ETHICS FOR TEXAS LICENSED SOCIAL WORKERS: CLIENT CONFIDENTIALITY
Confidentiality is generally considered a cornerstone of the doctor-client relationship. (Alban, A., 2007) Many psychotherapists assume that mental health treatment is most likely to be successful when the client has a trusting relationship with the clinician. (US Department of Health and Human Services, 1999, citing Sharkin, B., 1995) People tend to reveal much of their private selves in the course of receiving counseling.
Trust that clinicians and institutions will preserve client privacy is necessary to maintain the value of mental health services. Laws that protect confidentiality attempt to preserve this trust, so that people will be more likely to benefit from mental health services such as counseling. With trust in confidentiality, people are more likely to pursue counseling, are more likely to afford the level of care that they need by utilizing their insurance and other benefits, and are more likely to divulge information that is needed to ensure effective treatment. In addition to the needs of individuals, confidentiality laws serve the interests of family members, employers and society in general, by helping to reduce the impact of mental and emotional disorders and personal problems.
These laws protect as private information both the fact that an individual has sought mental health treatment, and the disclosures that are made during treatment. (Ibid) Confidentiality laws can also serve to protect the client or other family members and even the social worker from the danger that may result when a violent individual learns that someone they have intimidated is seeking support, or when that individual learns of the identity of the social worker. These laws help to protect individuals from problems such as social stigma, and workplace and housing discrimination.
Legislatures and the justice system have given considerable attention to issues concerning the role of privacy in health care over the last three decades. While the legal right to privacy has been at issue most frequently in procreation and end of life decisions, it is well established as being of great importance in mental health services. (Ibid)
The right to privacy itself, in its most abstract form, has its genesis in the fourth amendment of the Constitution. (Ibid)
Confidentiality and required reporting guidelines pertaining to Texas social workers are set forth in chapter 781.411 of the administrative code. The code points out other laws that govern confidentiality in addition to these, specifically, “ Texas Health and Safety Code, Chapter 181, Texas Health and Safety Code, Chapter 611, and other state or federal statutes or rules, including court room rules of evidence, where such statutes or rules apply to a licensee's practice.” (Tx. Admin. Code § 781.411 a)
It prohibits breaking confidentiality, except as specified in, “Texas Health and Safety Code, the Health Insurance Portability and Accountability Act (HIPAA), and/or other state or federal statutes or rules, as applicable.” (Tx. Admin. Code § 781.411 b) It states, more specifically:
(1) Texas Family Code, Chapter 261, concerning abuse or neglect of minors;
(2) Texas Human Resources Code, Chapter 48, concerning abuse, neglect, or exploitation of elderly or disabled persons;
(3) Texas Health and Safety Code, §161.131 et seq., concerning abuse, neglect, and illegal, unprofessional, or unethical conduct in an in-patient mental health facility, a chemical dependency treatment facility or a hospital providing comprehensive medical rehabilitation services; and
(4) Texas Civil Practice and Remedies Code, §81.006, concerning sexual exploitation by a mental health services provider.
(g) A social worker shall follow the rules of confidentiality set forth in the Health and Safety Code, Chapter 611, and other applicable laws. (Tx. Admin. Code § 781.411 d)
The code requires the following information in a release of information:
(1) name and identifying information of the client;
(2) the purpose of the release of information;
(3) whom the information is being released to;
(4) duration the release is intended to be enforced; and
(5) the signature of the client or guardian representative. (Tx. Admin. Code § 781.411 d)
Rule 505.451 of the Occupational Code provides “Grounds for Denial of License or Order of Recognition of Specialty; Disciplinary Action.” It provides for the board to, “deny an application for a license or order of recognition of specialty and shall revoke or suspend, including a suspension on an emergency basis, a license or order, place a holder of a license or order that has been suspended on probation, refuse to renew a person's license, or reprimand a holder of a license or order…” for listed forms of unprofessional conduct. (Tx. Occ. Code § 741.411, 2003).
One of these items is subsection (9) pertaining to violations of confidentiality.
…directly or indirectly revealing or causing to be revealed a confidential communication transmitted to the license holder by a client or other recipient of the license holder's services unless revealing the communication is required by law… (ibid, subsection 9)
Additionally, the Code of Conduct in the administrative codes states that, “A social worker shall safeguard the client's rights to confidentiality within the limits of the law.” (Tx. Admin. Code, Title 22, §781.401, 7, 2005)
Regarding client record keeping, rule 781.409. titled Client Records and Record Keeping, states in subsection (2) that the social worker shall, “…retain and dispose of client records in such a way that confidentiality is maintained…” (Tx. Admin. Code, Title 22, § 781.409, 2005)
Regarding informed consent, rule 781.403, titled General Standards of Practice, subsection (7) (C) requires the social worker to, “ensure that the individual has been informed of…the limits on confidentiality and privacy…”
Administrative code 781.409, Client Records and Record Keeping, subsection (6) identifies additional codes with which the social worker must comply in regards to confidentiality, saying that the social worker must,
…comply with the requirements of Texas Health and Safety Code, Chapters 161 and 611; Texas Family Code, Chapter 261; and other applicable state law concerning confidentiality of protected health information and the release of mental health records… (Tx. Admin. Code, Title 22, § 781.409, 2005)
Sometimes federal law may be stricter than state law, or apply because of the program that the social worker serves, or because Texas law cites it. These laws include HIPAA and Code of Federal Regulations (CFR), chapter 42.
What is to be Confidential
Client confidentiality must cover the question of whether they are participating in mental health services. Social workers must refrain from confirming or denying that any individual is or has been a client, so long as there is no legal exception to confidentiality. All details of the verbal and written communications in the course of counseling, assessment, testing, reporting and other communications are also protected as private information.
The Place of Confidentiality in the Therapeutic Relationship
Confidentiality is not absolute: In certain types of circumstances, social workers have discretion, or even a legal duty, to disclose confidential patient information. However, casual disclosures appear to be rare. According to Pope, et al., "(f)ew psychologists blatantly breach the confidentiality of their clients." (Pope, K. S. & Vasquez, J. T., 1998) More often, they note, client confidentiality is breached "informally" or "unintentionally." (Ibid) Citing the results of one study, they report: "About three(-)fourths discuss clients – without names – with friends. Only 8.1% discuss clients – with names – with friends." (Ibid) However, they also add: "Surprisingly, over half (61.9%) have unintentionally disclosed confidential data." (Ibid)
As Ethical Standards
The NASW Code of Ethics provides a detailed, itemized set of standards regarding confidentiality. (National Association of Social Workers, 1999) The standards parallel the intent of applicable law.
As an Aspect of Informed Consent
Clinicians routinely provide information regarding confidentiality as an aspect of informed consent. The issues of confidentiality equate to risks and rewards that the client should knowingly choose when entering therapy. There are risks that confidentiality may be breached due to legal responsibilities placed upon the social worker, or breached illegally through an error or an intentional act. Legal and procedural measures to preserve confidentiality afford protection, but not certainty.
