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Confidentiality and Privileged Communication

Abstract and Keywords

Confidentiality of client communications is one of the ethical foundations of the social work profession and has become a legal obligation in most states. Many problems arise in the application of the principles of confidentiality and privilege to the professional services provided by social workers. This entry discusses the concepts of client confidentiality and privileged communications and outlines some of the applicable exceptions. While the general concept of confidentiality applies in many interactions between social workers and clients, the application of confidentiality and privilege laws are particularly key to the practice of clinical social workers in various practice settings.

Keywords: client confidentiality, Jaffee v. Redmond, privileged communication, HIPAA, privilege, psychotherapy

History of Confidentiality and Privilege

Social workers have traditionally incorporated adherence to the principles of client privacy and confidentiality into their work (National Association of Social Workers [NASW], 2006). The concept of commitment to client confidentiality was specifically outlined in the NASW Code of Ethics in 1979 (NASW, 1979). The provisions regarding privacy and confidentiality were greatly expanded in the 1996 Code Revisions (NASW, 1996). Where previously there were five subsections (NASW, 1994), there are now 18 (NASW, 1999). They address such issues as consent, exceptions to consent, group and family confidentiality, disclosures to third-party payers, disclosures in court proceedings, protection of electronic records and information, disposal of records, use of information in training, and confidentiality for deceased clients.

Although the issue of confidentiality often arises in the context of communications between the clinical social worker and the client, it applies to a number of other areas in which the social worker provides professional services. For example, under § 5.02(l) of the 1999 Code of Ethics, social workers who are engaged in evaluations or research should “ensure the anonymity or confidentiality of participants and of the data obtained from them.” Participants also must be advised of any limits on this confidentiality. The duty of the social worker to keep the confidences of a client is reinforced by the fact that a violation of the Code of Ethics can be based on the social worker's failure to do so. In addition, inappropriate disclosure of a client's confidences can be grounds for a malpractice suit for breach of confidentiality (Dawkins v. Richmond Community Hosp., 1993), a breach of contract (Martino v. Family Service Agency of Adams County, 1982), or a licensure board complaint (Petition of Sprague, 1989).

Scope of Confidentiality

Confidentiality is defined for social workers in several key places:

  • The NASW Code of Ethics

  • State licensing laws

  • State & federal alcohol and drug treatment laws

  • HIPAA regulations and other federal statutes

  • Case law.

Confidential communications must occur in a setting in which privacy is reasonably expected. This would generally be in the course of consultation, diagnosis, or treatment and would also include eligibility determinations, referral information, and chart reviews. From a professional ethical standpoint, all documentation and information related to or obtained from a client or patient should be viewed as confidential, whether or not a specific law or regulation defines it as a confidential medical record.

Obtaining the Client's Consent

In an ethical sense, a breach of confidentiality involves the release of confidential information about a client without that client's informed written or oral consent. In a legal sense, a breach of confidentiality involves the violation of a statutory, regulatory, or common law requirement to maintain the confidentiality of a client's information and records. There is no breach of confidentiality if the client has consented to the release of information within the specific circumstances. An appropriate release may be obtained at the commencement of treatment to permit records or reports to be sent to an insurance company, referring physicians, or other likely third-party requesters who have a professional need to know the information. The client should be made aware of the scope and intent of the release.

Many states have legislated or developed through case law certain exceptions to the rule of confidentiality. Whenever a situation requires the nonconsensual release of information about a client, the social worker should document the factual circumstances that require the release and the ethical and legal bases supporting a professional judgment compelling release of information or records without the client's consent.

HIPAA Privacy Regulations

A set of comprehensive federal regulations addressing the privacy of medical records (the “Privacy Rule”) was promulgated under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). Clinical social workers are subject to the Privacy Rule if they work in a setting where electronic billing or claims processing are used. The Privacy Rule only compels disclosure of confidential health information in two instances: to the client and to the U.S. Department of Health and Human Services (DHHS) for purposes of investigating alleged HIPAA violations. The Privacy Rule lists a large of number of permissible exceptions to confidentiality, but also provides that practitioners should follow state law if it is more protective of client privacy than HIPAA.

