Clinical Record Keeping

Chapter 10 discusses only ethical issues related to the confidentiality of patient information that has been recorded, whether on paper or electronically. It examines the shift away from clinical (patient-centered) and ethical (patient-protective) considerations and toward a risk management (therapist-protective) focus, and that documentation serves many functions, but addresses only ethical and legal issues related to confidentiality, regardless of the function being served.

Step 2: Telling Patients the Truth About Confidentiality’s Limits

Chapter 5 walks therapists through Step 2, and covers two conversations in which therapists must explain confidentiality and its limits, and how therapists are ethically required to conduct informed consent conversations about confidentiality in two different contexts. It discusses how patients must be given enough information to allow them to make an informed decision about whether to confide in this therapist in the first place, and how that conversation must be reopened if the therapist believes the patient has forgotten the rules about confidentiality, or if the disclosure risks have increased because of changes in the patient’s circumstances, changes in the law, or changes in the therapist’s policies. It shows how this later conversation allows the prospective patient to pause and assess the risks of confiding further, and why informed consent about confidentiality must be an ongoing process, not a static, one-time event.

Step 1: Preparing

Chapter 4 walks therapists through Step 1 - some of the preparation that is required for protecting patients’ confidentiality rights. This is presented as the first Step in the Confidentiality Practice Model (Box 3.1 in Chapter 3) because some of the most important decisions a therapist makes about confidentiality must be made before the patient arrives. It includes learning ethical standards that define confidentiality, learning laws that can affect therapists’ ability to protect confidentiality, organizing laws based on their ethical implications, obtaining consultation and developing resources, making difficult decisions, and practice pointers.

Introduction to Part II: The Ethics of Conditional Confidentiality

Part 2 of this resource discusses the ethics of conditional confidentiality, and covers the steps in the Ethical Practice Model, and the chapter titles in this section reflect the subject matter of each step in the model.

Step 3: Obtaining Truly Informed Consent Before Disclosing Confidential Information Voluntarily

Chapter 6 walks therapists through Step 3, and covers how to obtain truly informed consent before disclosing confidential information voluntarily. It emphasizes that ‘confidential’ is a reminder that every disclosure of patient information constitutes an exception to the rule of confidentiality, and how therapists are often tempted (or urged by others) to create their own ‘personal exceptions’, and this chapter is therefore a reminder that, ethically speaking, confidentiality is still the rule. It also examines how, in the absence of a legal requirement to disclose, information about a patient should ordinarily remain confidential, and therapists should not disclose it without first obtaining the patient’s consent, either as part of the informed consent process at intake or in preparation for a patient-specific disclosure.

Laws Affecting Confidentiality

Chapter 2 discusses laws affecting confidentiality, including the underlying legal concepts, laws protecting confidentiality, non-disclosure laws, the Health Insurance Portability and Accountability Act (HIPAA), and laws limiting confidentiality, laws allowing therapists to disclose information without patient consent.

Step 4: Responding Ethically to Legal Demands for “Involuntary” Disclosure of Patient Information

Chapter 7 discusses disclosures that are legally coerced, and how this can create very different ethical obligations for therapists in comparison to disclosures that are voluntary, because the implications for patients can be very different. It addresses how therapists are always ethically required to obtain the patient’s explicit consent, and also covers how therapists may be legally required to make the disclosures discussed in this chapter even if the patient objects.

Ethics-Based Staff Training About Confidentiality

Chapter 13 discusses ethics-based staff training about confidentiality, including ethical standards and professional recommendations, legal requirements, integrating ethical and legal training about confidentiality, separating ethics-based training from technical training or administrative training, and recommendations when planning integrated staff training.

Confidentiality in Specific Roles and Settings

Chapter 12 discusses confidentiality in specific roles and settings, and covers educational settings, academic and training settings, research settings, medical settings, legal settings and forensic roles, military and intelligence settings, business, industrial, and organizational settings, independent clinical practice, home offices, rural and ‘small-world’ settings, services provided in the patient’s home or other out-of-office setting, and consultation and supervision roles.

Step 5: Avoiding Preventable Breaches of Confidentiality

Chapter 8 discusses avoiding preventable breaches of confidentiality, which can include appropriate conversations in inappropriate places, potentially appropriate disclosures made without appropriate consent, overdisclosures, accidental disclosures; and ‘technology glitches’ (transporting patient data on laptops or disks that are easily lost or stolen). It covers ethical responsibilities, avoidable pitfalls, and practice pointers.