The NASW Code of Ethics and the Health Information Privacy and Accountability Act (HIPAA), call for providing informed consent.
Privilege: Not Exactly Confidentiality
Confidentiality of medical information is a right that citizens hold. This right imposes upon social workers a duty to preserve the privacy of their clients. When another duty competes with the social worker’s duty to preserve client privacy, the social worker must assert that one duty is a more important obligation than the other.
For example, if an attorney subpoenas a clinical record, the social worker usually must assert that his or her duty to preserve client privacy is more important than the duty to provide the court with confidential client information. This is the assertion of privilege; that is, asserting that one duty has a privilege over another. By asserting privilege, the social worker is fulfilling the responsibility of “holding” the clients right to privacy.
Patient Access to Records
Clinical records fall under the laws that regulate medical records.
Patients own their health care information without owning the physical files themselves. Patients have the right to review or get copies of their files. (Tx. Health & Safety Code § 611.0045 a) The social worker must provide the requested information within a reasonable period of time and may require a reasonable fee. (ibid i)
As specified in HIPAA, patients may even append records that they feel are inaccurate or incomplete. (45 CFR § 164.526)
A social worker may, “…deny access to any portion of a record if the professional determines that release of that portion would be harmful to the patient's physical, mental, or emotional health.” (Tx. Health & Safety Code § 611.0045 b)
In such a case, the social worker must, “…give the patient a signed and dated written statement that having access to the record would be harmful to the patient's physical, mental, or emotional health and shall include a copy of the written statement in the patient's records. The statement must specify the portion of the record to which access is denied, the reason for denial, and the duration of the denial. (ibid c)
This process of determining the necessity of denial, notifying the patient, and documenting the denial must be repeated, each time a request for the denied portion is made.” (ibid d) This does not prevent the professional from providing access to another professional who will be treating the patient (ibid e) However, the social worker must, “…delete confidential information about another person who has not consented to the release , but may not delete information relating to the patient that another person has provided, the identity of the person responsible for that information, or the identity of any person who provided information that resulted in the patient's commitment.” (ibid g)
As with HIPAA regulations, a “summary or narrative” (ibid h) of the record must be provided to the patient or other authorized person requesting it.
There are many details regarding what must be in a record summary, including time frames for compliance with records requests and charging for preparation of records and summaries. These details are in the laws referenced here, and in the course on confidentiality provided by this vendor.
Unprofessional Conduct and Penalties
Violations of the Occupations Code and the laws and regulations it references, including matters of confidentiality and client records, can result in actions by the board ranging from a cease and desist letter (Tx. Occ. Code § 505.508) to administrative and civil penalties. (Tx. Occ. Code § 505.551) (Tx. Occ. Code § 505.504)
Civil penalties can be from $50.00 to $500.00 per day of violation, and administrative penalties can range from $50.00 to $5,000.00 per day. Much latitude is given to the board in determining the amount of the fines. (Tx. Occ. Code § 505.552) Criminal penalties can be imposed for operating as a social worker without a license. (Tx. Occ. Code § 505.507)
The Health Information Portability and Accountability Act (HIPAA) is the first federal privacy standards act intended to protect patient’s medical records and other health information in the possession of health care providers, including health plans. Congress enacted HIPAA, also known as the Kennedy-Kassebaum Act, in 1996. Developed by the Department of Health and Human Services (HHS), it took effect in 2003. HIPAA provides patients with access to their medical records and gives them more control over their personal health information. The Act is intended to establish a nation-wide floor of privacy protections, meaning that states may maintain or establish more stringent laws without being invalidated by HIPAA. (US Dept. of Health and Human Services, 2000) HIPAA also protects employees who change jobs and protects the rights of people with health insurance. It includes significant privacy, confidentiality, reporting and compliance requirements. (Dauner, C. D., 2001)
HIPAA is also intended to make health insurance coverage more available. It does this through means such as improving the transmission of electronic records and providing improved privacy of health and medical information.
HIPPA rules apply to health care providers and organizations that transmit records electronically in carrying out financial transactions or administrative activity such as claims submission. This includes Internet or email transmission, and the use of electronic media such as CD's. Faxing and electronic data storage are not included. (Alameda County Psychological Association, 2003) The individuals and organizations to which HIPPA applies are referred to as “covered entities.” HHS provides a great deal of information, including answers to common questions at www.HHS.gov/ocr/hipaa. (Ibid) It is better known as a means of regulating corporations such as health plans, hospitals and pharmacies that previously were not as accountable for protecting patient confidentiality. However, social workers in solo private practice stand to benefit by adopting HIPAA compliance, particularly regarding informed consent and maintaining separate psychotherapy notes.
HIPAA procedures are in three parts. The Privacy Rule covers when and to whom providers can disclose confidential medical information. The Transaction Rule includes technical aspects of electronic health care transactions, including the formats to use for health care transactions, such as claims. The Security Rule is intended to ensure that confidential electronic medical data is transmitted in a secure manner. For psychotherapists, this requires establishing administrative, physical and technical procedures concerning matters such as the security of offices, files and data. (American Psychological Association Practice Organization, 2005)
Guidelines for Psychotherapists
HIPAA is respectful of state law when it comes to confidentiality and disclosure of health information, referred to in the law as private health information (PHI). As you would expect, it requires written authorization for all disclosures of PHI, but it exempts "treatment, payment or operations" (TPO), such as billing and training.
The law distinguishes between "use" and "disclosure" of PHI. Use refers to transfer of information within an organization that is a covered entity. Disclosure refers to release of information outside of the organization or the psychotherapist's practice.
TPO Uses of PHI
Psychotherapists do not need a separate authorization for "uses" of PHI (as you’ll recall, that is personal health information) as mentioned above. HIPAA lists the following as TPO (again, that is treatment, payment and operations) "uses".
Use by the originator of the psychotherapy notes for treatment
Use or disclosure by psychotherapists for their own training programs in which students, trainees, or practitioners in mental health learn under supervision to practice or improve their skills in group, joint, family, or individual counseling
Use or disclosure by psychotherapists to defend themselves in legal actions or other proceedings brought by their patients. (Alameda County Psychological Association, 2003, referring to Jenson, D., 2003)
Social workers are to provide their patients with a notice that describes the licensee's privacy practices by the first appointment. The clinician must make a good faith effort to get written acknowledgement from clients indicating that they have received this notice, and the notice must be posted in the psychotherapist's office.
Release of Information Form
For specific authorizations to release information, that is, releases that are not covered by the initial TPO uses release, the client must sign a release form. HIPAA has specific criteria for such a form.
