While much of the alternative dispute resolution world, and many other professional fields, love to highlight the benefits of confidentiality, many of them fail to point out the limits of confidentiality. Understanding these limits is a vital aspect of sharing your information and keeping your information confidential. Without a clear understanding of when confidentiality will not apply, a party may risk relying on confidentiality errantly and harming themselves and their information. These limits exist regarding certain kinds of information, such as information about harming themselves or someone else, or it may have something to do with the way that the information was shared, such as having another person in the room. This article will outline the concept of confidentiality, discuss its limits in different situations, and then discuss the importance of understanding and explaining these limits. The goal of this article is to ensure that readers can identify situations or information that would exceed the protections of confidentiality and ensure the protection of their information.
Confidentiality is the duty to protect another’s information that was shared between the sharer and the recipient. The protection is for the information itself and not for the sharer. It is also not voluntary if the recipient is in a fiduciary relationship with the sharer because it will automatically require that person to keep the information shielded from the public eye. Confidentiality does not apply to everyone and every situation, as this article will demonstrate, so ensuring that confidentiality is followed, even if it is outside the typical limits of fiduciary duty, must be acknowledged if the sharer needs the information to stay secret. Confidentiality is an ethical duty, so it does not always hold the same weight if it is agreed to by someone without the duty to an ethical board or oversight. Finally, confidentiality is often controlled by the sharer, meaning that the information can be shared with others if the sharer gives permission.
Common Situations with Confidentiality:
To better understand the concept of confidentiality and help describe the limitation, it can help to consider the different areas that which the duty for confidentiality may arise. As mentioned above, there needs to be some kind of duty, whether contractually or professionally, on the recipient to keep the information protected. Therefore, the common examples of when confidentiality will apply to occur when these relationships exist. Common forms of these relationships include:
- Counselors/Social Workers and Patients: Health records, particularly mental health records, are considered private and protected information. Therefore, the people that treat and diagnose patients with mental health issues have a duty to protect the information that is shared with them to help aid and diagnose the patient. This also exists because it allows people to be open with their mental health struggles with a professional who can assist without the fear of that sensitive information being shared with anyone else.
- Attorneys and Clients: The information that a potential client or client provides to an attorney to aid in the prepetition of their case or help an attorney decide if they can take their case is often sensitive information that can be used incorrectly if it falls into the wrong hands. For this reason, the law has created a duty for lawyers to protect the information about their clients quiet. This protects the client’s information and the outcome of the case.
- Alternative Dispute Resolution: Many times in alternative dispute resolution, there will be a duty of confidentiality on the parties and the neutral. This is a distinct duty because all the parties and a third-party neutral will be recipients of some kind of sensitive information and are then responsible for protecting that information from the public. The neutral will also have a duty to protect the information learned from each party from being shared with the other party unless there is permission. This confidentiality exists because it is helpful to encourage the alternative dispute resolution process to move forward quickly and gives the parties privacy from the public eye while they resolve their dispute. The confidentiality of alternative dispute resolution is multi-faceted and can provide some serious considerations when looking at the limitations.
- Contractual: Another common form of confidentiality is the contractual relationship where the parties agree that certain information known by the parties will be considered confidential and cannot be shared. This commonly arises when an employee with secret knowledge of the company is leaving, because it protects these “trade secrets” from being shared.
Other relationships may make the duty of confidentiality arise, but these relationships are the most common and present the most discussion when considering the limits of confidentiality.
Limitations of Confidentiality in Counseling and Social Work:
As discussed above, confidentiality surrounding therapy and social work is an ethical duty that applies to the information shared in sessions. For the most part, this confidentiality will remain intact to allow the person in treatment to speak freely with their therapist, yet there are certain situations that the confidentiality does not reach. While the exact specifics of these exceptions are dictated by local laws, there are some generally accepted exceptions where a therapist may break confidentiality, usually to protect the client or someone close to them. These situations include;
- Threat: Therapists may share information with the appropriate people when a patient poses an imminent and violent threat towards themselves or another person. This means that if a therapist hears that a client may want to harm themselves or someone else, they need to share that with the appropriate authorities. This is to ensure the safety of the client or others.
- Multiple Providers: When patients are receiving treatment for certain mental disorders, they may need to coordinate care for that disorder across various medical providers. This exception allows the parties to avoid telling their story to each provider and allows them to hand off the duty to share the information about their mental health with other providers to their therapist.
