Ethics and Confidentiality in Counseling

Hello! Welcome to this video on confidentiality within the counseling profession.

Our discussion will focus on aspects of confidentiality embedded in the following counseling-related activities and relationships:

1. The therapeutic alliance
2. Privacy protections
3. Confidentiality exceptions
4. Access to records
5. Record storage and disposal
6. Special populations
7. Technology-based distance counseling

The Therapeutic Alliance

Trust is the foundation of the counseling relationship. The therapeutic alliance is built upon clients entrusting counselors with their innermost thoughts and feelings. Clients have the right to share personal aspects of their lives with the expectation that this information will not be disclosed to outside parties. Counselors are ethically responsible for providing clients with a confidentiality statement outlining what information is protected and when exceptions must be made. This is typically done at the onset of therapy during the process of gathering informed consent and throughout the counseling process.

In a professional clinical setting, confidentiality pertains to any information exchanged between the client and counselor. This rule applies to current, former, and prospective clients. Unless otherwise specified, a counselor must not share the contents of a client’s counseling sessions with others. To do so would be a violation of a client’s confidentiality.

Confidentiality also applies to disclosing whether or not a client attends therapy. In addition, counselors are also careful never to openly discuss the contents of a client’s session with unauthorized persons. In other words, confidentiality violations can occur when confirming or denying client attendance or revealing personal information, whether it’s talking outside of an office with a colleague or at home with a family member.

Privacy Protections

Confidentiality and privacy are often used interchangeably. However, in the context of legal standards, confidentiality is not the same as privacy. The Health Insurance Portability and Accountability Act (HIPAA) is a national law that protects an individual’s privacy by disallowing the release of electronic medical records containing personal health information (PHI) to unauthorized parties. HIPAA provides minimum federal protection, with many states providing additional security measures.

There are also federal protections specific to certain populations, such as those receiving treatment for alcohol or substance use disorder. These laws were developed to enable individuals to pursue substance abuse treatment without fear of discrimination, job loss, or the use of records in criminal proceedings. The Department of Health and Human Services continuously evaluates protocols and revises substance abuse treatment regulations to balance a patient’s right to privacy with the need to provide coordinated life-saving care during emergencies.

Under HIPAA, counselors must obtain written authorization to release a client’s PHI to 3rd parties. Personal information includes any material that is documented in a client’s clinical record, such as test results, diagnoses, progress notes, referral information, biopsychosocial assessments, outcome measures, and compliance with mandated treatment. The authorization to release PHI is often needed to speak with a collateral contact, file insurance claims, discuss treatment with referral sources, or provide documentation for disability claims.

HIPAA also states that clients do not have the right to a counselor’s private psychotherapy notes. While progress notes are part of a client’s clinical record, psychotherapy notes are not. Psychotherapy notes contain things like clinical impressions, hypotheses, informal conversations, or options for follow-up care. Progress notes, on the other hand, have information including but not limited to the type of treatment, response to treatment, counselor interventions, and progress toward treatment plan goals.

Counselors should only create and maintain records and documentation necessary for rendering professional services. This ensures that client records are kept in a secure form and that only authorized persons have access. Counselors must obtain written permission before recording sessions electronically or otherwise. This also applies to allowing others to observe the client’s counseling sessions.

Confidentiality Exceptions

There are exceptions to confidentiality expectations, which is why it is critical that counselors explain the parameters of confidentiality. While counselors must make it a high priority to protect the confidentiality of their clients, limitations do exist. Counselors ensure that they understand when and with whom confidential information can be shared. This information must be delivered in a culturally considerate manner.

Counselors must adhere to ethical guidelines stating that professionals cannot uphold confidentiality in the following cases:

1. If the client is at risk of harming themselves or others. When counselors determine that a client is at risk of “serious and foreseeable harm,” steps are taken to keep clients and the general public safe. In most instances, the risk must also be deemed “imminent.” When a serious suicidal threat is made, counselors are legally required to take action to keep the client safe. In cases where a serious and immediate threat of violence is made toward identifiable victims, the counselor has a legal duty to warn the potential victims. Duty to warn was first dictated by the case of Tarasoff versus Regents of the University of California.
2. If the counselor is made aware of potential child or elder abuse. Counselors with “reasonable suspicion” of abuse have a duty to protect and are legally mandated to make a report. This means counselors do not need to confirm the abuse. The requirement to report need only be based on suspicion.
3. If the counselor receives a subpoena requesting that they appear in court to either provide records or to testify. Protocols must be followed to avoid HIPAA privacy violations, confidentiality breaches, or other legal and ethical consequences. Counselors must first attempt to obtain client authorization. If the client does not wish to provide consent, counselors must assert privilege and proceed accordingly.

Access to Records

When it comes to assessing counseling records, counselors must comply with legal and ethical standards. This applies to clients requesting access to their own records, the transmission of records for consultation and collaboration, and stipulations for the private information of research participants.

