Confidentiality – Disclosure from a Research and Clinical Perspective
A journal article review and summary
David Segal October 2012
Changes in government, societal beliefs, and results of cases brought before the court mean counsellors will often face ethical dilemmas around the use of notes recorded during counselling sessions. Counsellors are encouraged to seek the advice of colleagues as they navigate their way through challenges especially in the first few years, thus reducing the risk to both counsellor and client by gaining different perspectives. In addition the territorial, state, and national laws can be different and confusing as the laws are interpreted by lawyers and judges on a case by case basis. Codes of ethics can assist in guiding the counsellor in their decisions around what could and should be recorded whilst each client’s individual situation may influence that decision, especially where there is concern that breaches of the law have or could occur. The ethical principle of beneficence or “acting for the good of individuals and society” (Freegard & Isted, 2006, p.17) and non-maleficence “above all, do no harm”(Freegard et al 2006, p.18) is the key theoretical framework underpinning this paper. Counsellors should ensure that these principles guide any decisions regarding record keeping being mindful of who might wish to obtain access in the future.
These six articles have been chosen as they present perspectives on confidentiality in counselling particularly around the tangible notes taken by the counsellor. Going back to 1999 Lucas presents the case of an early court intervention in the subpoenaing of notes, and the effect she had on lawmakers at the time. The notes taken by counsellors have serious implications for the client, a concept supported by Hands who goes on further to state that “direct disclosure could harm (the client’s) psychological health.” (Hands, 1999, p.59). The Australian Psychologists Code of Ethics requires that “Psychologists make and keep adequate records”(APS, 2007). There are however important considerations in regard to both storage and security especially over the minimum seven year period (King, 2010, p.62). Kampf, McSherry, Ogloff and Rothschild (2009, p.32) state that one of the key points is that “disclosure should be well assessed, be limited as to its contents as well as to the persons receiving confidential information and be well-reasoned as to why particular information was revealed to whom”.
In terms of keeping the clients information safe King states that “the best form of protection is not to record at all” (2010, p62.). This in context refers to the security of these records due to loss or theft. It is King’s opinion that notes should be kept to a minimum and working notes be destroyed where they are not required as part of the lasting record. Further considerations need to be given to electronic records especially where email is used for counselling as “email is not always secure, thus an email can be said to be public communication.”(Pelling, 2009 p.10). Confidentiality for the client is not limited to theft of records though as Lucas points out “there is a new threat to a survivor’s dignity and privacy. Defence lawyers have started to subpoena the counselling notes of those survivors who seek the support and advocacy of sexual assault and rape crisis services.”(Lucas, 1999 p64). In Lucas’ Sexual Assault: Counsellor Notes and Subpoenas, the author discussed the need to ensure confidentiality in cases where sexual assault survivors have their counselling notes subpoenaed in an attempt to vilify them. The ethical principles of beneficence and non-maleficence are common themes throughout all six of the papers reviewed. Clients need to know where their information can go and effective counselling is unlikely if the client does not trust the counsellor because they may be reluctant to “disclose certain information” (Kampf & McSherry, 2006) “that is highly personal, and this can only take place in a relationship where they believe they will not be harmed by their disclosures.”(Shaw, 2010, p.57).
The stand that the Canberra Rape Crisis Centre took (Lucas, 1999) was significant and 13 years on “Every state and territory—except Queensland—now has specific legislation protecting counselling communications.”(ALRC, 2012, p.1). This shows the value and significance of professional organisations and the effect they can have on lawmakers. The reason counselling notes are subpoenaed is to analyse them for inconsistencies in the story of the client (Lynch, 2009, p.1) making it extremely important for the counsellor to, either record precise details correctly or to record more generally to ensure they do no harm if the notes are used in court. Ownership of these records rest with the client who may want them for another therapist; for legal purposes where “clients might reasonably wish to ensure that any information held by the therapist is accurate” (King, 2010, p.61); or “where a client sues for negligence” (Hands, 1999, p.59) they have the right to counsellor notes. The perspective of Patford & Tranent is geared toward the third party who might be harmed due to the client’s problem gambling. Whilst it is crucial to ensure an environment of trust in order to foster a good professional relationship with the client it is important to consider the impact they may have on a third party. It may be likely that the counsellor will have to refer the client on as the trusting relationship may be harmed making further counselling ineffective. All eight authors clearly state that where there is any doubt about when to disclose it is important to get advice from colleagues and sometimes legal advice to ensure the counsellor makes the right decision.