Social workers should be aware that heightened protection for psychotherapy notes under HIPAA is only available if the clinician's session notes are kept separate from the client's primary clinical record or case file. The heightened privacy protection for psychotherapy notes is twofold: (a) a separate authorization to release the notes is required (45 Code of Federal Regulations [CFR] §164.508(b)(3)), and (b) health plans and providers may not require clients to sign an authorization to release psychotherapy notes as a condition of providing treatment or coverage for treatment (45 CFR §164.508(b)(4)). The HIPAA Privacy Rule provides federal acknowledgement that mental health practitioners may keep a set of private psychotherapy notes, and provides additional protection from routine disclosure of such notes.

Duty to Control or Warn About a Dangerous Patient or Client

In the landmark case, Tarasoff v. The Regents of the University of California (1976), California was the first state to recognize the duty of a psychotherapist to release confidential client information in order to protect a third party from the foreseeable harm of the client. The California Supreme Court decided that the relationship between a psychotherapist and a client in the outpatient setting was “special” so as to trigger the duty to take protective action by releasing confidential information about the client to those who are capable of preventing the threatened harm. In the psychotherapy setting, controlling the client can include warning an outpatient's caregiver or family, involving the police, warning the potential victim, or involuntarily committing the client.

Four years after the Tarasoff decision, the California Supreme Court clarified the outside limits of the duty to warn or take preventive action. In Thompson v. County of Alameda (1980) the court concluded that a duty to warn the public at large of the presence of a potentially dangerous person was neither practical nor likely to be effective. Since then, an intermediate appellate court in California in the case, Ewing v. Goldstein (2004), expanded the duty to warn to include threats of harm by a client that are communicated to the therapist by a third party, such as a family member. The California legislature responded with statutory amendments intending to reverse the Ewing outcome; however, the courts have not interpreted these.

State laws today reflect a policy debate about what type of threat triggers a duty to release confidential client information and fall into roughly three groups. Some states (for example, Arizona, Delaware, and Washington) recognize a duty to warn when there is a general threat, a threat against the public at large, or a threat to a foreseeable class of victims (Connecticut). Other states (for example, Colorado, Kentucky, Louisiana, Massachusetts, Michigan, Nebraska, New Hampshire, and New Jersey) recognize the duty only against a specific threat to a readily identifiable victim. The remaining states have yet to address the issue or have not recognized any such duty at all (for example, Florida, North Dakota, Texas) or, although ostensibly recognizing such a duty, have yet to encounter a situation in which they are willing to impose it (for example, Alabama and Hawaii).

Child Abuse or Neglect

All states require a mental health professional to report known or suspected cases of child abuse or neglect. These reporting laws reflect the policy that protection of children supersedes the preservation of the privacy of individuals. Reporting child abuse and neglect is generally protected by immunity from suit under state law (for example, California Penal Code § 11172, 2007).

A majority of states have also enacted reporting laws designed to protect the interests of elderly, mentally or physically ill, or other classes of vulnerable or dependent adults (American Bar Association Commission on Law and Aging, 2006; Jogerst et al., 2003); for example, see Massachusetts General Laws Annotated, Ch. 112, § 135A (g) (2007). Social workers should be familiar with the reporting requirements mandated by the statutes in their own states. The NASW Code of Ethics recognizes a duty to report child abuse as an exception to the general duty of client confidentiality.

Preventing Harm to the Client

It is ethically understood, and confirmed by statute in a few states, that a therapist or social worker would ordinarily act to prevent harm to the client (Connecticut General Statutes, 2007; Massachusetts General Laws Annotated, 2007). The client's disclosure of suicidal intent, for example, may require contact with other professionals or the client's family or action for involuntary commitment. Such action must be reasonable, professionally appropriate, and taken in consideration of the client's particular circumstances.

If the client's situation requires involuntary commitment, it may be necessary to breach the client's confidentiality in the commitment process or during the commitment hearing (Massachusetts General Laws Annotated, 2007). This is generally allowed because release of information about a client protects the client or society from harm and is necessary because of the serious nature of the client's condition.

