Balancing Disclosure and the Client Relationship

My July/August issue column covered interactions with the criminal justice system, reviewing how to handle subpoenas, search and arrest warrants, and a crime committed on program premises. This column continues to explore that relationship, covering court orders, mandated reporting of child abuse or neglect, repair to damage that counselor disclosures cause to the therapeutic relationship, and “duty to warn” requirements.


Nicholas A. Roes, PhD

When a court order is issued. Even when you are court-ordered to help in the investigation or prosecution of a crime, you must limit what you share to those parts of the record necessary for carrying out the order. For a disclosure to be approved, the court must find that the public interest outweighs any harm to the client, the program's ability to offer effective services, or the client/counselor relationship. The information may be reviewed only by those who need to for the purpose of the order.

An even higher threshold must be met for confidential communication between client and counselor. Courts can force disclosure of such information only if: (a) the client has already presented evidence concerning it; (b) the information is necessary to investigate or prosecute a serious crime; or (c) the information is needed to protect someone from loss of life or serious injury.

Courts are not allowed to authorize disclosure of entire client records to law enforcement, investigating agencies, or prosecutors. In the absence of the client's consent, confidential information can be presented in court only in some very specific and clearly defined circumstances. Proof is necessary to confirm that: (a) the program had a chance to be represented by an attorney; (b) there is no other way to get the information; (c) the crime involved is serious; (d) the public interest outweighs the private harm; and (e) the part of the record sought is likely to contain information important to the investigation.

When a court wants you to share information and the client doesn't, you cannot provide information unless the court has issued an order under subpart E of the 42 CFR Part 2 confidentiality regulations. Confidential communication can be disclosed only to protect life, prevent bodily harm, or investigate or prosecute serious crimes, or in proceedings where the client has first presented evidence involving confidential communication.

Under the law, both the program and the client have a chance to protest the court order before it is formally issued. If the court does issue the order, you must comply, even if the client has not offered consent. If the disclosure is not court-ordered, you may not disclose protected information without the client's consent.

When you suspect child abuse or neglect. Federal confidentiality laws allow you to comply with state laws that require reporting of suspected child abuse or neglect. You can make a hotline report when required, but confidentiality laws still apply to client records.

Every state has a child abuse and neglect reporting law. Counselors are legally required to report suspicion of child abuse or neglect to the local agency charged with child protection. The names of these organizations and their procedures vary from state to state, but they are generally referred to here as Child Protective Services or CPS. The laws are mainly designed not to prosecute criminals, but to help CPS intervene quickly when a child is at risk.

Clients might already have had CPS contact or be drawn into contact once in treatment. While programs and CPS have many common concerns, issues of confidentiality and privacy can be hard to sort out. In 18 states, everyone is mandated to report suspicion of child abuse. Just about every place else, counselors are included among those citizens who must report.

Both HIPAA and 42 CFR Part 2 allow for reporting of suspected child abuse or neglect. Mandated reporters who do not live up to their responsibilities are usually not prosecuted, but if the failure results in serious harm to the child, criminal charges, a civil lawsuit, and loss of professional credentials are more likely. It is not the counselor's job to decide if abuse or neglect has occurred. Most states have laws that offer counselors immunity from liability if they make a mistaken report in good faith. Of course, knowingly filing a false report constitutes a criminal offense.

Adult clients often report that they themselves have been victims of abuse as children. If this occurred in the distant past and no child is in current danger, this is not reportable. But if the abuser now has custody of other children, it might be, and it is usually, best to get legal advice on how to proceed. If the client consents, a report can be filed, even though it is not mandatory.

In other circumstances, clients may disclose that family members or others have neglected or abused a child. Again, if it happened a long time ago and no child is currently at risk, there is usually no mandate to report.

Information usually required in the report includes name, age, and address of the child; name and address of the caretaker or parent; a factual description of the type of abuse or neglect suspected; and name of the suspect. You should disclose only the information required by your state's law. Once you have made the report, you may not release any follow-up information or respond to subpoenas—even if your report resulted in an investigation or prosecution.

In states such as South Carolina, use of an illegal drug may automatically qualify as child abuse or neglect. In other states, including New York, CPS must demonstrate a repeated pattern of behavior that impairs the caregiver. Many states punish women who use drugs during pregnancy. Once again, an attorney's advice is important for you to be able to interact effectively with your clients in this area.

It is best to nurture a solid working relationship with CPS, and stress common goals. The confidentiality laws do not disallow polite interactions, sincere expressions of empathy for CPS workers, or explanations of the laws you are required to follow. Most often you will be working with clients who have signed all of the appropriate consents, and your good working relationship with CPS will be an important ingredient in your clients' successes.

When counselor disclosures harm the therapeutic relationship. A mandated report certainly can create bad feelings about the reporter. Programs have the best chance of keeping clients in treatment when clients are fully informed about the mandated reporting laws at admission, and are reminded about the requirements when appropriate.

If it does not present additional danger to the child, clients may be given the opportunity to self-report from the counselor's office, allowing the counselor to provide support. Other times it may be helpful to make the report in the client's presence, although in circumstances where the child is in immediate danger you may need to make a report without notifying the client.

It is not beyond the realm of possibility that the mandated report will serve as a turning point in your client's recovery. Work to help your client accept appropriate responsibility for past behavior and develop the skills necessary for doing better in the future.

When there is a duty to warn. You might have a “duty to warn” that conflicts with confidentiality laws. It is possible that you or your program could be held liable for harm that could have been prevented by a disclosure of protected information.

The best way to handle this would be to get a valid consent or court order to authorize this disclosure. Otherwise, you might try to warn the potential victim without identifying the client, or to make an anonymous report. But you still could run afoul of confidentiality laws if a court rules that the client's identity could be guessed from the disclosed information.

Try to examine the potential harm of disclosing or not disclosing. Your reasoning could always be second-guessed by the courts or regulatory agencies, but if you believe that violations of confidentiality could protect life or prevent serious harm, the danger of said consequences becomes far less when you decide to disclose.

Resources

1. Checklist for Monitoring Alcohol and Other Drug Confidentiality Compliance. Technical Assistance Publication 18, Department of Health and Human Services Publication (SMA) 96-3083. Government Printing Office; 1996.
2. Confidentiality and Communication: A Guide to the Federal Alcohol and Drug Confidentiality Law and HIPAA. Rev. ed. New York:Legal Action Center; 2006.
3. Duncan D. Confidentiality of Patient Information in Substance Abuse (training course). Retrieved from Addiction Technology Transfer Center of New England Web site: https://www.attc-ne.org.