Lecture 4 confidentiality, disclosure and the law.1

Kevin Standish

LECTURE 4: CONFIDENTIALITY,

DISCLOSURE AND THE LAW

LEARNING OUTCOMES

1. Described the legal boundaries for maintaining confidentiality

2. Explore the issues of confidentiality and ethical conflicts

3. Identify when disclosure is appropriate and under what circumstances

1. CONFIDENTIALITY

1. The legal concept of confidentiality

2. The importance of confidentiality counselling

3. Confidentiality and ethics

1.THE LEGAL CONCEPT OF CONFIDENTIALITY

1. Based on the idea of equity or fairness in that a person who has received information in confidence should not take unfair advantage of it.

2. It is based on the legal concept of privilege

3. Counsellors can inadvertently or intentionally breach confidentiality

4. The law tends to take a benign and supportive view of the need for confidences as part of everyday working practice

2. THE IMPORTANCE OF CONFIDENTIALITY IN COUNSELLING

1. What makes confidentiality important in counselling?

2. It helps form the relationship based on trust

3. If creates safety and security for trust to develop

4. It protects the client’s autonomy in other use counselling

3. CONFIDENTIALITY AND ETHICS

1. What are the ethical principles upon which confidentiality is based?

2. The practice guidance in the ethical framework

3. The professional code of conduct

4. Agency and organisational practice guidance and codes of conduct

5. Principles of fidelity and keeping trust

2.PRIVILEGE AND CONFIDENTIALITY

1. The idea of privileged information2. Privilege and couple counselling3. The limits of medical confidentiality

1. THE IDEA OF PRIVILEGED INFORMATION

1. The idea of professional privileged communication between therapist and client being protected is not valid in the UK. This is an American concept.

2. Professional privilege: protection against compulsory disclosure of confidences, applies only to client lawyer communications for legal advice

3. marital negotiations for reconciliation or separation can be privileged from disclosure

PRIVILEGED INFORMATION/CONFIDENTIALITY/PRIVACY

2. PRIVILEGE AND COUPLE COUNSELLING

1. In matrimonial cases privilege exists where they are seeking advice for reconciliation or separation.

2. The privilege is held by the party is not the therapist.

3. The therapist cannot waiver this privilege to inform the court of the content of discussions without permission of both clients

3. THE LIMITS OF MEDICAL CONFIDENTIALITY

1. Doctors are required to maintain confidentiality but not exempt from the legal obligation to disclose information.

3. CONFIDENTIALITY AND PUBLIC INTEREST

1. Public interest in maintaining confidentiality

2. Public interest in requiring disclosure related to crime

public interest holds the confidence is to be maintained and protected by law

rather than be broken without good cause. Public interest is a conception of

what is for the public good.

THE CONCEPT OF “PUBLIC INTEREST”

1. PUBLIC INTEREST IN MAINTAINING CONFIDENTIALITY

1. Statutory protection of confidentiality

2. Confidentiality required by contract

2.. STATUTORY PROTECTION OF CONFIDENTIALITY

The legal basis will confidentiality is based on:

1. Common law: imposes a duty to maintain confidences where reasonable person or to know that information should be confidential

2. Statutory legislation: data protection act, human rights act.

3. Contracts between therapist and client

3. PUBLIC INTEREST IN REQUIRING DISCLOSURE RELATED TO CRIME

1. Terrorist offences2. Suspected child abuse3. Serious crime4. Multidisciplinary teams5. Duty to warn

3.1.TERRORIST OFFENCES

1. Terrorism act 2000 makes it a criminal offence if a person to fail to disclose any information that may prevent a person carrying out an act of terrorism or bringing a terrorist to justice in the UK.

2. There is a further offence of “tipping off” making disclosures to another person to prejudice a terrorist investigation

3.2. SUSPECTED CHILD ABUSE

1. A child is defined as a person under the age of 182. The children’s act 1989, 2004 places a statutory duty

on health, education and other services to co-operate with local authorities in child protection

3. There are no clear guidelines on the reporting of suspected abuse by individual therapists.

4. There may be requirements from their works were particular agency that would require them to report abuse

5. There is no legal obligation to report abuse6. What factors would you take into account in deciding

whether to report a child abuse or not?

BACP AND CHILD ABUSE

1. The former guidelines have now been revised, given that the legal context of child protection has been substantially changed with the introduction of the Children Act 2004, related legislation and statutory guidance.

2. The legal framework of child protection, set up by the Children Act 19894; following on from the Green Paper, Every Child Matters (HMG, 2003) the Children Act 2004 has replaced Area Child Protection Committees with statutory Local Safeguarding Children Boards

BACP AND CHILD ABUSE

1. DoH (2003: 5) emphasises the need forall practitioners working with children and families to

2. “…refer any concerns about child abuse or neglect to social services or the police”.