HIV and AIDS Reporting

An extensive body of jurisprudence has been developed around the many legal issues involving the acquired immune deficiency syndrome (AIDS). However, confidentiality requirements remain inconsistent among the states. Although all states now have some legislation relating to AIDS, many do not directly address the issue of whether it is mandatory or permissible to report a client's HIV (human immune deficiency virus) positive or AIDS status to sexual or needle-sharing partners (“contacts”). Cases involving high risk to others should be discussed with the client's treating physician or other appropriate medical personnel to determine who is in the best position to discuss the matter with the client and the person at risk. Consultation with the public health department is highly recommended before any disclosure is made, because there may be a protocol in place for such notifications.

Alcohol and Drug Rehabilitation Programs Receiving Federal Funds

42 CFR 2.1–2.67 contains specific rules outlining federal law that provide limited circumstances for the release of information from alcohol and drug treatment programs that receive federal funds. Such treatment programs should promulgate guidelines to protect the client's confidentiality that are based on current federal law and regulations. Generally, these records should only be disclosed based on client consent or a court order, with limited exceptions.

Privilege and the Release of a Client's Information in Legal Proceedings

Privileged communication is an important subcategory or characteristic of confidential communications. The privilege is the client's legal right to keep certain communications with the social worker private and not available as evidence in legal proceedings, including subpoenas of records, pretrial depositions or affidavits, and testimony at trial.

The privilege against disclosure of confidential communications in legal proceedings is a matter of public policy. It is grounded in the community value that the client should be confident that his or her innermost thoughts can be revealed in confidence, without being subject to public exposure (Jaffee v. Redmond, 1996), and is intended to protect the client from humiliation, embarrassment, or disgrace and to promote mental health treatment. As such, it is a right of the client, not of the social worker. Although the social worker is obligated to assert the client's privilege when records or testimony are demanded, if the client waives the privilege, the social worker must accede (In re Lifschutz, 1970).

There are a number of exceptional situations in which courts or legislatures have determined that privilege should not apply or that a client, by bringing a certain type of legal action, has waived his or her right to privilege. The most widely accepted group of exceptions is again in the area of protection of children. Most states make exceptions to privilege in matters of child custody, adoption, termination of parental rights, and the reporting of abuse and neglect. In weighing the importance of admitting confidential communications into evidence, courts will consider whether there are other sources for similar evidence that would make the confidential communications reported in the clinical setting duplicative.

A number of actions on the part of the client are considered to be effective waivers of the privilege. Some of these are generally accepted, but acceptance of others varies from state to state. A written waiver or release signed by a competent person in the context of a legal proceeding is generally accepted as an effective waiver. Independent disclosure by a client to a third party may or may not constitute a waiver, depending on the circumstances and state law. Most states consider that the client has waived the privilege when his or her mental health is made an issue in either a civil or criminal case. For example, in a civil case, if a patient is suing a third party for pain and suffering or emotional distress, or suing a social worker for malpractice, the client's records will not be held to be privileged because the content of the records is central to the claim being adjudicated (Caesar v. Mountanos, 1976).

The federal law of evidence was clarified by the U.S. Supreme Court's decision in Jaffee v. Redmond (1996) to confirm that clients' communications with licensed social workers in the context of psychotherapy are privileged communications under the federal rules of evidence. Therefore these communications are generally not subject to disclosure as evidence in the federal courts. The Supreme Court's majority opinion accorded much weight to the fact that the “psychotherapist privilege is rooted in the imperative need for confidence and trust” (Jaffee at p. 1928 citing Tramel v. U.S., 445 U.S. 40 [1980]). The Court contrasted the physician's need for medical facts with the psychotherapist's dependence on “an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories and fears” (Jaffee, p. 1928).