One of the protections for the mental health information of clients afforded by HIPAA lies in HIPAA’s designation and use of psychotherapy notes. HIPAA protects psychotherapy notes from the blanket release that allows medical information to be used for administrative purposes. It requires that the notes be protected from view by anyone other than the psychotherapist and anyone to whom the records are specifically authorized for release. Its protections for psychotherapy notes include the provision that they be separate from the patient’s main record. (CFR 45 § 164.501, 2007) This helps ensure, for example, that the psychotherapy notes will not be accessed by a clerk out of curiosity. (US Department of Health and Human Services, 2000) (Felt-Lisk, S. & Humensky, J., 2003)
Because there are types of information that must be more accessible than psychotherapy notes, HIPAA includes in its definition of psychotherapy notes that they must not include such information, and that it must be kept in the main record. The definition of psychotherapy notes as pertaining to the “contents of conversation” is a very limited definition because it is part of a design to maintain a viable primary record, as well as prevent or limit distribution of the most private information. Below is the definition of psychotherapy notes as in HIPAA:
Psychotherapy notes means notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual's medical record. Psychotherapy notes excludes medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: Diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date. (Ibid)
Disclosing Confidential Information
Authorized Release of Information
The client may consent to a release of confidential information for many reasons, the chief of these being the provision of information to another care provider, such as a psychiatrist or new psychotherapist. Other reasons include providing information that verifies compliance with the requirements of an outside entity such as the client’s probation officer or employer.
Under HIPAA, an organization that provides clinical services may allow staff to have access to client information in order to maintain records, supervise clinicians, do case management and other tasks. Similarly, an individual psychotherapist may reveal information to a person or organization that provides administrative services such as billing. In all cases, the information must be limited to what is necessary to provide the service. This is referred to as the “minimum necessary” standard. (CFR 45 § 164.502 b) The people who have access to that information must treat it as confidential medical information.
The social worker must consider the welfare of the client, even when the client has authorized or demanded a disclosure. If the clinician is convinced that the disclosure is not in the best interest of the client, then the clinician may need to refuse to cooperate with the disclosure and attempt to dissuade the client from making such a disclosure. Consider the example of a client who thinks that providing information to a physically abusive spouse will help the spouse develop more empathy. In such a case, the clinician would have to consider whether the disclosure might actually worsen the danger.
Insurance companies, including managed care companies, have the responsibility to protect privacy. This includes having systems and policies in place to accomplish such protection. Clients are not always aware of what information will be sent to insurers, particularly where managed care policies include reviewing clinical information in order to determine whether to authorize additional treatment or a change in level of care. Informed consent dictates that social workers provide enough information about their relationship with the insurer that the client can make informed choices regarding their confidentiality.
For example, a client may not want certain diagnoses to become preexisting conditions affecting their insurability after a change in employment (and insurance policies) that could take place in the future. In some cases, clients may prefer to pay privately or limit the focus of therapy based on this information. In any case, the social worker should attempt to limit the information provided to only that which is necessary to conduct business with the insurance company, and only in so far as the release of information authorized by the client permits.
Compulsory Mental Health Treatment
Additional confidentiality issues arise when there is compulsory mental health treatment. This occurs when people are compelled by organizations such as courts or employers to seek mental health assessment and treatment for various reasons. A court may compel an individual who has been convicted for driving under the influence of alcohol or drugs to undergo a substance abuse and mental health assessment. The court may require a period of time during which the client must provide urine screens in order to test for evidence of current substance abuse. A person failing to comply with the court orders can suffer legal consequences that may include imprisonment.
Private entities such as employers may compel people as well. For example, many employers have policies that allow them to suspend the disciplinary process. This can prevent the employee from being fired so long as the employee cooperates with a mandatory referral process. This process can include a referral to the company employee assistance program (EAP), and can require compliance with the recommendations of that program. Ultimately, the employee must improve his or her functioning within a period of time that does not constitute a hardship for the employer. (Yourell, 2007)
The social worker must deal with contractual obligations with the organization as well as abide by the ethics and laws of confidentiality pertaining to the patient. Generally, in a compulsory referral, the patient will release the social worker to provide certain limited communications with the referring organization. Usually, the patient can terminate that release at any time. This normally means that the referring organization will consider the patient to be “out of compliance” with the mandatory referral, and impose whatever disciplinary process is slated to occur in the absence of such compliance.
Social workers can learn more about compulsory referrals through the confidentiality course, or by gaining EAP (employee assistance professional) certification.
The social worker must respond to a subpoena, because subpoenas have the force of law. Attorneys are officers of the court, and require information to fulfill their duty in cases. Subpoenas are generally issued during the discovery phase in preparing for trial. Attorneys generally cast a wide net in seeking information; not knowing in advance what information will be of use.53
There are several ways for the social worker to uphold his or her responsibility to protect client privacy. It is very important to plan the response to a subpoena with the help of an attorney, because there are too many legal variables. You may need to attempt to have the subpoena quashed (usually on a technical ground), modified, or even attempt to negotiate with the party issuing the subpoena. (Alban, A., 2007b)
Other Requests for Information or Confidentiality
Social workers may experience requests for information about clients or people believed to be a client from outside individuals or organizations. These may include family members, attorneys, journalists, law enforcement officers, neighbors or other parties.
A straightforward way for the social worker to assert privilege is to state, “I can neither confirm nor deny that the individual is a client, and I cannot divulge confidential information regarding anyone who is a client.”
This statement is true even if there is public knowledge or the person or organization knows of the treatment. It is true even though the client is speaking publicly about the treatment. It is even true when there is an exception to confidentiality, such as child abuse, because exceptions to confidentiality only allow the information to go to specified people or agencies under specific circumstances.
An individual who contacts the social worker about someone he or she believes to be a client may request that the conversation with you be kept from the client. The social worker cannot make such a commitment because it may not be in the best interest of the client.
Unsolicited Information about the Client
An individual may contact the social worker with information about the client. The social worker may consider it in the best interests of the client to accept the information, but should contact the client promptly to disclose that this activity has taken place.
Exceptions to Confidentiality
Confidentiality has its limits, and Texas law spells out several exceptions to client confidentiality. They are threat of harm to self or others, certain lawsuits, a court order, detention of a mentally disordered person for evaluation, and reasonable suspicion of abuse of a minor or dependent adult.
Judicial and Administrative Proceedings
Social workers may disclose confidential client information in certain types of judicial or administrative proceedings. As a general matter, such disclosure is not mandatory; rather, it is a matter of the counselor's discretion. Such disclosure is covered under Title 7 of the Texas Health and Safety Code, § 611, and is discussed in depth in a separate course.
Threat of Harm to Self or Others
There are various ways a person can become a threat of harm to self or others. Risk of suicide and planning to physically harm someone are examples. The social worker must respond appropriately to these risks, and the level of risk is a factor in choosing a response.
Client confidentiality must be breached when there is sufficient reason to believe that the client may pose a threat of harm to self or others. The degree to which a licensee is permitted to breach confidentiality in order to prevent harm varies from state to state. Depending on the jurisdiction, such a breach may be mandatory, discretionary, or prohibited; it may also vary depending on whether the threat of harm is to the client herself or to third parties.
