Confidentiality, Privacy, and Privileged Communication
While the terms privacy, confidentiality, and privileged communication may be interchangeable, in the area of social work and clinical psychology, they hold distinct meanings. Privacy refers to the right of an individual against unnecessary intrusion and to control disclosure of personal matters, often outlined in some form in federal and state constitutions. Confidentiality is essentially a promise by a mental health professional, driven by professional ethics, not to reveal identifiable information or content of conversations without the patient’s consent. Meanwhile, privileged communication is a legal term established in state law that presents the right which exempts patients from having confidential information revealed by themselves or mental health professionals they worked with within legal proceedings. This element may vary by state, extending or exempting criminal proceedings in the law (Metzner, n.d.).
Duty to warn and duty to protect are key legal terms that represent one of the few cases where confidentiality can be breached, both from an ethical perspective as directed by the APA, and in a legal sense as it may even be mandatory in some states. Duty to warn requires a counselor or any mental health professional to notify law enforcement/officials as well as any third party (if applicable) if the client poses an imminent threat to themselves, the therapist, or any third-party individuals. In these cases, confidentiality can be breached if the information is divulged to someone who is capable of reducing the threat (NCSL, n.d.).
Meanwhile, the duty to protect is an expansion with broader implications on the duty to warn principle. The counselor has the legal obligation to protect third parties or the client from danger and can utilize a variety of tools to do so, which go alongside the original warning. Duty to protect can include immediate involvement of law enforcement, mandatory hospitalization, and other methods of intervention. Generally, confidentiality can only be broken in cases of imminent danger such as described or where there is evidence of a vulnerable individual (child, elder, disabled) being abused or in cases of domestic violence (APA, 2019). Otherwise, information remains private unless directly indicated so by the client or there is a qualifying court order to do so.
Scenario
Lauren is a middle-aged woman that is seeking therapy for her depression and relationship issues with her husband. Once the paperwork is signed, and Lauren is notified of her rights as well as limits of confidentiality, and the session begins, everything that is said is meant to be confidential. Her therapist, Mark, cannot share what he hears with his co-workers at the office or his family at home, even if he never identifies with Lauren directly. Lauren is sharing details of her life and her marriage, and she has the right to privacy, that nobody will see or hear this information, and she has the right to decide on what and when to share. Confidentiality rights pertain to when Lauren shares that private information with her therapist Mark. In one of the first sessions, Lauren admits that she has cheated on her husband several times.
Now, say Lauren’s husband John finds out from his wife that she has been getting therapy, and decides to start divorce proceedings. His lawyers decided to call Mark to testify before the court, hoping that he will support John’s suspicions that Lauren has been cheating. Underprivileged communication, Mark is not allowed to reveal any information discussed during sessions. When Lauren finds out about this, she returns to Mark. She is visibly upset and discusses that she wishes that her husband “would be dead.” Here, Mark faces a dilemma to evaluate Lauren’s state. If it were a statement made emotionally but without true intent, it would be appropriate to continue therapy. However, if Lauren is demonstrating ill intent with detailed discussions of truly hurting herself or her husband, even if they are hypothetical, Mark has the duty to warn and duty to protect. Mark should notify law enforcement of the matter, and in cooperation, John will be notified of the direct threats against him. Mark may push for Lauren to be institutionalized to receive help. This would be a breach of confidentiality, but both legally and ethically required of Mark under the duty to warn clause.
References
APA. (2019). Protecting your privacy: Understanding confidentiality. Web.
Metzner, J. L. (n.d.). Confidentiality and privilege. Web.
NCSL. (n.d.). Mental health professionals’ duty to warn. Web.