Table 1 Social Worker—Client Privilege Laws

State

Generic privilege statute for all mental health professionals

Specific privilege statute for social workers

Statute or case specifically excluding social workers

Victim counselor statute that May include social workers

Alabama

Ala. R. Evid. 503Aa

Alaska

Alaska Stat. § 08.95.900(a)(4); Alfred v. Alaska, 554 P.2d 411 (1976)

Arizona

Ariz. Rev.Stat. §32-3283

Arkansas

Ark.Code Ann. §§ 17-103-107

California

Cal. Evid. Code § 1014

Colorado

Colo. Rev. Stat. § 12-43-218

Connecticut

Conn. Gen. Stat. Ann. § 52-146q

Delaware

24 Del. Code § 3913

District of Columbia

D.C. Code § 14–307

Florida

Fla. Stat. Ann. § 90-503

Georgia

Ga.Code Ann. § 24-9-21

Hawaii

Haw. Rev. Stat. § 467E-15

Idaho

Idaho Code § 54-3213

Illinois

225 I.L.C.S. § 20/16

Indiana

Ind. Code Ann. § 25-23.6-6-1

Iowa

Iowa Code Ann. § 622.10

Kansas

Kan. Stat. Ann. § 65-6315

Kentucky

Ky. R. Evid., Rule 507

Louisiana

La. Code Evid. Ann. art. 510

Maine

32 Me. Rev. Stat. Ann. § 7005

Maryland

Md. Code, Cts. & Jud. Proc. § 9-121

Massachusetts

Mass. Gen. Law C112- § 135B

Michigan

Mich. Comp. Laws § 333.18513

Minnesota

Minn. Stat. Ann. § 595.02 (g)

Mississippi

Miss. Code. Ann. § 73-53-29

Missouri

Mo. Rev. Stats. § 337.636

Montana

Mont. Code Ann. §37-22-401

Nebraska

Neb. Rev. Stat. § 71-1, 335

Nevada

Nev. Rev. Stat. §§ 49.251-49.252

New Hampshire

N.H.Rev.Stat.Ann. § 330-A:19; Rules of Evid., Rule 503

New Jersey

N.J. Stat. Ann. § 45:15BB-13

New Mexico

N.M. Stat. Ann. § 61-31-24

New York

N.Y. Civ. Prac. L&R. § 4508

North Carolina

N.C. Gen. Stat. § 8-53.7

North Dakota

N.D. v. Copeland, 448 N.W.2d 611 (1989)

Ohio

Ohio Rev. Code Ann. § 2317.02(G)

Oklahoma

59 Okl. St. Ann. § 1261.6b

Oregon

Or. Rev. Stat. § 40.250 Rule 504-4

Pennsylvania

42 Pa. Cons. Stat. Ann. § 5945.1c

Rhode Island

R.I. Gen. Laws § 5-39.1-4

South Carolina

S.C. Code § 19-11-95d

South Dakota

S.D. Codified Laws § 36-26-30

Tennessee

Tenn. Code. Ann. §63-23-107

Texas

Tex. R. Civ. Evid., Rule 510

Utah

Utah Code Ann. § 58-60-114

Vermont

Vt. R. Evid., Rule 503

Virginia

Va. Code § 8.01-400.2

Washington

Wash. Rev. Code. Ann. § 18.19.180

West Virginia

W. Va. Code § 30-30-12

Wisconsin

Wis. Stat. Ann. § 905.04

Wyoming

Wyo. Stat. Ann. § 33-38-113

aRule 503A protects communication between clients who seek counseling services regarding sexual assault or family violence with a “victim counselor.” “A victim counselor means any employee or supervised volunteer of a victim counseling center or other agency, business, or organization that provides counseling to victims,” as long as the victim counselor is not associated with law enforcement or the prosecutor's office.

Thus, communication between a client and social worker may be protected if the social worker is offering counseling services.

bOne of the exceptions to the social worker–client privilege is the following: If a child under the age of 18 communicates or indicates to a social worker that he or she is a victim of a crime, the information acquired by social worker is not privileged. 59 Okl. St. Ann. § 1261.6(3). See Penninger v. Okla., 811 P.2d 609 (Okla. Crim. App. 1991).