In Texas, it is discretionary, at least theoretically. Under § 781.411(h), "A licensee may take reasonable action to inform medical or law enforcement personnel if the professional determines that there is a probability of imminent physical injury by the client to the client or others, or there is a probability of immediate mental or emotional injury to the client in accordance with the Texas Health and Safety Code, Chapter 611." And under 781.404 subsection (q), a licensee must, "take reasonable precautions to protect individuals from physical or emotional harm resulting from interaction within individual and group settings."
Texas law allows for the release of information, “to medical or law enforcement personnel if the professional determines that there is a probablilty of imminent physical injury by the patient to the patient or others or there is a probability of immediate mental or emotional inury to the patient…” (Tx. Health & Safety Code § 611.004, a, 2)
Nonetheless, Texas licensees should consider carefully any decision to breach client confidentiality to prevent harm, particularly to third parties. Under Texas law, it is likely that greater protection exists for licensees who breach client confidentiality to prevent the client from harming herself than for those who do so to prevent the client from harming others. Disclosure in the context of both harm to others and harm to self is reviewed in depth in a separate course.
When the threat of suicide or violent behavior is significant, the client should be hospitalized for stabilization and further evaluation, and the social worker should provide to the hospital all information necessary for this. The social worker should encourage the client to participate in hospitalization voluntarily, as a social worker would for any change of treatment or level of care. The social worker should explain the nature of the process, the rights of the client, the ways the social worker will support the process, and the client’s ability to stay with the current social worker upon returning to the community. This may help elicit cooperation from the client.
Harm to Others
Many states follow the precedent case law (Tarasoff v. Regents of the University of California, 1976) and subsequent legislation in California. In Tarasoff, a therapist had been treating a patient who had become obsessed with a female student and had told the therapist that he had feelings of wanting to kill her. The therapist informed local law enforcement officials that he believed a threat of physical harm existed, but he did not advise the woman herself. The police visited the patient and determined that there was no imminent threat. Several weeks later, the patient killed the young woman.
The student's parents sued the therapist for negligence, arguing that he had a duty to warn a third party who was the object of a patient's threat (i.e., their daughter). The therapist argued that restrictions on patient confidentiality prevented him from warning the woman. The California Supreme Court disagreed, finding that a therapist does have a duty to warn an identifiable third party of a specific threat of harm made against her by a patient.
Texas courts, however, have not adopted Tarasoff. Indeed, as recently as 1998, in Thapar v. Zezulka (Thapar v. Zezulka, 1999), the Texas Supreme Court ruled that, even where a patient makes a specific threat against a readily identifiable third party, a mental health professional has no duty to warn the third party of that threat.
In Thapar, a therapist treated a patient on both an inpatient and outpatient basis for alcohol abuse, post-traumatic stress disorder, threats of suicide, and paranoid delusions related to his stepfather. During one hospitalization, the patient admitted to his therapist that he "fe(lt) like killing" his stepfather, although according to her notes, he also told her that he had "decided not to do it." (Ibid) After seven days, he was discharged; within a month, he shot and killed his stepfather. The man's widow sued the therapist for the death of her husband, alleging that the therapist was negligent in "misdiagnosing" the patient, in discharging him, in not committing him involuntarily, and in not ensuring that he took his medications after being discharged, as well as in not warning the patient's stepfather of the threat.
The Texas Supreme Court noted that in 1979 (three years after the California Supreme Court's ruling in Tarasoff), the Texas legislature had considered issues of patient confidentiality, and had enacted an extremely restrictive statute barring any disclosure outside the context of certain very limited exceptions. The court found that, under the state's patient confidentiality law, no exception existed that would have permitted the therapist to warn the patient's stepfather. Had she done so, she would have risked professional disciplinary action and a possible malpractice lawsuit by her patient. The court held that there is no legal duty to engage in an activity that is prohibited by statute, and that “(i)mposing a legal duty to warn third parties of patient(s’) threats would conflict with the scheme adopted by the Legislature... ” (Ibid)
The language of § 781.411 (h) provides that a licensee "…may take reasonable action to inform medical or law enforcement personnel if the professional determines that there is a probability of imminent physical injury by the client to the client or others, or there is a probability of immediate mental or emotional injury to the client in accordance with the Texas Health and Safety Code, Chapter 611.” In other words, taking such action is discretionary on the part of the licensee; it is not mandatory, and it says nothing about informing the at-risk third parties of the threat.
Thus, if a licensee believes that a patient poses a threat to a third party, she may inform medical or law enforcement personnel, but she may not inform the person who is the subject of the threat. Finally, the language of this subsection limits such disclosures to circumstances in which there is a "probability of imminent physical injury by the client... to others." In other words, the threat must meet three requirements: It must be 1) probable; 2) imminent; and 3) it must involve physical injury. Subsection (h) does not provide for such disclosure if the threat of harm to others involves mental or emotional injury, unless it is to the client.
Harm to Self
As noted above, § 781.411 (h) also governs breach of confidentiality in the event of a client's threat of harm to himself or herself. Again, the decision whether to breach confidentiality in this situation is discretionary. However, under the subsection's language, there is arguably a stronger case for a duty to, "…inform medical or law enforcement personnel…" in the event of a client's threat to harm himself or herself than in the event of a client's threat to harm a third party.
With regard to threats of harm to third parties, the statutory language limits disclosures to situations involving a threat of physical injury. With regard to a client's threat to harm himself, however, a licensee has discretion to "inform medical or law enforcement personnel" if there is a "probability if imminent physical injury... to the client" or if there is a "probability of immediate mental or emotional injury to the client."
In determining whether to disclose such a threat of injury, two requirements must be met. However, licensee’s should also note that the requirements differ depending upon the type of injury. If the threat is of physical injury, the threat must be both 1) probable and 2) imminent, For a threat of mental injury, the threat must be 1) probable and 2) immediate. Likewise, for a threat of emotional injury, the threat must be both 1) probable and 2) immediate.
Subtitle C of Texas Statutes, entitled “Mental Health Code” addresses issues of voluntary and involuntary assessment and commitment to mental health facilities. When a client who poses an immanent threat to self or others is uncooperative, the social worker must notify the police, who are responsible for initiating procedures that may lead to involuntary commitment.
This can result in temporary hospitalization for further evaluation on the basis that the patient is gravely disabled. Subchapter C, entitled “Emergency Detention, Release and Rights” deals with this. A person may be hospitalized involuntarily (held) for twenty-four hours for “preliminary examination.”
In order for the hold to take place, the designated professionals must make the determination that the individual is gravely disabled. Although the social worker, the neighbors, or the person’s family may feel that he or she is gravely disabled, the professionals making the determination may not agree that a hold can be done according to the specific requirements of the law. In that case, the individual is released unless he or she is willing to receive residential assessment and treatment services voluntarily. Even then, there may not be funding for that individual to receive the services if the person’s symptoms do not rise to a fundable level, or the person cannot afford to pay privately.
The telephone call should be made immediately, and if the client has left or broken contact, the social worker should provide the last known and most likely locations of the client. If the status of the client is uncertain and the social worker cannot reach the client, the social worker can ask that the police perform a “welfare check” by going to the client’s home to determine if additional action is necessary. This can be upsetting to a client, but it is better than allowing risk of harm to persist.