- Treatment: Some types of treatment will require that a therapist or provider share information about a client with another person. This can be incredibly common in cases where a child is receiving treatment. A therapist will likely need to share the treatment plan with the parent to ensure that anything that needs to be done outside of therapy is accomplished. It also allows the parent to understand how to help their child.
- Billing: Occasionally, billing situations may require that certain information be disclosed. This is fairly uncommon, but it is something to watch for when considering a counselor and their confidentiality policy.
Of these exceptions and limitations, only the first one is mandated, because it involves the safety of others. The rest of the exceptions are permitted in certain situations. Providers will typically have to use their best judgment and trust that they are protecting their client’s interests.
Limitations of Confidentiality in Attorney-Client Relationships:
As mentioned above, the information shared between an attorney and a client about the case is protected under a confidentiality requirement. This confidentiality is covered in two parts, the attorney-client privilege and the duty of confidentiality. The attorney-client privilege functions similarly to confidentiality in other instances. It requires the attorney to refrain from sharing communication between them and their attorney unless the client agrees. The duty of confidentiality is broader in that it requires the lawyer to not reveal anything about the case to anyone outside of the team working on the case. Even with the fairly reaching coverage between these two duties, there are a few exceptions:
- Third Parties: The attorney-client privilege is often excepted because there was a third party who is not actively involved in the case is around when the conversation happens. Involving a third party, whether intentionally or not, would not protect the communication from being relayed in later proceedings if someone hears it.
- Future Crime or Fraud: If a client tells a client about their past misconduct, that is protected by confidentially. However, if a client tells their lawyer that they plan to commit a serious crime or fraud in the future, that communication is not protected and an attorney may disclose this factor may be required to in some cases.
- Future Harm: Similar to the discussion above, an attorney is often required to disclose when they learn that their client intends to harm another person or kill them.
These tend to be the major limitations with confidentiality when it comes to attorneys and their clients. The ethical boundaries placed on attorneys really prevent attorneys from disclosing information unless it is in dire circumstances.
Limitations of Confidentiality in Alternative Dispute Resolution:
As stated above, confidentiality in dispute resolution is often multifaceted because it applies to communication between the individual parties and the neutral as well as the parties in the mediation and the outside world. When it comes to limitations and exceptions, courts tend to enforce confidentiality in mediation and other alternative dispute resolution processes more often than not. A commonly cited example is a case where a party attempted to sue for sanctions against an attorney who operated in bad faith in mediation. The court, in that case, held that the party bringing the motion was actually subject to sanctions for violating confidentiality. With this in mind, we will consider some small exceptions, understanding that the courts tend to lean heavily in favor of confidentiality. These exceptions are:
- Contempt: If a party is acting in a manner that could subject him to civil or criminal contempt in mediation, the neutral is permitted to testify to this conduct in a subsequent civil proceeding. This includes failure to appear when ordered or the failure to send an individual with the appropriate authority.
- Crimes: Similarly, a neutral may testify in a subsequent proceeding if there is conduct that could be a crime. This would include obstruction of justice or threatening violence toward another participant.
- Bias: A mediator may testify if there is bias or personal knowledge about the case from a decisionmaker in the case that should not have such bias.
There are several other very narrow exceptions to these rules, but the overarching theme is that confidentially surrounding mediation and alternative dispute resolution will be enforced in most instances. This is to protect the mediation process and ensure that mediation is conducted in such a way to ensure that the agreements are proper.
Benefits of Knowing the Limits:
In situations like counseling and attorney relationships, the parties need to understand these limitations because they impact their ability to consent to services fully. Counseling specifically requires informed consent, meaning that the party needs to be fully aware of all aspects of the treatment, including confidentiality and its exceptions, to consent to services. When a patient is unaware of the limitations that are present with confidentiality, they risk not completing informed consent, putting too much weight on confidentiality, and sharing something that they do not want to share.
While confidentiality is great protection for people’s information, it can also become more of a protection than it actually is in people’s minds, and it can instill a false sense of confidence. Knowing the limits of confidentiality can give a person more confidence that their information will be protected within those limits. Sharing something with someone else and then learning that the information shared was not protected can be damaging both in that relationship and for a person’s privacy. Additionally, if a person does not put enough weight on confidentiality, they may believe that they have more recourse than they do. Understanding how confidentiality is affected by various exceptions in certain situations can help the parties feel confident in the protection of their information. Confidentiality is a great way to encourage people to participate in counseling, legal services, and alternative dispute resolution; however, the parties need to be aware of the limitations and how they impact the protection of their information.