who had it issued.

Jaffee Case (Jeffee vs Redmond) 1996

A court ruling holding that communications between licensed psychotherapists and their clients are privileged and therefore protected from forced disclosure in cases arising under federal law. The ruling extends therapist-client privilege to a wider range of licensed mental health professionals.

Exceptions to confidentiality and Privileged Communication include

Abuse/neglect of vulnerable population, sexual abuse, danger to self or others, client give a waiver of the privilege, court order, Insurance agency, supervision, client claims psychological damage in a lawsuit, consulting with experts or peers, a counselor working under supervision, when other mental health professionals request information and the client has given consent to share, when other professionals are involved in a treatment team and coordinate care of a client

Duty to protect

Applies to situations in which the mental health professional has a legal obligation to PROTECT an identified third party who is being threatened; in these cases the therapist generally has other options in addition to warning the person of harm.

Duty to warn

Applies to those circumstances where case law or statute requires the mental health professional to make a reasonable effort to CONTACT the identified victim of a client's serious threats of harm, or to notify law enforcement of the threat.

Texas counselor licensing law about duty to report

Counselor MAY report to a medical health professional or law enforcement if a client is believed to be preparing to hurt themselves or others

Custody Issues in Counseling

Counselors should NOT suggest which parent should receive custody, or offer suggestions regarding visitations. Instead, refer them to a independent mental health professional trained to evaluate parenting circumstances.

Counselors aspire to earn trust of clients

Creating an ongoing partnership Establish Maintain confidentiality

Duty to Warn/Duty to Protect

Exceptions to HIPPA determined in the 1974 case of Tarasoff v. Regents of the University of California that allows a therapist to not only warn someone of their patients intentions to harm them, but to also protect them by calling the authorities or taking whatever other steps necessary

covered entities

Healthcare providers, health plans, and healthcare clearinghouses that transmit claims electronically

Reportable Abuse

Involves the legal responsibility of a mental health professional to report suspected abuse or neglect of children, the elderly, and other dependent adults.

Mandatory Reporting

Is designed to encourage reporting of any suspected cases of child. elderly. or dependent adult abuse. Therapists are advised to err on the side of reporting in uncertain circumstances

HIPAA Privacy Rule

Law that regulates the use and disclosure of patients' protected health information (PHI). Applies to both paper and electronic

Eisel v. Board of Education (1991)

One of the first cases that addressed school counselor liability for student suicide. School personnel are advised to take every suicide threat seriously and to take every precaution to protect the student

Six-Step Ethical Practice Model for Protecting Confidentiality rights

Preparation: inform the client about the limits of confidentiality Tell Clients the truth: inform clients about the limits you intend to impose on confidentiality and obtain client's consent to accept these limits as a condition of entering into a professional relationship Obtain "truly informed consent " before disclosing voluntarily. Respond ethically to legal demands for information. Avoid preventable breaches of confidentiality: avoid making unethical exceptions to the confidentiality rule Talk about confidentiality: model ethical behavior and practice, invite a dialogue with clients about confidentiality as needed

Confidentiality Concerns Encountered by Counselors

Subpoenas, Counseling minors, Counseling public offenders and responding to requests from law enforcement, Confidentiality and technology, Group counseling, Couples and family counseling, Confidentiality of substance abuse records, Confidentiality after a client's death

Thapar v. Zezulka (1999)

Texas Supreme Court ruled that mental health workers do not have a duty to warn and protect their clients' known and intended victims

Privacy

as a matter of law, refers to the constitutional right of individuals to be left alone and to control their personal information. Right to be protected from visibility, access or intrusion by others. Clients' right to decide what they want to share.

The National Center on Elder Abuse (NCEA)

dedicated to educating the public about elder abuse, neglect, and exploitation and its tragic consequences

Wyke v. Polk County School Board (1997)

due to this case, the courts have addressed the need for training school employees in suicide prevention

The Hedlund Case, Heldund v. Supreme Court (1983)

extends the duty to warn in California to a foreseeable, identifiable person who might be near the intended victim when the threat is carried out and thus might also be in danger

Self-injury

intentionally causing injury to one's own body in an attempt to cope with overwhelming negative emotions. Doesn't always mean a client is suicidal

Privileged Communication

is a legal concept that generally bars the disclosure of confidential communication made to a psychotherapists from any judicial proceedings or court of law. Privileged usually belongs to the client. Legal Concept

Mandatory Reporting Laws

only apply to threats regarding future violence

The Bradley Case; Bradley Center v. Wessner (1982)

patient had been voluntarily admitted to a facility for psychiatric care. Patient was upset over wife's affair. Repeatedly threatened to kill wife and lover and admitted to therapist he was carrying a weapon in his car. He was given an unrestricted weekend pass to visit his children that lived with his wife and upon doing so killed his wife and her lover. Children filed a wrongful death suit and the Georgia Supreme Court ruled that the physician has a duty to take reasonable care to prevent a potentially dangerous patient from inflicting harm.

Types of abuse and neglect

physical, sexual, psychological or emotional, abandonment, financial or material exploitation, and neglect

In 1999 the members of the Texas Supreme Court unanimously ________ the Tarasoff duty

rejected

The Jablonski Case; Jablonski v. United States (1983)

underscores the duty to commit a dangerous individual.

Health Insurance Portability and Accountability Act (HIPAA) 1996

was passed by Congress to promote standardization and efficiency in the health care industry and to give patients more rights and control over their health information.

Confidentiality

which is rooted in a client's right to privacy, is at the core of effective therapy. The Counselor has an ethical duty to protect private client communication. Ethical Concept