CONFIDENTIALITY & PRIVILEGED COMMUNICATION

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

EXCEPTIONS TO CONFIDENTIALITY

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

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

EXCEPTIONS TO CONFIDENTIALITYDuty 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

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

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”

CONFIDENTIALITY: DUTY TO WARN-MORGAN DECISION Matt’s sister as executor of their

parents’ estate initiated a suit against the psychiatrist and FFCCAlleging 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.”

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

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 actionchoosing the one least likely to violate the

client’s legal rights.Reasons for rejection of other available actions.

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.

EXCEPTIONS TO PRIVILEGECommission of a crime.Urgent need for hospitalizationClient is using mental condition/status as issue in court caseMitigation or other forensic evaluationMandated reporting

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

CONFIDENTIAL…..BUT…

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)”.

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.

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.

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

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 !

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?