The law is subjective as interpreted by lawyers, judges and juries. As a result the issue of confidentiality is complex and each client can present new challenges around ethics and the responsibilities of the counsellor in regard to record keeping and disclosure to third parties. A counsellor has a responsibility to the client as well as to third parties who, in some cases, may seek to harm the client therefore the duty to disclose must be carefully considered and the counsellor would do well to seek guidance and legal counsel when there is any doubt. Above all responsibility of the counsellor is to the client so where a third party is being harmed and the duty to disclose is realised it is likely that the counsellor may need to refer the client on and end the therapeutic relationship in order to inform third parties of the impact. Counsellors need to be mindful of the content and relevance of note taking whilst anticipating a range of future scenarios specific to the challenges each client presents them with. Australian Law presents the practitioner with a confusing array of information making it very difficult to know when to disclose and why. What is certain however is that practitioners need to consult widely from colleagues, legal professionals and the client themselves in order to ensure information is provided to the right people for the right reasons.
Article1: Sexual Assault: Counsellor Notes and Subpoenas Psychotherapy in Australia, Di Lucas (Lucas, 1999)
This article details the catalyst for change where in 1995 the Co-ordinator of the Canberra Rape Crisis Centre (CRCC) was subpoenaed to provide counsellor notes. Whilst the CRCC complied with the subpoena to attend court they would not hand over the documents which resulted in the Co-ordinator being charged and incarcerated. The actions caused a massive public response which resulted in the legislation amendment. (AECC, 1997).
Lucas writes that many survivors of sexual assault feel they are on trial and “for legal purposes they are witnesses to a crime against the State”(Lucas, 1999, p.64), as such they can be cross examined by solicitors in an attempt to prove they did not consent. This article sets out to discuss the importance of raising awareness and actively campaigning for law reform around the rights of survivors of sexual assault. Since the 1970’s, women’s groups have been the drivers of change in law reform in Australia and The Evidence Amendment (Confidential Communications) Bill, 1997, which was passed in NSW was a response to concerns around counsellor notes being subpoenaed for use in defending perpetrators of sexual assault. This amendment was particularly important as a high ratio of judges and magistrates are “older white Anglo Saxon men without a deep understanding of the effects or seriousness of violence against women” (Lucas, 1999, p.64). Whilst this legislative amendment was reactive to the needs of the sexual assault sector the CRCC would like to see an absolute privilege on the process of subpoenaing counselling notes. Accredited counsellors are bound by their code of ethics to ensure they do the best by their client, in particular – “restrict any disclosure of confidential information about clients to furthering the purposes for which it was disclosed.”(CAPAV, 2012). It would not be difficult to ascertain the bias in decision making in regard to the release of counsellor notes both from the counsellors perspective and the defence solicitors.
Counsellors must feel safe in the knowledge that their note taking will not be used against the client, and that they will use their best ethical decision making process in dealing with any ethical dilemmas or any instances where there is a risk to the safety of the client or to another person. This is in line with the ethical principle of beneficence which the subpoenaing of notes would clearly be in opposition to. It is clear that the views expressed by the Lucas (and reflected by the CRCC) are in response to the high numbers of sexual assault survivors who do not get access to a fair justice process and who may be unwilling to attend court for fear of further attacks on their dignity. The controversy partly lies in the funding model where both the lawyer for the defence and the CRCC are being funded by the same State Government. Whilst justice should be available for every citizen we must also take into consideration the need for rational thinking and compliance by the justice system to apply ethical decision making to the subpoenaing of counsellor notes.
Article 2: Record keeping in psychotherapy Psychotherapy in Australia, Robert King (King, 2010)
King sets out to identify a minimum set of requirements for record keeping “with reference to three separate elements within a record of psychotherapy” (King, 2010, p.1) which are; the initial assessment and proposed treatment plan for the client; records of any time the practitioner has contacted the client; the summary at the end of the therapy. King writes with a background in public mental health services and a long career as an academic. At the time of writing King points out that the literature on this is sparse for example the guidelines from the Psychotherapy and Counselling Federation of Australia (PACFA) require the records to be kept confidential. Other organisations require such assurances that the reports be essential, relevant, non-emotive, and ensure the protection of client’s privacy. It is assumed that the practitioner will have the ethical decision making processes required to ascertain what should or should not be recorded but the author points to some gaps in the literature and guidelines about definitions of content. It is suggested that there are concerns for practitioners and clients about what should be kept, for example an initial assessment, treatment plan and genogram could be very helpful for the subsequent sessions, additionally this information may be valuable to the client and obtainable under Freedom of Information legislation. Third parties such as referrers and other agencies may require such information if the client has harmed themselves or others.
Risks include the barriers to treatment as the relationship can be impeded by the client taking notes during sessions. Loss of sensitive data through theft or negligence is a concern, and records can be distorted based on the practitioner’s own accounts of the process which is particularly problematic when notes are compiled post session. King’s paper is an excellent guide for new practitioners who may feel the need to use this as a checklist to ensure compliance and adherence to the guidelines. The author also points to the problems of keeping working notes which should not be part of the lasting record however in the case of supervision where there is cause for concern around competence they should be kept and discussed with the practitioner.