Unless ethical or legal guidelines state otherwise, clients must be provided with reasonable access and copies of their records when requested. Access would only be limited or denied when compelling evidence suggests that accessing this information would harm the client or other individuals. In these instances, counselors should document the client’s request and the rationale for withholding information.

There are cases where multiple professionals are involved in client care. Coordinating client care often involves sharing documents, such as the client’s treatment plan, with other providers.

In these instances, counselors must obtain written permission from clients to disclose or transfer records, and additional steps are taken to ensure that receivers of counseling records are sensitive to their confidential nature.

Counselors should make every effort to ensure that privacy and confidentiality are maintained by subordinates, including employees, supervisees, students, administrative personnel, and volunteers. When services provided to the client involve participation with an interdisciplinary or treatment team, the client should be informed of the team’s existence and composition, the type of information being shared, and how that information is shared.

Information shared in a consulting relationship needs to be discussed for professional purposes only. Written and oral reports must only include data relevant to the purpose of the consultation, and every effort needs to be made to protect client identity and avoid an undue invasion of privacy. Counselors consulting with colleagues should refrain from disclosing confidential information identifying a client, another person, or an organization with whom a confidential relationship exists without prior authorization. Counselors only disclose information to the extent necessary to achieve the purposes of the consultation.

Counselors conducting research should ensure that collecting a participant’s personal health information is kept confidential. HIPAA guidelines state that a client’s PHI is protected, leaving counselors tasked with omitting identifying information when transmitting data. This also pertains to any information identifying a participant’s employer, family members, or domestic partners. Counselors take similar precautions when electronically transmitting client data, ensuring adherence to policies and procedures, such as using an encrypted platform and HIPAA-compliant text messaging.

Storage and Disposal of Client Records

Counselors are legally and ethically responsible for maintaining confidentiality and privacy when storing and disposing client records. Counselors should only create and maintain records and documentation necessary for rendering professional services. HIPAA provides legal mandates protecting the confidentiality, accuracy, and accessibility of a client’s electronic health record. Some state and federal laws have explicit directives for how long client information must be stored before its disposal. In the absence of set standards, information should be stored for at least seven years. Counselors are also responsible for providing reasonable precautions to protect confidentiality during employment termination, incapacity, or death.

Special Populations

Counselors providing group work should clearly explain the importance of confidentiality and its limitations. The counselor is responsible for guiding group members toward a common goal and creating a safe, open space for the group to thrive. Group members must also understand that counselors cannot ensure that each member will abide by confidentiality parameters with one another. In case of a group member’s confidentiality breach, counselors must make informed decisions on how to proceed on a case-by-case basis.

In couple and family counseling, counselors must clearly define who is considered “the client” and discuss expectations and limitations of confidentiality. The couple or family unit is often considered the client if a single individual is not specified. When individuals participating in group or family therapy request a copy of their records, counselors provide only portions that relate directly to them and do not include confidential information related to any other client.

Counselors working with minor or adult clients who lack the capacity to give voluntary, informed consent protect the confidentiality of information received—in any medium—as specified by federal and state laws, written policies, and applicable ethical standards. Parents and guardians must be informed about the confidential counseling relationship, consistent with current legal and custodial arrangements.

Counselors working with children and adolescents must have explicit conversations with all parties explaining confidentiality and its limitations. Counselors ensure that families and children understand each situation that would constitute mandated disclosures. It is helpful to remind clients when sensitive information must be disclosed throughout therapy.

Decisions regarding a breach of confidentially are generally contingent upon the minor’s ability to provide legal consent to treatment.  Minors who cannot consent to treatment are often asked to sign an assent, which provides limited confidentiality protections but allows minors to participate in counseling-related decision-making. Counselors are careful to follow legal mandates for confidentiality while balancing the ethical principles of autonomy and nonmaleficence. The legal rights of parents and guardians to access information and make decisions for their children must also be respected.

Technology-Based Distance Counseling

Confidentiality guidelines differ somewhat for clients receiving technology-based distance counseling. Counselors must obtain separate written consent for technology-based services. Clients receiving telehealth services understand that counselors take reasonable precautions to protect confidential information. The same confidentiality protections and exceptions are afforded to telehealth clients. However, anonymity and privacy guidelines differ from face-to-face sessions, with risks including confidentiality breaches through unencrypted or hacked technology. Counselors seek to minimize the risks associated with text messaging by limiting exchanges to appointments and other housekeeping issues.

Clients are also encouraged to determine who can access their private email and who may be listening in on therapy sessions. In turn, counselors inform clients of individuals with access to records, including both authorized and unauthorized employees, information technology specialists, supervisors, and other professionals.

I hope this discussion has provided insight into confidentiality in the counseling profession. It’s important to remember that counselors should ensure adherence to all applicable state, local, and federal laws, and discipline-specific ethical guidelines. It will also be necessary to frequently check for updated policies, standards, and procedures mandated by professional boards and other applicable entities.

That’s all for this review. Thanks for watching, and happy studying!