While many of the legal and 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 and confidentiality exceptions, a party may risk relying on confidentiality errantly and harming themselves and their information.
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.
Defining and Understanding Confidentiality
Confidentiality is the duty to protect a client’s information that was shared between the client and the party providing a professional service. The protection is for the information itself and not for the client. It is also not voluntary if the client is in a fiduciary relationship with the provider because it will automatically require that person to keep the information shielded from the public eye.
Confidentiality is an ethical duty, so it does not always hold the same weight if it is agreed to by a party without the duty to an ethical board or oversight. Finally, confidentiality is often controlled by the client, meaning that the information can be shared with others if the client gives permission for any disclosure or allows the service provider to breach confidentiality.
Common Situations with Confidentiality
To better understand the concept of confidentiality and the limits of confidentiality, it can be helpful to consider the different areas that which the duty for confidentiality may arise. As mentioned above, there needs to be some kind of duty, or ethics, on the party providing a service to keep the information protected.
Examples of these relationships include:
- Counselors/Social Workers and Patients: Health records, particularly mental health services 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. The certainty of client confidentiality is vital for trust building. These privacy policies allow 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 quietly.
- 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 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 data known by the parties will be considered confidential information 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 examples 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 a moral duty that applies to the information shared in counseling sessions. While the exact specifics of these exceptions are dictated by local laws, there are some generally accepted breaches of confidentiality, usually to protect the client or someone close to them. These situations include:
- Threat: Therapists may break their therapist-patient confidentiality and share information with the appropriate people when a patient poses serious harm or danger to themselves or someone else. A therapist is legally required by state laws to report and disclose this type of information to ensure the client’s safety and the well-being of everyone else.
- 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 allows the parties to avoid telling their story to each provider and allows them to break confidentiality and share specific concerns and consult accordingly across multiple health care platforms with similar resources and access.
- Treatment: Some types of treatment will require that a therapist or healthcare practitioners share information about a client with another party. 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 limitations, only the first one is mandated by state law and regulations, 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 can breach confidentiality and is legally required to report and write up a disclosure.
- 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 of 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 a breach of confidentiality. With this in mind, we will consider some small exceptions, understanding that the courts tend to lean heavily in favor of confidentiality.
- 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 as to ensure that the agreements are proper.
Confidentiality and Minors
Therapists who treat minors often have to balance their therapeutic relationship with the minor’s need for confidentiality and the parent’s desire to be informed about the minor’s treatment. Since only a parent can consent to treatment, the clinician must explain the limits of confidential information that can be disclosed.
The extent to which the psychologist explains the limitations on confidentiality will depend on the child’s age and maturity. Certainly, however, a therapist or clinician must report any suspected child abuse or child abuse. Neglect or abuse falls under mandatory reporting laws.
If a child discloses an intention to harm other children during a psychotherapy treatment or counseling session, the relevant laws require the therapist to break confidentiality and report this.
Benefits of Knowing the Limits
In situations like counseling and attorney relationships, the client needs 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.
To learn more about the limits of confidentiality and more, check out ADR’s blog here!