Article 3: To disclose or not to disclose? Confidentiality and Privilege Psychotherapy in Australia, Peter Hands (Hands, 1999)
This paper highlights the overwhelmingly large percentage of grey areas in the law enshrining duty of confidentiality. Duty of confidentiality is relevant for counsellors among other professions and the laws that govern this duty are varied depending on the state or territory where the counselling is practised and whether federal laws are relevant to the particular example. Hands comes from a background in law as a practising lawyer for many years before a change to psychology later in life giving him a broad perspective on confidentiality as it pertains to law and psychological practice. He points out an ethical dilemma between keeping the records required by the regulatory body governing that practitioner, and the need to ensure there is no tangible evidence which could be subpoenaed by the court. In addition to this there is also the concern for the client who may not benefit from the contents of such records; this highlights the importance of the realisation and actualisation of the practitioner in subjective record keeping. There are exceptions where confidentiality may be breached such as; where information was not received in confidence i.e. it was already known to the public; where the client consents to the disclosure, either expressly or implied; and when disclosure is required by the court. When the practitioner chooses not to disclose information to the court there is the chance the courts will not insist on using that evidence, in addition there are some interesting privileges which allow certain professions and individual’s immunity from contempt of court, these include where the information may self-incriminate, those receiving religious confessions, and all forms of communication with someone giving legal advice. Other privileges include sexual assault privilege (privileging the survivor), and confidential relationship privilege. If there is a perceived threat to the individual or other persons including the general public then confidentiality can be breached. Practitioners have a duty to disclose information to protect the public however determining the level of risk a client is to others can be difficult and it would be a court analysing events after the fact who would determine if there was any negligence or fault in that case. In summary the author states that the laws are different in every state, the law is almost never ‘black or white’, and nothing is ever final until the court reach a conclusion.
Article 4: Confidentiality and the Duty to Report: a Case Study The Family Journal: Counselling and Therapy for Couples and Families. Richard E. Watts (Watts, 1999)
This paper is a discussion about the ethical and legal limits and exceptions of confidentiality, highlighting the power a counsellor has in regard to confidentiality and the ethical decisions they need to make regarding clients whilst taking into consideration the regulatory body whom they report to and the relevant legislation around reporting. The author comes from a strong background in academia with a background in religious education differentiating him from the other authors. The author provides an interesting case study where a counsellor had an ethical dilemma around confidentiality issues with the disclosure of a couple who were receiving marriage counselling when it was revealed that the husband had purposefully killed an elderly woman. One might assume that disclosure of such magnitude would mean the counsellor would be required to report to police however as the case unfolds complications arise. The ethical codes of the American Counseling Association do not cover past crimes therefore the counsellor would have to have a serious concern that the client would do something similar in the future. The counsellor faces a dilemma where if they report the crime to police they may be sued for breaching confidentiality yet their own values are conflicted if they don’t. The age of the victim adds another complication as there are some laws in some states which require professionals to report abuse or even suspected abuse of disabled or elderly people. It is crucial that those practising counselling are fully aware of the laws for the location they are working. The author states that counsellors should consult widely with their supervisor, lawyer or colleagues with more experience because they may be liable for reporting or failing to report when required. Finally the counsellor should encourage the client to disclose to the authorities putting the onus back on them, this should be done regardless of the choice to report. Documentation is crucial but counsellors should consider that tangible evidence is the only evidence that can be seen to exist.
Article 5: With Due Consideration: Australian Human Service Practitioners’ Understandings of Confidentiality and Disclosure Obligations in Regard to Cases Concerning Gambling-Related Theft.
International Journal Mental Health and Addiction, Patford, J, & Tranet, P. (Patford & Tranet, 2012)
This study investigates the beliefs that human service practitioners have in regard to disclosure around gambling related theft in clients. Where the findings report disagreement or uncertainty, professional associations should consider investigating their codes and training requirements. Tranet’s area of interest is the attitudes of particular groups (such as ethnic, political, religious) which was the focus of his PhD. The research in this paper focuses on the group associated with gambling related theft. Whilst confidentiality is very important for the client the psychotherapist must consider third parties who may be impacted negatively by the client’s actions. Practitioners who choose to disclose face a range of penalties if the disclosure was unwarranted, additionally they face penalties for not disclosing consequentially they should seek legal advice to assist in the decision. The law however is not clear given the nine legal jurisdictions, the magistrate’s discretion, previous precedents, and rules for private and public sector practitioners.
The author points out that “legal, professional and organizational imperatives may not always coincide”(Patford & Tramnet, 2012, p.2) so practitioners should seek a range of advice when a dilemma exists and previous studies show that this advice is usually obtained from a colleague. Studies have also shown the many factors are taken into consideration around disclosure so the decision to disclose is usually not straightforward.