cThis statute is defined as the “Sexual Assault Counselor Privilege,” which may encompass social workers who counsel victims of sexual assault at a “rape crisis center.” To qualify as a sexual assault counselor, an individual will have to be trained in this field for 40 hr under the supervision of a director of a rape crisis center. This privilege is deemed absolute and cannot be overturned even by the constitutional rights of a criminal defendant. See V.B.T. v. Family Services of Western Pennsylvania, 705 A.2d 1325 (Pa. Super. 1998), appeal granted 727 A.2d 132 (Pa. 1998), affirmed 728 A.2d 953 (Pa. 1999).

dThe title of this statute is “Communications with Mental Health Professionals Privileged,” and it includes a nonexclusive list of mental health practitioners who would be covered in this role. The law is presented in terms of the rights of the patient. It is an unusual and reasonable approach, which focuses on the holder of the privilege, rather than the professional degree or the mental health practitioner providing the service.

Statutes in 21 states and the District of Columbia grant privilege to communications between clients and mental health professionals. These “generic” privilege laws generally consider communications with psychiatrists, psychologists, social workers, and any other listed professionals to have equivalent importance and rights to privacy. In 26 states, privilege is granted to social workers as a profession, and separate statutes identify the privilege granted to other mental health professions. However, in Alaska and North Dakota courts or legislatures have explicitly denied any privilege to communications with social workers; in Alabama social workers who meet a narrow definition as “victim counselors” may have privileged client communications; and in Pennsylvania privilege may apply only to social workers who act as sexual assault victim counselors or who practice under the supervision of a psychologist. The specific state-by-state breakdown is shown in Table 1.

Future Directions

The social work profession must work toward increasing the universality and uniformity of state laws protecting client confidentiality and privilege. The different uses of terms of art and the lack of common agreement on meanings can create confusion in applying general rules to specific situations. With the Supreme Court's guidance in Jaffee v. Redmond and the protection to psychotherapy notes provided in HIPAA, state legislatures should recognize that the disparity in the protection of social worker–client communications in particular, and psychotherapist–patient privilege in general, is detrimental to the treatment process. Thus, all state laws should follow the federal sector in granting privileged status to communications between clients and their social worker psychotherapists.

For social workers to better serve the needs of clients and further the advancement of the profession, they must become aware of the requirements of the state laws pertaining to social workers. They and their allies must work toward consistent treatment of licensed mental health professionals based on the nature of the services provided.

References

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                                      Further Reading

                                      Barbre, E. S., 50 A.L.R. 3d 563 (2007; Originally published in 1973). Annotation, Communications to social worker as privileged. Eagan, MN: Thomson/West.Find this resource:

                                        Baytion, C. M. (1995). Toward uniform application of a federal psychotherapist–patient privilege [Note & Comment]. Washington Law Review, 70, 153–175.Find this resource:

                                          Cutter v. Brownbridge, 228 Cal. Rptr. 545 (Ct. App. 1986).Find this resource:

                                            Knapp, S. J., & VandeCreek, L. (1987). Privileged communications in the mental health professions. New York: Van Nostrand Reinhold.Find this resource:

                                              Knapp, S. J., VandeCreek, L., & Zirkel, P. A. (1987). Privileged communications for psychotherapists in Pennsylvania: A time for statutory reform. Temple Law Quarterly, 60, 267–292.Find this resource:

                                                McMunn v. Florida, 264 So. 2d 868 (Fla. App 1 Dist 1972).Find this resource:

                                                  National Association of Social Workers. (2005). NASW standards for clinical social work in social work practice. Washington, DC: Author. [Online]. Retrieved November 13, 2007, from http://www.socialworkers.org/practice/default.asp

                                                  Perlman, G. L. (1988). Mastering the law of privileged communication: A guide for social workers. Social Work, 33, 425–429.Find this resource:

                                                    Reamer, F. (2006). Ethical standards in social work, a review of the NASW Code of Ethics. Washington, DC: NASW Press.Find this resource:

                                                      Shroeder, L. O. (1995). The legal environment of social work. Washington, DC: NASW Press.Find this resource:

                                                        Social Security Act of 1935. ch. 351, 49 Stat. 620.Find this resource:

                                                          Statutes and cases, Help with legal research (undated). [Online]. Retrieved November 13, 2007, from http://www.nolo.com/statute/index.cfm