When the client is in a residential setting such as a hospital, it is important that the social worker encourage the providers there to get a release of information allowing them to communicate with the social worker. This way, the social worker may participate in the return of the client to the community and support the treatment plan that is established prior to release.
Additional information on this subject is contained in the relevant law, and in the course on confidentiality.
Criminal activity does not, in itself, pose a mandated reporting condition. The value of psychotherapy to society would be substantially impaired if social workers were required to report all criminal activity, because this would pose a major barrier to seeking treatment for many people. The social worker must consider the elements already discussed, such as threat of harm to self or others and the definition of abuse.
A lawsuit may result in a subpoena for client information. A subpoena is not a court order, and the social worker is obligated to preserve client confidentiality unless there is an exception or an appropriate and authorized release of information. The social worker can respond to such a subpoena by stating that he or she can neither confirm nor deny that any given individual is a client, and cannot release information from a client record without consent or a court order.
Court Ordered Disclosures
When ordered by the court to disclose information about a client who will not authorize the release, the social worker is not obligated to refuse to cooperate with the court. Social workers are not expected to endure penalties for contempt of court, and it is to be presumed that the court has determined that the needs of society in such a case outweigh the values of confidentiality to the client and to society that are described in the introduction to this material.
The NASW Code of Ethics addresses this with sections such as the following:
Social workers should protect the confidentiality of clients during legal proceedings to the extent permitted by law. When a court of law or other legally authorized body orders social workers to disclose confidential or privileged information without a client's consent and such disclosure could cause harm to the client, social workers should request that the court withdraw the order or limit the order as narrowly as possible or maintain the records under seal, unavailable for public inspection. (National Association of Social Workers, 1999)
Abuse, Neglect, or Exploitation of Children or Elderly Persons
Threats of harm to others that involve child abuse or neglect fall into a separate category, covered under Title V of the Texas Family Code, § 261. Under § 261, an licensees who suspects that child abuse is occurring has a duty to report it within 48 hours of the licensee's first suspicion. Such reports must include the child’s name and address; the name and address of the child’s parent(s) or guardian(s); and any other “pertinent information." Reports may be made to a variety of state entities, including:
- a local or state law enforcement agency;
- the relevant governmental department, if applicable;
- the relevant state licensing agency or other administrative body, if applicable;
- a child protective agency designated by a court; or,
- instances involving abuse of one child by another child, the Texas Youth Commission.
As a general matter, licensee’s who breach client confidentiality for purposes of reporting suspected child abuse or neglect, and do so in good faith, are immune from civil or criminal liability. These and other applicable provisions of the Texas Family Code are the subjects of another course.
Threats of harm to others that involve abuse, neglect, or exploitation of elderly persons also fall into a separate category, covered by Chapter 48 of the Texas Human Resources Code. Again, as with abuse and neglect of children, licensee’s have an affirmative duty to disclose such suspicions. Failure to report is a misdemeanor, and the licensees may be subject to professional discipline.
Sexual Exploitation by Mental Health Services Provider
A final form of harm to others involves sexual exploitation of clients. Under Title 4 of the Texas Civil Practice and Remedies Code, § 81, if a licensed social worker suspects that a client is being sexually exploited by another mental health services provider, she has an affirmative duty to report. Failure to do so is a misdemeanor, and risks professional disciplinary action. Such disclosure is discussed in detail in a separate course.
Treatment by Another Mental Health Provider
Client confidentiality may also be breached in the event that a licensee discovers that she is treating a client who is already undergoing treatment with another licensed social worker. Under § 781.403 (1), a licensee "Shall not knowingly offer or provide professional services to an individual concurrently receiving professional services from another mental health services provider except with that provider's knowledge." Once an licensee discovers that such a situation exists, she is required to, "…take immediate and reasonable action to inform the other mental health services provider." At a minimum, the licensee thus must disclose the client's identity and the fact that she has been treating the client; in the course of resolving the situation in a way that best promotes the client's welfare, she may also need to disclose specifics of treatment. However, if such a situation arises, a licensee should take care to disclose as little as possible. The more information that is disclosed, the greater the risk of professional disciplinary sanctions or civil litigation.
Record Keeping and Documentation
Maximizing Client Benefit, Minimizing Legal Risk
Record-keeping and documentation requirements are covered under § 781.409. Among the topics that fall into this category are the following requirements:
- Keeping of accurate records, including (but not limited to) intake documentation, including assessment, treatment plans, dates of treatment, types of treatment, complete and relevant case notes, and billing and payment records.
- Billing records, including (but not limited to) fee schedules, explanation of services and applicable fees; documentation of billing and payment history; and insurance accepted, coverage limits, and associated documentation.
- Retention of records, including (but not limited to) retention methods, required length of retention, differences in retention requirements for adult and child clients, security and storage issues, and disposal.
- Plan for transfer of patient records in event of practice closure, etc.
- Exceptions to record-keeping requirements, including (but not limited to) educational institutions and governmental entities.
The American Psychological Association (APA) has issued model record-keeping guidelines. (American Psychological Association, 2007) As with all APA model guidelines, the guidelines make it clear that " They are not definitive and they are not intended to take precedence over the judgment of psychologists." (Ibid)
As the APA guidelines make clear, client benefit is the most important reason for maintaining and retaining accurate records. Complete and accurate records make it possible to track client treatment and progress (or lack thereof), develop and alter treatment plans appropriately, and ensuring that the client receives the best possible care. However, complete and accurate record keeping also benefits the therapist in a variety of ways. First and most obviously, they help the practitioner to ensure proper treatment and promote client welfare. Second, they help licensee’s ensure compliance with state and professional regulatory requirements, as well as necessary insurance, benefits, and related documentation. Third, but by no means least, they help protect licensee’s in the event of professional disciplinary charges, a malpractice suit or other civil litigation, or criminal charges.
The records that Texas social workers must create and maintain are outlined in § 781.404 (f). Under this subsection, a license is required to "keep accurate records of the dates of counseling treatment intervention, types of counseling treatment intervention, progress or case notes, intake assessment, treatment plan, and billing information." Content that falls into these categories should be regarded as the minimum required under the statute: If a licensee's practice generates other types of patient data that are not specifically itemized in § 781.404 (f), it is likely to be prudent to include such information in a client's formal record. It is also prudent to include a copy of all documentation provided to a new patient during the intake process.
NASW ethical guidelines cover
fundamental expectations for record such as the above. These include, in 3.04 (a) “Social workers should take reasonable steps to ensure that documentation in records is accurate and reflects the services provided.”