Some states in Australia include “economically abusive or coercive behaviour”(Patford et al, 2012, p.4) in regard to abuse within family law whilst others do not, this is problematic for counsellors with respect to standardisation of disclosure around gambling related theft.
This study also found that practitioner bias towards disclosure occurred when there was white collar crime, violence, psychosis or when the client made no attempt to address any issues. There was a strong conclusion that practitioners were likely to disclose when it was not required and that the range of responses from both a legal and ethical perspective was varied.
Article 6: Confidentiality in Therapeutic Relationships: The Need to Develop Comprehensive Guidelines for Mental Health Professionals. Psychiatry, Psychology and Law. Kampf, Annegret & McSherry, Bernadette. (Kampf & McSherry, 2006)
This 2006 paper discusses the methodology of a research project funded by the Australian Research Council which resulted in the publication of the book Confidentiality for Mental Health Professionals: A Guide to Ethical and Legal Principles. The authors envisaged a guide which would make it easier for mental health professionals in making decisions around confidentiality and disclosure. Whilst this book will surely be helpful in guiding the professional there are still complexities within the law and the length of the guide (144 pages) signifies the difficulties the practitioner faces around disclosure. This paper is particularly focused more towards the client, differentiating itself from the other five. It reinforces the statements made by Shaw about the need for clients to have a safe environment where confidentiality is maintained in order for therapy to be effective. The ethical framework is laid out covering four principles: utilitarianism i.e. “The positive outcome can be viewed as a high standard of health care brought about by open communication”(Kampf & et al, 2006); deontology i.e. “the relationship between health care professional and patient should be based on the premise that every communication will be kept confidential”; moral values i.e. autonomy, beneficence, non-maleficence and justice. Finally the code of ethics is discussed in the context of a range of different models presented by different associations. The legal framework is complex and the author points to the confusing fact that there are exceptions to the duty to disclose in common law arise on a case by case basis. They conclude by stating that ethical principles are general and are not going to cover specific situations and the law is confusing at best. Perhaps their research which culminated in the 2009 publication will shine new light on old problems.
ALRC. (2012). 27. Evidence in Sexual Assault Proceedings. Australian Law Reform Commission. Retrieved October 15, 2012, from http://www.alrc.gov.au/publications/27. Evidence in Sexual Assault Proceedings/sexual-assault-communications-privilege#_ftn124
Australian Psychologists Code of Ethics. (2007). Code of Ethics. Melbourne, Australia. Retrieved from http://www.psychology.org.au/Assets/Files/NewCode160807WEB.pdf
CAPAV. (2012). CAPAV – Counsellors and Psychotherapists Association of Victoria Incorporated. code of Ethics. Retrieved from http://www.capav.org.au/capav-pdfs/capav-codeofethics-12-1.pdf
Evidence Amendment (Confidential Communications) Act (1997). NSW.
Freegard, H., & Isted, L. (Eds.). (2006). Ethical Practice for Health Professionals (2nd ed., p. 17).
Hands, P. (1999). To Disclose or not to Disclose? Confidentiality and Privilege. Psychotherapy in Australia, 5(2), 58–63.
Kampf, A., & McSherry, B. (2006). Confidentiality in Therapeutic Relationships: The Need to Develop Comprehensive Guidelines for Mental Health Professionals. Psychiatry, Psychology and Law, 13(1), 124–131.
Kampf, A., McSherry, B., Ogloff, J., & Rothschild, A. (2009). Confidentiality for mental health professionals: A guide to Ethical and Legal Principles (1st ed., pp. 1–144). Bowen Hills: Australian Academic Press.
King, R. (2010). Record keeping in psychotherapy. Psychotherapy in Australia, 16(3), 60–63.
Lucas, D. (1999). Sexual assault: Counsellor notes and subpoenas. Psychotherapy in Australia, 5(2), 64–66.
Lynch, A. (2009). Subpoenaing counselling notes. Australian Children’s Contact Services Association, 20, 1–2. Retrieved from http://www.aifs.gov.au/acssa/pubs/newsletter/n20pdf/n20_3.pdf
Patford, J., & Tranet, P. (2012). With Due Consideration: Australian Human Service Practitioners’ Understandings of Confidentiality and Disclosure Obligations in Regard to Cases Concerning Gambling-Related Theft. International Journal Mental Health and Addiction, Online onl, 1–19. doi:10.1007/s11469-012-9397-y
Pelling, N. J. (2009). the Use of Email and the Internet in Counselling and Psychological Service: What practitioners Need to Know. Counselling, Psychotherapy, and Health, 5(1), 1–25.
Shaw, E. (2010). The Myth of Confidentiality. Psychotherapy in Australia2, 16(3), 57–58.
Watts, R. E. (1999). Confidentiality and the Duty to Report. The family journal: counseling and therapy for couples and families, 7(1), 64–66.