3. While acknowledging a potential duty of confidence towards the child, this may be over-ridden “(w)here there is a clear risk of significant harm to a child, or serious harm to adults,

the public interest test will almost certainly be satisfied” (HMG, 2006: 80).

BACP AND CHILD ABUSE

1. Schools and FE Colleges are bound by statutory duties under public law, such as the Education Act 2002, that requires them to report abuse.

2. They are also liable under private law, via legal action for negligence, for breach of their duty of care to individual pupils and students.

3. Counsellors working with young people may experience concerns about whether a failure to act on, or report, a perceived risk of harm to a young person may place the counsellor concerned at risk of being sued for breach of duty of care.

BACP AND CHILD ABUSE

1. Managers may also frame their assumed legal responsibilities for reporting child abuse, illegal drug use, suicidal ideation or substantial self-harm, in terms of the school or college being ‘in loco parentis’, thus carrying a substantial responsibility to avoid foreseeable harm to pupils and students.

2. However, the relevant standard for employers and staff exercising their duty of care under common

law is simply to take ‘reasonable care’.

BACP AND CHILD ABUSE

1. Counsellors need to be able to justify any action in reporting pupils or students to the authorities in ethical, therapeutic and professional terms, rather than taking action solely or largely to reduce the potential liability of the employer under private law.

2. Reporting risky behaviour by pupils and students, without client consent, conflicts with the young person’s right to confidentiality, and needs to be justified by clearly being in the public interest and in the interests of the client as well.

3. While guidance acknowledges a potential duty of confidence towards the child, this may be over-ridden “(w)here there is a clear risk of significant harm to a child, or serious harm to adults, the public interest test will almost certainly be satisfied” (HMG, 2006: 80).

BACP AND CHILD ABUSE

1. Under s.47 of the Children Act 1989, the local authority has a statutory duty to investigate situations where a child under 18 is suffering, or is likely to suffer ‘significant harm’, whether physical or psychological in nature.

2. There is no general legal duty on citizens(or on counsellors as such) to report suspected child abuse.

3. However, any person may report child abuse ‘in good faith’, in the public interest.

4. Reporting may also be done anonymously, to social services, or a specialist agency, such as the National Society for the Prevention of Cruelty to Children (NSPCC), which has a recognised statutory role and legal authority in this field.

3.3. SERIOUS CRIME

1. The prevention and detection of serious crime.

2. It is defensible to beach confidence in good faith to prevent crime.

3. There is no duty to report crime generally

4. There is no general obligation to answer police questions about client

5. However drug trafficking act 1994, proceeds of crime act 2002, money laundering regulations 2007, require the reporting of any crime related to these.

3.4. MULTIDISCIPLINARY SETTINGS

1. Statutory agencies work on the basis of team confidentiality mean a kind information may be shared the clinical team where necessary.

2. Agencies will expect members to pass on information concerning risk to the client or others or suspected child abuse.

3. It is also expected that the therapist recognised report signs of of a client’s deteriorating mental health

3.5. DUTY TO WARN THIRD PARTIES: TARASOFF CASE

1. The duty to warn does not extend to the UK.

2. This is a USA case extending the legal liability of therapists for client’s actions requiring a therapist to break confidentiality and warned another person where there was a serious threat of physical violence against an identified victim.

3. In the UK breaking confidentiality in public interest would be an acceptable defence and that it was done in good faith.

4. In the UK knowledge of the mental health act and referral processes is required to refer when people are at risk.

DUTY TO WARN: HOW TO JUDGE?

1. At what point would you act?

2. On what basis would you act?

3. What legal and ethical reasons would you use?

1. Core Reading:

2. Mitchels, B. & Bond, T (2008) Chapter 1 recording confidences – walking the tightrope.

3. Chapter 2 right to confidentiality – the clients perspective

4. chapter 3 confidentiality as a legal responsibility – obligations of the therapist

5. chapter 4 responding to dilemmas over confidentiality

6. chapter 5 confidentiality in supervision, training, research and audit.

7. Jenkins (2002) Chapter 1 - Confidentiality: A Case Study

8. Jenkins (2007) 5 - Confidentiality, Privilege and the Public Interest

KEY READINGS

Advanced reading

1. Tribe, R. & Morrissey, J (editors) (2005) chapter 6 client confidentiality and data protection by Peter Jenkins

2. chapter 10 referrals: clinical considerations and responsibilities by Rebecca Haworth and Tim Gallagher

3. Bond, T. (2010) chapter 10 confidentiality

4. Jenkins (2002) Chapter 10 - The Law of Confidentiality - A Solution or Part of the Problem?

READINGS