APA guidelines go into more detail than those of the NASW, even indicating key elements that must be included. They state that, “Records include information such as the nature, delivery, progress, and results of psychological services, and related fees.” (APA, 2007))
The APA sets forth three kinds of information that the record may include:
Information in the client’s file:
- identifying data (e.g., name, client ID number);
- contact information (e.g., phone number, address, next of kin);
- fees and billing information;
- where appropriate, guardianship or conservatorship status;
- documentation of informed consent or assent for treatment (Ethics Code 3.10);
- documentation of waivers of confidentiality and authorization or consent for release of information (Ethics Code 4.05);
- documentation of any mandated disclosure of confidential information (e.g., report
- of child abuse, release secondary to a court order);
- presenting complaint, diagnosis, or basis for request for services;
- plan for services, updated as appropriate (e.g., treatment plan, supervision plan, intervention schedule, community interventions, consultation contracts).
- health and developmental history.
For each substantive contact with a client:
- date of service and duration of session;
- types of services (e.g., consultation, assessment, treatment, training);
- nature of professional intervention or contact (e.g., treatment modalities, referral, letters, e-mail, phone contacts);
- formal or informal assessment of client status;
The record may also include other specific information, depending upon circumstances:
- client responses or reactions to professional interventions;
- current risk factors in relation to dangerousness to self or others;
- other treatment modalities employed such as medication or biofeedback treatment;
- emergency interventions (e.g., specially scheduled sessions, hospitalizations);
- plans for future interventions;
- information describing the qualitative aspects of the professional/client interaction;
- assessment or summary data (e.g., psychological testing, structured interviews, behavioral ratings, client behavior logs);
- consultations with or referrals to other professionals;
- case-related telephone, mail, and e-mail contacts;
- relevant cultural and sociopolitical factors. (Ibid)
Within these minimums, mental health providers have substantial discretion. For example, determining what information (i.e., the amount of detail) makes patient records on assessment or consultation is a matter of the individual provider's professional judgment. Creating detailed records not only helps the clinician’s recollection, but also fulfills the needs to transfer detailed information required for matters such as transfer of care and hospitalization. Also, there is the concern that the clinician may be vulnerable to malpractice issues inflamed by inadequate records.
Records retention refers to the physical security and availability of records, and the systems, policies and procedures in place to manage them.
Availability refers to the length of time that individual records must be retained and produced, when necessary. These standards vary by jurisdiction, and may even vary between federal, state, and local laws and the requirements of professional licensing bodies.
Texas law requires that social workers must, “…keep client records for five years for adult clients and five years beyond the age of 18 for minor clients.” (Tx. Admin. Code § 781.409, 9)
The physical and electronic security of records is an aspect of their maintenance. The laws regarding records require that they be maintained with adequate security, regardless of the medium in which they are recorded. Federal laws include references to electronic records and their security needs. The tremendous capacity for storage and dissemination of personal information has created entirely new responsibilities for record maintenance and security. Breaches involving thousands of records have occurred as a result of theft and negligence affecting several government agencies and private businesses. This is among the factors that led to the Health Information Protection and Accountability Act (HIPAA).
Billing records are a confidential part of the treatment record. With the exception of issues of psychotherapy notes addressed in HIPAA, billing records should be held to the same high standard as other confidential materials. The previous section on “Maintaining Records” applies to billing records.
Billing records provide special ethics pitfalls: Failure to maintain them properly may subject an LPC not only to professional discipline, but also to criminal liability, which may include state and federal fines, administrative penalties, and a prison sentence.
Security, Functionality, and Accessibility
Security is a critical factor in the retention of records. This includes not only the physical security of the actual records, but also the security necessary to maintain confidentiality of the records' content. NASW ethical standards address retention of records, including the matter of ensuring their security.
When designing record-keeping and retention systems, licensees should keep certain objectives in mind. Records must be created in a timely fashion, to allow for inclusion of all necessary data while the information is still fresh in the social worker’s mind. They should be legible and comprehensible to those who must use them. This may mean typing patient notes to avoid misreading of illegible handwriting. They should also use terminology that is generally accepted in the profession, so that, in the event that another professional must use them (e.g., during a consult) when the license is not present to translate, there are no misunderstandings. For clinicians who use their own private form of shorthand in making patient notes, this may require translating those notes into generally accepted professional terms when reducing them to permanent patient records.
Records must also be organized in a way that permits timely access and retrieval by those who must use them. Storage methods vary: Some practitioners continue to use ordinary paper charts and files; others use only electronic media, which may include a computer's hard drive, CD-ROMs, floppy disks, etc.; and some use a combination of paper and electronic media. Whichever method(s) a licensee chooses, it should be stable, secure, protected from internal damage (such as computer viruses or file corruption) and external damage (such as fire, weather, and vandalism), and retrievable. Security measures are discussed below.
Transfer of records is necessary for a number of reasons, including transfer of care and coordination of treatment. § 781.409 (3) provides that the social worker shall: "in independent practice, establish a plan for the custody and control of the licensee's client mental health records in the event of the licensee's death or incapacity, or the termination of the licensee's professional services..." The term "incapacity" may cover a host of circumstances: serious illness; physical injury; mental or psychological disability, whether temporary or permanent; or substance abuse or addiction problems.
However, social workers should not assume that these are the only circumstances that may require transfer of client records. In order to ensure both client welfare and full compliance with the statute and ethical guidelines, licensees should plan for the safe and effective transfer of client records in case of other eventualities.
A variety of other events in a social worker’s professional and/or personal life can necessitate the need to transfer patient records to another practitioner. Such events often occur suddenly, with little or no warning, and may require immediate action. Examples may include (but are not limited to) the following:
- family or personal pressures or obligations (e.g., the need to care for a gravely ill family member, etc.);
- a professional sabbatical;
- a temporary professional change, such as a visiting faculty appointment at an educational institution;
- an extended vacation;
- relocation to a new city or state;
- inability/failure to obtain or renew license, certification or credentials for specialized area of practice, etc.;
- professional discipline, including license suspension or revocation;
- malpractice or other civil litigation or criminal proceedings;
- closure of practice, either temporarily or permanently; or
- the need to terminate a client's treatment (e.g., because of personal conflicts, lack of progress, patient request, etc.).
As with requirements for the license’s own retention and storage of patient records, any plan for transfer of those records should take into account certain fundamental requirements. These plans should include a “professional will” that specifies how the records will be transferred in case of the social worker’s death. (Holloway, J. W., 2003) Any method for transfer should ensure that records remain legible, readily accessible, and secure.
Today, perhaps the most significant practical consideration in maintaining confidentiality of patient records concerns the risks to electronic data.
Dangers to electronic data used to be limited largely to "hacking," or illegally breaking into another's computer to obtain information. Hackers often engage in such activities for "sport," rather than because they actually want access to the information they retrieve, but the breach to client confidentiality is no less real. With the rise in Internet usage, however, threats to electronic data have increased drastically, and take a variety of forms. Often, no "hacking" is required. Three of the most popular forms are known as "viruses," "worms," and "Trojan horses"; they refer to different types of files that are created specifically to gain access to another's computer files to obtain data, destroy data, or both. "Viruses" are so named because they "infect" computer files with code that alters or destroys them. "Worms" are named for their ability to "worm" their way into a computer's files and wreak havoc. "Trojan horses" operate exactly as the original Trojan horse: They appear to be innocuous files designed for ordinary use, but they contain hidden strings of malicious programming code; once the files are downloaded onto a computer, the code is released and disrupts or destroys the user's data.
