Beyond Hollywood

My earliest exposure to the topic of confidentiality probably occurred around the age of 12 when I was watching a made-for-TV movie which featured a private investigator, clothed in a trench coat and fedora, breaking into a basement office in the middle of the night, and with just the mere light of a tiny gooseneck lamp, locating a file stamped CONFIDENTIAL, in big black letters. He stealthily put it in his attache case and slipped away into the night, the viewer wondering what secrets lay inside that file.

Fortunately my understanding of confidentiality has evolved since then, and I have been on both sides of the counselling coin: both as a client who missed her counselling appointment and had a “we missed you” message left from the counselling office on a shared voicemail, and currently, as a counsellor whose duty it is to rigorously maintain clients’ confidentiality. It is the latter aspect of confidentiality that I would like to speak about here.

Scope, Limits and Legal Stuff

I’ll admit it: this article is a tome and will appeal most to counselling clients or prospective counselling clients with a thirst for information about confidentiality.  In writing it, I felt torn: on the one hand, who reads long posts? On the other: should a belief about posts compromise putting information out there for those who seek it? In choosing the latter, I’m exercising the liberal use of headings, so if you have a confidentiality question, please scroll down and look for the burgundy headings!

My reference point will be the BC College of Social Workers’ Standards of Practice, the rules which I have agreed to follow, and are required of me as a Registered Clinical Social Worker (RCSW) as well as related British Columbia legislation, most notably the Privacy Act, the Child, Family and Community Service Act, the Personal Information Protection Act and the Adult Guardianship Act.

This article is not a substitute for legal advice or information, and is not in any way a complete discussion of confidentiality; I am not a lawyer and counsellors or counselling clients seeking specific legal advice should consult with an attorney. Obviously, there are also regional and international differences in legislation; I am guided by the law in British Columbia, where I practice.

Confidentiality Defined

One of the things I‘ve noticed about confidentiality is a general assumption that there is a shared definition of confidentiality that “everyone” understands, but while the general meaning of confidentiality may be understood, it is the limits of confidentiality that can come as a surprise. I’ll get to that later in this article.

The B.C. College of Social Workers stipulates that it is the duty of social workers to “hold in strict confidence all information about clients. Social workers disclose such information only when required or authorized by law to do so or when clients have consented to disclosure.” The legal basis of this assertion is British Columbia’s Privacy Act. As explained in a legal commentary put out by the BC Association of Clinical Counsellors, this act gives legal recourse to any individual who has had their privacy violated, unless permitted by law.

Let’s break this down, starting with  holding in strict confidence “all information about clients.” This includes but is not limited to the following:

• Clients’ name, identity and the client’s status as the counsellor’s client (or not)
• Clients’ attendance at counselling appointments
• Information disclosed by the counselling client during a therapy session
• Information about a client obtained through other means, such as via a physician, teacher, hospital, family member or other third party
• Verbal or written information – for example, information imparted in conversations or clinical notes

Release of Information

Sometimes clients request or agree that information be disclosed to a third party. Counsellors will typically ask the client to sign a release using specific guidelines, such as what information is to be disclosed, to whom, for what purpose, when this release of information expires and how this permission can be revoked. In urgent or emergency situations, verbal consent may be acceptable.

A formal release of information may be initiated to:

• Coordinate and organize care with another health care practitioner, particularly if the counsellor and the third party need to work together to help the client
• Obtain background information/health and treatment records from another provider to avoid the client having to run through background details again with the counsellor or other health professional (which can be burdensome or even triggering for the client)
• Assist in the counsellor’s understanding of the client’s situation, particularly when specialized help was offered elsewhere

Additional, separate informed consent would need to be obtained if the counsellor requires information obtained through different means, usually for teaching purposes. For social workers, separate permission is required for photographing, audio or videotaping, or third party observation of a session, as may be the case if a client is working with a counselling intern.

Limits of Confidentiality

Counselling clients may or may not be aware that there are limits to confidentiality and should be informed of such limits before the start of counselling.

Harm to a Child

A counsellor practicing in B.C., as stipulated in the Child, Family and Community Services Act  has a duty to report to child protective services if she or he has reason to believe that a child, 18 years of age or younger, has been or may be at risk of being harmed physically, sexually or is experiencing serious emotional harm (defined as severe: anxiety, depression, withdrawal, self-destructive behaviour or aggressive behaviour), or if the child is experiencing physical neglect by a caregiver.

There is no legal requirement that the counsellor have proof, but rather only if the abuse is known or suspected. Investigation or facts is done by trained child protection workers.

In addition to the obvious risk to children of not reporting, counsellors who choose not to obey the law could face expulsion from practicing their profession, fines of up to $10,000 or 6 months imprisonment, according to B.C. law.

