Confidentiality & Privileged Communication

1. Confidentiality & Privileged Communication

2. Confidentiality vs. Privileged communication • Confidentiality: Counselor’s ethical responsibility to the client • There are limits to confidentiallity • Privileged Communication: Legal protection for the client against disclosure of info in court • Privileged Communication is Confidential • Converse MAY not be true • Jaffee v. Redmond

3. Exceptions to confidentiality

4. Exceptions to Confidentiality: • Client’s request for release of information • Abuse of a minor. • Abuse, neglect or exploitation of an adult. • Credible Threat of imminent Harm to an Identifiable Person or Persons. • Threat to harm self. • Court order

5. Exceptions to Confidentiality • Duty to warn: Danger to Self • Duty to Warn: Danger to Others • Child/Elder Abuse Reporting • Tarasoff vs. California Regents • Morgan decision in Ohio • H.B. 71 • H.I.V. and other communicable diseases

6. Exceptions to Confidentiality • Duty to warn: Danger to Self • Duty to Warn: Danger to Others • Child/Elder Abuse Reporting • Tarasoff vs. California Regents • Morgan decision in Ohio • H.B.71 • H.I.V. and other communicable diseases

7. Exceptions to Confidentiality • Estates of Morgan, et. al. v. Fairfield Family Counseling Center • July 25, 1991, Matt Morgan shot and killed both of his parents, seriously wounded his sister. • Jan. 1990-Matt is removed from his parents’ home for wanting to fight with his father. • March – April 1990 After wandering homeless for months he is hospitalized in Philadelphia, PA, diagnosed as having Schizopheniform Disorder. • Returned to his parents home with prescribed medication • Did not present for follow up care at FFCC until July

8. Exceptions to Confidentiality: Morgan • July 1990-Matt is seen for 30 minutes by Dr. Brown, M.D. who noted no sx. of schizophrenia. • August –October 1990- Two 15 minute medication consults with Dr. Brown who is gradually reducing Matt’s medication as he fears “malingering” due to Matt having applied for SSDI. • August 1990 –July 1991 Matt continues to see his psychologist, Dr. Gussett for psychotherapy. M/M Morgan repeatedly express, in letters, their growing alarm regarding Matt’s potential for violence. • Evaluated by his counselor, and another therapist on several occasions. Denied involuntary hospitalization several times as symptoms were insufficient to justify this choice. • July 25, 1991 FFCC Social worker notes “It is apparent that Matt is losing weight and decompensating. FFCC is unable to assist since he refuses medication or psychiatric care”

9. Confidentiality: Duty to Warn-Morgan Decision • Matt’s sister as executor of their parents’ estate initiated a suit against the psychiatrist and FFCC • Alleging negligence as the “proximate cause” of the parents’ deaths and sister’s injury. • Trial court entered summary judgment in favor of the psychiatrist and FFCC • Ohio Supreme Court ruled that due to the “special relationship” between the psychotherapist and the patient “justifying the imposition of a duty…to protect against and/or control the patient’s violent propensities.”

10. 1999: HB 71 • Essentially returned liability for mental health practitioners to the previous level of “duty to warn” • We have a duty to warn an identifiable victim rather than a duty to protect the general populous

11. Duty to Warn • Hospitalize the client on an emergency basis. • Implement a course of tx. • second opinion risk assessment. • Communicate with law enforcement and each potential victim. • nature of the threat • identity of the client making the threat • identity of each potential victim. • Document consideration of each action • choosing the one least likely to violate the client’s legal rights. • Reasons for rejection of other available actions.

12. General Exceptions to Confidentiality: ACA recommendations • Consultation with administrative superiors, colleagues or others who share responsibility • With written consent of client • Death or disability, with written consent of representative, or beneficiary • Intent to commit a crime. • Client brings public charges against the licensee • Abuse/neglect of a minor/elderly or person with a disabling condition.

13. Exceptions to Privilege • Commission of a crime. • Urgent need for hospitalization • Client is using mental condition/status as issue in court case • Mitigation or other forensic evaluation • Mandated reporting

14. Confidentiality is Everywhere…or so it seems • Insurance forms • Case notes, client files, telephone messages • Disposal of charts, client data • Referral sources • Sound Proofing • Consultation • Informal discussions

15. Confidential…..but…

16. When is a ‘counselor’ not a ‘counselor’? • The Columbus Dispatch reported details gained from school records. • Information in the story was supplied to the Dispatch by a licensed counselor who worked for the school. • The licensed counselor was “concerned that no one was closely watching (the alleged perpetrator)”.

17. Penley v. Westbrook(Available on my website) • Peggy Penley and her husband sought marriage counseling with their pastor, Rev. C.L. “Buddy” Westbrook • They were seen individually and in a group. • In 2000 Penley told Westbrook that she was divorcing her husband. Westbrook recommended an attorney. • She resigned her church membership in accordance with the bylaws • Westbrook met with church elders and distributed to the congregation a letter about her decision. • He further noted her relationship with another man. • Church members were asked to “shun” her in accordance with church discipline.

18. Penley v. Westbrook(Available on my website) • Peggy Penley and her husband divorced in 2001 • she subsequently married the “other man.” • She sued Westbrook • Rev. Westbrook is a licensed counselor • The suit was initially ruled out by a lower court • the actions were in keeping with established church discipline. • Upon appeal, her right to sue was upheld.

19. Penley v. Westbrook(Available on my website) • Westbrook’s attorney proposes that his client has First amendment rights as a pastor that override “secular authority” (e.g. counselor laws). • Penley’s attorney holds that the case is about “negligence by a licensed counselor, not about the church.” • http://star-telegram.com May 2, 2006

20. Penley v. Westbrook(Available on my website) • June 29, 2007: Texas Supreme court dismisses Penley’s right to sue due to “lack of jurisdiction” Legalize for us legal geeks “Even if the pastor's dual roles as the parishioner's secular counselor and her pastor could be distinguished, he could not adhere to the standards of one without violating the requirements of the other. Therefore, the court held that its interference with the pastor's actions through imposition of tort liability would impinge on matters of church governance in violation of the First Amendment.” Note: yep, Buddy won-after four years and a trip to the state supreme court !

21. Penley v. WestbrookWhat do you think? • The issues: • In what role was Rev. Westbrook functioning when he engaged in counseling with M/M Penley? (pastor OR counselor) • Do secular authorities have the right to determine ‘internal church matters’ (as stated by Westbrook’s lawyer?) • How might you handle a similar situation with a counseling client? • Are you licensed? • What difference does that make in terms of liability, confidentiality?