Worse, such electronic threats can be downloaded onto a user's computer by way of a Web browser or, most frequently, and e-mail program. In addition, while most e-mail programs and Internet service providers offer "spam" and virus blockers and other security measures, they are unable to keep pace with the threats. As soon as programmers devise a way to neutralize the latest threat, a new one is created that circumvents the latest security measures. Moreover, many viruses, worms, and Trojan horses are designed to "mutate": They contain program code that permits them to adapt to and avoid new security measures.
Social workers, like many other professionals, frequently belong to Internet newsgroups and e-mail "listservs" that help them stay updated on practice developments and other important issues. For most licensees, refusing to use electronic data is impractical; under certain circumstances, it may even put them at risk for charges of malpractice. It is thus crucial that therapists use basic electronic security measures, such as "spam" blockers, virus blockers, anti-virus programs, firewalls, password protection, data encryption, and off-site back-up to ensure, as far as it is possible to do so, that patient records remain safe, secure, and confidential. Licensees should consider using a separate computer for clinical records.
Licensees who protect patients' electronic records and other data as stringently as they would safeguard their own most sensitive information are more likely to be in compliance with state statutory and professional requirements, and are also more likely to meet the requisite standard of care that will help them avoid malpractice or other civil litigation.
Under § 781.403, a few other general ethical requirements apply:
Subsection (5) provides that a licensee "Shall not aid and abet the unlicensed practice of social work by a person required to be licensed under the Act."; and
Subsection (6) provides that the licensee, "Shall not participate in any way in the falsification of applications for licensure. Nor shall an applicant for licensure participate in any way in the falsification of applications for licensure…"
Under these requirements, a licensee thus may not engage in unlicensed practice herself or falsify information related to her application for licensure. However, she also may not "aid and abet" the unlicensed practice of any student, license applicant, or counselor under the licensee’s supervision, or for whom the licensee provides a reference. The requirement that she may not "participate in any way in the falsification of applications for licensure" contains no additional guidance as to the meaning of the word "participate." Licensees thus should assume that "participate" is defined broadly: It likely includes not only situations in which the clinician falsifies information herself, but situations in which the clinician knowingly permits another individual (e.g., a student, supervisee, or applicant for whom the licensee serves as a reference) to submit an application containing false information.
Special Record-Keeping Issues
Collecting Fees or being Sued
If the social worker finds it necessary to sue a client in order to collect fees, the social worker is allowed to disclose the information necessary to conduct the suit. (Bernstein, B. E., & Hartsell, Jr., T. L., 2004, p. 22) This information typically includes dates and charges for sessions and the fact that the services rendered were psychotherapy or other mental health services. The social worker would not disclose any diagnostic or other clinical information.
The social worker is cautioned that financial issues between social worker and client greatly increase the odds of a complaint to the board, or of a law suit. (Yourell, R. A., 2007) (Bernstein, B. E., & Hartsell, Jr., T. L., 2004, p. 22)
If a patient sues a social worker regarding treatment, the social worker is allowed to use clinical records as evidence in self-defense. (Ibid, p. 5)
The subject of fees can become confusing, as historical opinions, ethical concerns, legal issues, and market forces may all weigh on the social worker’s mind. From a business point of view, it could be said that most social workers charge what the market will bear.
Social workers may be tempted to alter their rates based on the ability to pay. It is important to ensure that any such policy is sustainable or modified as needed, and accompanied by a realistic image to potential patients about the nature of the social worker’s practice by, for example, not implying that the practice is a social program when it is not.
In order to avoid accusations of insurance fraud, and in order to be in compliance with insurance contracts, it is important not to raise your fee whenever the payer is an insurance company. The social worker is advised, when adjusting fees, to adjust down from a standard fee, not up. (Leslie, R. S., 2006)
The overhead of verifying patient income claims is unlikely to be appropriate for a private practice, though it is a policy for some social agencies that offer sliding scales.
Contacting Clients via Mail, Phone, Email, and Other Methods
Care must be taken to protect client confidentiality from potential breaches that may occur when using voicemail and other methods to contact the client. It is wise to review with a new client what methods of contacting the client are safe and acceptable. For example, a client who fears domestic violence would not want the social worker’s phone number to show on caller ID at home.
Social workers attach boilerplate text to email and faxes that warn an unintended recipient to ignore the message.
Couples, Families, and Groups
With couples, families and groups, the social worker has more than one client at a time, and some social workers think of the collective as their client. For example, the welfare of the family as a whole is elevated to the status of the welfare of the client. In any case, the social worker holds privilege for each individual. At times, this responsibility can require judgment on the part of the social worker when there is conflict between the desires and rights of the individuals involved. It is important to discuss confidentiality issues at the outset of treatment.
The social worker must preserve the confidentiality of both members of a couple. This can be difficult at times. When starting treatment with a couple, it is wise to broach the subject of secrets and gain agreement on a means of handling this issue. (Leslie, R. S., 2006b) Generally, the couple should agree that the social worker will not be expected to hold secrets. (Leslie, R. S., 2006c)
However, since each individual has the right to privacy, there are cases in which a member of a couple may disclose information to the social worker that that client is unwilling to reveal to the other member of the couple. If the information would have an impact on the other member of the couple and is inappropriate to conceal, the social worker can no longer work with the clients as a couple. (Ibid) Typical secrets include infidelity or the client not wanting the partner to know that he or she has disclosed abuse on the part of the partner. Such disclosures can take place during a telephone call or an individual session.
When this occurs, the social worker typically notifies the partner who did not confide that therapy must be transferred to another provider. The social worker may continue to work with the partner who confided the secret, or may refer both partners to another provider.
Any client can terminate any agreement to release information at any time, and can do so verbally or in writing. This is true even if the release of information does not exist as a signed document, and even if the couple agreed on how information would be shared. The social worker immediately must begin complying with the new directive to protect confidentiality. (Ibid)
If the social worker wishes to refer a partner to another social worker, but the partner is unstable; the social worker must consider the safety of the client in determining whether or how to proceed with a transfer of care. Legal advice should be sought when there is any uncertainty.
The circumstance may arise in which it is necessary to release information about one member of the couple where the other member will not or has not authorized release of information. In this case, information must exclude the identity and implications regarding the identity of the partner, unless there is an exception to the partner’s confidentiality as might occur in a case of child abuse. (Ibid)
However, if a member of the couple requests possession of a copy of the record, this is another matter. The social worker would only release this when both members authorize the release (Ibid), and then only when both members can tolerate reading its contents, as with record releases to individual clients. It would not be realistic to expect a social worker to take the time or to succeed at redacting enough information to preserve the confidentiality of one member of a couple, where the record is of couples therapy. (Leslie, R. S., 2006c)
When initiating therapy, it may help to prevent misunderstandings by introducing the couple to the idea that the couple is the client, in the sense that the couple is primarily working with the social worker on their relationship. (Yourell, R. A., 2007)
Most of the relevant confidentiality issues pertaining to families are discussed in the sections on minors, couples, and groups.