Harm to Others

When a mental health professional believes that a counselling client poses an imminent risk of serious physical harm or death to an identifiable person or generally identifiable group of people, Canadian common law would then trigger a duty for the counsellor to warn the intended victim, contact the local authorities (typically police), or both; this duty to warn is for the purpose of protecting the intended victim or allowing the victim to take steps to protect themselves.

Harm to Self

Most counsellors also have a stipulation in their client service agreements that should clients express the intent to cause significant harm to themselves, or take their own life through suicide, that emergency personnel will be summoned and details about the client (name, date of birth, address and relevant details about their current situation) will be released, for the protection of the client.

If the client is under 19, child protection (or emergency) authorities would need to be contacted, as per the law. If the individual is 19 years of age or older, counsellors are authorized to inform the authorities about the situation as per the Personal Information and Personal Privacy Act, which states that an individual or organization can disclose personal information if “there are reasonable grounds to believe that compelling circumstances exist that affect the health or safety of any individual.” If you live in B.C. and are experiencing suicidal thoughts, please call 911 or 1-800-SUICIDE for 24/7 help. Outside of B.C., contact 911 or your local distress centre.

Vulnerable Adult

There may be circumstances where a counsellor receives information indicating that a vulnerable adult is being abused or neglected and unable to seek support or assistance. In such situation, the counsellor is authorized under the Adult Guardianship Act to make a report.

In this act, abuse refers to “the deliberate mistreatment of an adult that causes the adult (a) physical, mental or emotional harm, or (b) damage to or loss of assets; and includes intimidation, humiliation, physical assault, sexual assault, overmedication, withholding needed medication, censoring mail, invasion or denial of privacy or denial of access to visitors.”

Neglect, refers to “any failure to provide necessary care, assistance, guidance or attention to an adult that causes, or is reasonably likely to cause within a short period of time, the adult serious physical, mental or emotional harm or substantial damage to or loss of assets, and includes self neglect.”

Such a report would typically be made to a “designated responder,” usually the appropriate regional health authority or the B.C. Public Guardian and Trustee.

Court Order

Depending on the nature of the counsellor’s work, she or he may be subject to a court order or subpoena to release clinical information, such as clinical notes or to testify in court.

This can be a very challenging situation for both counsellor and client, particularly if the counsellor perceives that such information will be harmful to the client or cause damage to their therapy or the therapeutic relationship. In cases like these, registered social workers are encouraged by the BC College of Social Workers’ Standards of Practice to advocate against the release of such information, keeping in mind that such efforts may not be successful.

Sometimes a client will request notes or testimony with the aim of strengthening their case.

Counsellors working in the areas of family therapy, divorce/separation and accident/injury may be more likely to be subpoenaed.

Disciplinary Action

If a counsellor belongs to a regulatory college, or selected professional association, and a formal complaint is made by a member of the public about the counsellor’s practice, the client file would be seized by the College and subject to a review and investigation.The counsellor would also be interviewed, and specific facts regarding the complaint reviewed as part of that investigation. Again, if the counsellor is part of a regulatory college, such an investigation is dictated by the Health Professions Act and the Social Workers Act.

Email

It is important to note that email, while an efficient mode of communication, is generally not considered secure and if used, should be limited to basic communication with your counsellor about practical matters such as scheduling issues. Google claims that when both parties are using their email service, Gmail, transmission of emails is encrypted. Google also offers an online tool to look up domains to see how email exchanged with Gmail is encrypted in transit.

Clinical Supervision

Your counsellor may seek clinical supervision to assist them in maintaining an ethical and accountable practice, which could involve, but is not limited to, generating new counselling strategies or problem solving client situations, to help deliver optimal care to clients.

For counsellors in private practice, my belief is that there is usually no need to share identifying information about clients to receive guidance from a clinical supervisor unless it is a high-risk situation where reporting is required or sanctioned by law, as described above. It should be noted that rules around the sharing of client information may be different in counselling agencies, hospitals, mental health teams and group counselling practices, as such information may be shared internally. Be sure to ask your counsellor if you have questions about this.

Collection Agencies

Should a counsellor not receive payment for sessions delivered, some regulatory colleges authorize the counsellor to release the name and contact information of the client to a collection agency in an effort to obtain reimbursement.  The counsellor is not authorized to release any clinical information about the client.  Some counsellors may refuse to schedule subsequent counselling sessions after even one unpaid session to avoid a buildup of debt.

Social Media

While hopefully a rare occurrence, counsellors who choose to follow clients on Facebook, Instagram, Twitter, LinkedIn or other social networks can inadvertently compromise a client’s confidentially by even the mere association with the counsellor. Some professional colleges and associations do allow counsellors to follow clients on social media if it is for a specific therapeutic purpose. This is generally rare, and only done with a client’s consent. For most counselling clients, when a counsellor does not accept your social media request, please do not take it personally!

In Conclusion

Being informed about the parameters of counselling can assist in making an informed decision about choosing counselling, or not. Information about confidentiality should be provided by the counsellor before clients enter into a counselling arrangement. If it isn’t, ask!