There is one overarching confidentiality rule for psychotherapists and social workers.
It’s pretty simple. Here it is:
Be careful to protect the confidentiality of your clients.
Mental health practitioners need to be especially vigilant on privacy, because of the high stakes for their clients. All the ethical codes of the mental health professions, and abundant case law, emphasize this basic responsibility. Practitioners can face malpractice liability, trouble with their licensing board, and fines.
While this is a simple rule, it is unfortunately easy to violate. In one study, fully 62% of therapists reported that they had accidentally breached client confidentiality.
Let’s apply this basic confidentiality rule to some real-world situations.
- What if another health practitioner refers a client to you, and then calls to ask whether you had seen him or her? Can you answer this simple and probably well-intentioned question?
- Answer: not necessarily. You can provide information—and only that information—that is relevant for the other practitioner’s diagnosis or treatment of the client. But if that practitioner is no longer providing care to the client, or if the information would not be pertinent to their diagnosis or treatment, it is a violation of confidentiality for you to even say whether you had seen the client. Many clients wish to keep the fact they are in psychotherapy confidential.
- You have an especially troubling client, and you want to consult with an experienced colleague. Suppose your busy colleague suggests that you talk while walking to get coffee. While you know that random people will overhear scattered bits of your conversation, you find it difficult to imagine that anyone in this anonymous urban Starbucks would discern who you are talking about. Is this okay?
- Answer: a good way to think about this is to compare the risks and benefits. If someone does put two and two together, and figures out something highly sensitive about your client—i.e., that he or she is having an affair, has a substance abuse problem, or has a serious mental illness—the results could be catastrophic. Your client may get divorced, lose his or her job, face social ostracism, et cetera. Is this risk worth the convenience of combining coffee and consultation? What do you think a jury or a licensing board would conclude?
- Many ethical codes explicitly address this issue. For example, the National Association of Social Workers Code of Ethics provides: “Social workers should not discuss confidential information in public or semipublic areas such as hallways, waiting rooms, elevators, and restaurants.”
- You share an office suite and a receptionist with two other therapists. When clients arrive, they sit in a waiting area, where they see other clients. Does this constitute a breach of confidentiality?
- Answer: yes, in some sense. But it is generally considered unavoidable, and therefore not a violation of your legal and ethical duties. Also, clients learn about the physical setting of your office when they begin therapy. By continuing, they implicitly consent to the arrangement and its obvious risks of disclosure. The key is to keep transmissions of information to a minimum. Some therapists choose offices with one door to the waiting area, and another door for clients to exit discreetly.
- When it is time for a client to see one of the therapists, the receptionist says “okay John” or “you can go in now, Mr. Smith.” Does this violate “John Smith’s” confidentiality?
- Answer: ethical codes suggest that the practice be avoided if possible. Other clients may not know his face, and knowing his name multiplies the chances that he will be identified. Similarly, sign-in sheets should probably be avoided at a small mental health practice. Can the therapist simply open the door, make eye contact with the client, and say “hi, come on in”?
- The receptionist sits in an enclosure that is open to the waiting area. When he calls a client on the telephone to schedule an appointment, he begins by saying “Hello, is this John?” Does this violate John’s confidentiality?
- Answer: probably not, and in addition, this is likely unavoidable. The receptionist, after all, must confirm that he is speaking with the client, or the breach of confidentiality could be far worse. Even so, the receptionist must be vigilant about his own words, which are audible to anyone present. He should try to avoid saying, for example, “so you need an emergency session to discuss your compulsive gambling?”
- Are there any other “waiting room” problems?
- Answer: yes. Potential confidentiality breaches abound, and you must take all reasonable preventive steps. Keep computer screens tilted away from clients. Place printers, fax machines, and client-related paperwork in discreet locations. Lock your file cabinets. The bottom line: from the moment a client enters your office area to the moment he or she leaves, the client should not be able to see, hear, or access any information pertaining to any other clients.
- You are flying to a conference, and after boarding the airplane, you decide to knock out a couple of treatment plans on your laptop. Any problems with this?
- Answer: yes, unless you happen to be sitting alone in the very back row, with the screen tilted away from anyone who might read it. Your computer screen is visible to the people sitting behind you and probably next to you. It does not matter that it would be rude for them to read it. The point is that they might. By letting them, you have breached your duty of confidentiality.
- In your first session with a new client, you arrange to bill him at his home address. You send him a bill, with your name, licensure, and return address in the upper left corner of the envelope. Any problems?
- Answer: yes. The client may not want other people in the house to know that he is seeing a therapist, but anyone who sees the bill can figure that out. Unless the client tells you that he is not concerned about this kind of disclosure, omit your name and licensure information on the envelope.
- You have a client who has been repeatedly missing his appointments. The next time you confirm an appointment with him, you call his home number, and leave a message about the appointment on a general answering machine or service. Should you address the need for regular attendance at therapy in your message?
- Answer: no. His family members, friends, or house guests might hear the message, and learn: (a) that he is in psychotherapy; (b) that you are his psychotherapist; and (c) that he has not been regularly attending his appointments. All of these constitute violations of confidentiality. The federal Department of Health and Human Services (which oversees HIPAA compliance) advises that while you may leave messages for clients on their answering machines, you should limit the amount of information you disclose. Address attendance during your next session. You should also probably check with the client, during your first session, on the best way to reach him and leave messages.
- You can learn everything you need to know about your confidentiality duties—and use our lawyer-crafted model confidentiality forms in your practice—by taking our Law & Ethics CE No. 2, Confidentiality and Client Access to Records.