When a family member poses a risk to other family members, the social worker must disclose to the authorities the make up of the family. This is necessary in order for the authorities to assess risk to the family members and to intervene as safely as possible. (Leslie, R. S., 2006c) For example, an abusive sibling may pose a risk to several siblings, even if only one is known to have been abused.
Members of therapy groups do not have the statutory obligation to preserve confidentiality that social workers do. However, the members should be expected to preserve this confidentiality, and this is to be stressed to group members from the beginning. (Leslie, R. S., 2005) This has the clinical value of promoting disclosure within the group, and this value can be explained to the group members.
Group members should also understand the limits of confidentiality, and the additional risk that a member could disclose their personal information. Although this may affect the participation of some group members, it is a matter of informed consent that the members understand the risks and benefits of group therapy, including those related to confidentiality.
There are many aspects to the issues of confidentiality and consent to treatment when children receive mental health care, and the legal issues are not always clear-cut. Minors have a great deal of protection for privacy, as discussed below.
The social worker must exercise clinical judgment in weighing the obligation to involve the family against issues of privacy. (Gudeman, R., 2006) Generally, clinical judgment and the law are not at odds regarding the confidentiality of minors’ medical records.
There is additional information on handling confidentiality with minors in the relevant law, and in the course on confidentiality. (In re Mark L., 2001) (Eby, D. P., 2006)
Texas law allows children to consent to treatment, that is, without parental consent or knowledge as follows:
(a) A child may consent
to counseling for:
(1) suicide prevention;
(2) chemical addiction or dependency; or
(3) sexual, physical, or emotional abuse.
Regarding “consent to counseling” the law states, “A licensed or certified physician, psychologist,
counselor, or social worker having reasonable grounds to believe that a child has been sexually, physically, or emotionally abused, is contemplating suicide, or is suffering from a chemical or drug
addiction or dependency may: (1) counsel the child without the consent of the child's parents or, if applicable, managing conservator or guardian… (ibid, b)
Privilege and Common Practices
In many treatment situations, the social worker gets parental permission to release information for clinically sound purposes. When the child is being seen individually, the social worker should discuss the nature and limits of confidentiality with the child and parents. Generally, the child will have a good deal of privacy, but the social worker will disclose to the parents the child’s overall progress in therapy and specific concerns about his or her welfare, such as dangerous contacts, sex, and drugs.
The social worker can gain authorization to treat a child from just one of the parents in an intact marriage if the parent indicates that they agree about the child receiving therapy.
Certain legal issues and controversies can pose risks and be difficult to judge. These have to do with custody, disagreements between parents, disagreements between parent and child, and danger to the child’s welfare caused by parental involvement. It is especially where there is acrimony that the social worker must beware, so that he or she and the child are not used as weapons by a bitter parent. Even seasoned social workers should get legal counsel if there is any uncertainty or controversy regarding confidentiality, custody, or the child’s legal ability to give consent to treatment.
Withdrawal of Consent by the Minor
The law states that social workers may share records regarding mental health care of a minor with the minor’s parents or legal guardians without the minor’s consent. It states that the social worker may, “with or without the consent of the child who is a client, advise the child's parents or, if applicable, managing conservator or guardian of the treatment given to or needed by the child.” (Tx. Family Code § 32.004, b, 2) The law leaves it to the social worker to determine when this is clinically advisable or prohibited.
Pregnancy of a Minor
The pregnancy of a minor client, coupled with an invocation of privacy, is an example situation that may involve several laws and clinical considerations. By itself, pregnancy is not necessarily a sign of abuse, even though it is a minor who is pregnant. (Leslie, R. S., 2005b) It depends on the ages of the client and the individual or individuals with whom she had sex. It does not necessarily show that there is threat of harm to self or others. It does not necessarily create liability for the social worker if he or she honors client confidentiality, even though there are physical and emotional risks involved in decisions pertaining to the pregnancy, such as that of abortion. (Ibid) Another question is whether the parents would play a constructive role if informed. This can be a good example of a situation with multiple laws and clinical variables in play, and where it may be important to get legal advice.
Often, only one parent will have custody. This is called sole legal custody. The sole legal custodian has the authority to make decisions regarding the welfare of the child. Generally the social worker must at least gain consent of the custodial parent or parents for treatment and release of information for children.
When the social worker does not have access to both parents, the social worker may wish to review the court order to make sure that treatment and any releases of information will not intrude upon the rights of the other parent. (Leslie, R. S., 2007)
If the court order is vague and the social worker is not on solid ground, it is important to prevent disruption of therapy that can occur in a legal battle, and to reduce vulnerability on the part of the social worker to a complaint. In such a case, the social worker may insist that both parents agree before treatment will commence. In the absence of that agreement, the social worker may decide to refuse to treat until the parent gets a court order specifically addressing the issue. It may be adequate to ask that the attorney for the parent requesting treatment of the child provide a letter indicating that the parent is compliant with existing court orders. (Ibid)
It is important that the social worker not be manipulated or intimidated by a parent who may have misunderstandings about these issues and who may demand concessions from the social worker that are not in the best interest of the child and are not legally defensible. The social worker must realize that a litigious party may be quick to complain about or sue a social worker who makes an error such as treating a child without the custodial parent’s consent.
Even when there has been agreement between parents regarding the treatment of their child and treatment has begun, one parent may later communicate to the social worker that he or she is withdrawing or revoking their authorization to treat the child. This may occur despite the fact that the other parent and the child want treatment to continue, and that it is in the best interest of the child.
In this situation, the welfare of the child generally dictates that the social worker take the same position regarding termination of treatment as he or she did regarding initiation of treatment. That is, that both parents must consent to the termination of treatment. In other words, the social worker will not stop the child’s treatment on the sole basis that only one of the parents has demanded this. This rationale is strongest when the court order specifies that both parents must consent to treatment. (Leslie, R. S., 2005b)
Patients are often naïve regarding the nature and responsibilities associated with their insurance policies. In the interest of informed consent, and avoiding trouble down the road, the social worker should help the patient understand what information will be provided to their insurance provider, and the patient’s ultimate responsibility for payment. (Ibid) Typically, this information includes a diagnosis and dates and types of treatment. However, managed care companies that perform functions such as provider network and utilization management for the insurer may require additional clinical information in order to authorize additional care. (Leslie, R. S., 2005c)
A client with HIV/AIDS does not typically pose a serious and immanent threat of violence to an identified individual in such a manner that the social worker would be mandated to report it as a threat. (Ibid)
An important point here is that a threat to the confidentiality of individuals positive for HIV, while it may protect some sexual partners, it would also pose a threat to public health by discouraging people from disclosing their status and receiving treatment. (Lin, L., & Liang, B. A., 2005)
45 CFR § 164.526
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