Breaches of Privacy and Confidentiality in Psychotherapy

Course excerpt from Preventing Medical Errors in Behavioral Health

Among the most elemental foundations of psychotherapy is the expectation that what is communicated with one’s therapist will remain private. Confidentiality violations are a major source of practice error and highly likely to cause harm to patients. There are actually three separate concepts here: privacy, confidentiality, and privileged communication.

Privacy is suggested by the 4th Amendment of the Bill of Rights (December 15, 1791) of the Constitution of the United States. Basically, it gives people the “right to secure their houses, papers, and effects, against unreasonable searches and seizures…” (The United States Constitution). This is the most basic of the three terms (Cato Institute, 1776/2002). It is this historic and essential right that is at some risk of erosion under the problematic tenets of recent legislation like the “Patriot Act.”

Confidentiality agreementConfidentiality is an ethical term which denotes a contract between the client and the therapist in which the therapist promises to keep all utterances confidential, except those disclosures required by law. It is a principle given the most attention in almost all ethics codes and standard of care documents. According to Bernard and Goodyear (2008), this is so because confidentiality represents the essence of psychotherapy – a place where secrets and hidden fears can be disclosed. In more recent, increasingly litigious times, confidentiality has become less of a sacred trust and more of a “step-sibling to safety and judicial judgment.” Nonetheless, its role in the practice of psychotherapy has become no less central, only more complicated. Now the boundaries between the traditional therapeutic contract and considerations of legal liability must be mediated.

Privileged communication is a statutory term that refers to protecting clients from having their confidences publicly revealed during legal proceedings without their permission (Gladding et al., 2001, p. 20). Where such laws apply – and there are a large number of states where they are not legally supported – therapists are prevented from testifying in court about clients without their consent.

There are, of course, exceptions. The Florida Statutes Chapter 491 delineates the exceptions as follows:

491.0147 Confidentiality and privileged communications.–Any communication between any person licensed or certified under this chapter and her or his patient or client shall be confidential. This secrecy may be waived under the following conditions:

(1) When the person licensed or certified under this chapter is a party defendant to a civil, criminal, or disciplinary action arising from a complaint filed by the patient or client, in which case the waiver shall be limited to that action.

(2) When the patient or client agrees to the waiver, in writing, or, when more than one person in a family is receiving therapy, when each family member agrees to the waiver, in writing.

(3) When, in the clinical judgment of the person licensed or certified under this chapter, there is a clear and immediate probability of physical harm to the patient or client, to other individuals, or to society and the person licensed or certified under this chapter communicates the information only to the potential victim, appropriate family member, or law enforcement or other appropriate authorities. There shall be no liability on the part of, and no cause of action of any nature shall arise against, a person licensed or certified under this chapter for the disclosure of otherwise confidential communications under this subsection.

Three items are of note here. 1) Severe harm can come to clients whose therapists do not protect their privacy, ranging all the way from embarrassment to suicidal acts. 2) Harm is done to the profession when therapists demonstrate any disregard for the principles of confidentiality. 3) Confidentiality and its limits must be discussed in the first session of therapy in a competent informed consent process. Informed consent will be the topic of a detailed section later in this course.

Also relevant to a discussion of privacy and confidentiality are the areas of social media use, various forms of teletherapy, and the electronic storage and transmission of private health information. These topics will be discussed later in this course as well.

Confidentiality and HIPAA

Amidst all of the complexities of HIPAA legislation, one consideration will be briefly noted here: “routine” notes vs. “psychotherapy” notes. In short, routine notes are expected to be surrendered to outside parties and psychotherapy notes are expected to remain in the private records of the psychotherapist. Zuckerman (2009, p. 74) offers practical suggestions for sequestering sensitive therapy information that will provide more privacy protection in most cases from routine notes, which contains the nuts and bolts of a regular health care record.

Routine notes: If you mainly record the formalities of the therapy such as your interventions and the client’s responses you may feel comfortable in disclosing this to an insurer and so you have no need for records beyond the routine progress note.

Psychotherapy notes: If there is material which you believe you must record and yet you don’t want it shared with:

• The client because it is your working hypotheses and was of value only at one time. Remember, clients have no access to psychotherapy notes unless you give it
• Insurance companies or others who are not required to protect its confidentially as carefully as your profession requires you to
• Anyone else, because it is too sensitive and potentially damaging to the client or to others
• Other treaters, because they are not and will not be doing the kind of work you are with the client
• But you may want to share the information with professional students for training, or find value and meaning in these notes as you review them….

…the information should be kept in separate psychotherapy notes.

Preventing Medical Errors in Behavioral HealthPreventing Medical Errors in Behavioral Health is a 2-hour online continuing education (CE/CEU) course intended to increase clinicians’ awareness of the many types of errors that can occur within mental health practice, how such errors damage clients, and numerous ways they can be prevented. Its emphasis is on areas within mental health practice that carry the potential for “medical” errors. Examples include improper diagnosis; breaches of privacy and confidentiality; mandatory reporting requirements; managing dangerous clients; boundary violations and sexual misconduct; the informed consent process; and clinical and cultural competency. There are major new sections on psychotherapy in the digital age, including the use of social networking systems, the practice of teletherapy, and the challenges of maintaining and transmitting electronic records. *This course satisfies the medical errors requirement for license renewal of Florida mental health professionals. Course #21-03 | 2015 | 28 pages | 14 posttest questions

Professional Development Resources is approved by the American Psychological Association (APA) to sponsor continuing education for psychologists; the National Board of Certified Counselors (NBCC ACEP #5590); the Association of Social Work Boards (ASWB #1046, ACE Program); the California Board of Behavioral Sciences (#PCE1625); the Florida Boards of Clinical Social Work, Marriage & Family Therapy, and Mental Health Counseling (#BAP346) and Psychology & School Psychology (#50-1635); the Ohio Counselor, Social Worker & MFT Board (#RCST100501); the South Carolina Board of Professional Counselors & MFTs (#193); and the Texas Board of Examiners of Marriage & Family Therapists (#114) and State Board of Social Worker Examiners (#5678).