Lecture 4 confidentiality, disclosure and the law.

1. LECTURE 4:
CONFIDENTIALITY,
DISCLOSURE AND THE LAW
Kevin Standish

2. LEARNING OUTCOMES
1. Described the legal boundaries for
maintaining confidentiality
2. Explore the issues of confidentiality
and ethical conflicts
3. Identify when disclosure is
appropriate and under what
circumstances

3. 1. CONFIDENTIALITY
1. The legal concept of
confidentiality
2. The importance of
confidentiality counselling
3. Confidentiality and ethics

4. 1.THE LEGAL CONCEPT
OF CONFIDENTIALITY
1. Based on the idea of equity or fairness in that a
person who has received information in
confidence should not take unfair advantage of it.
2. It is based on the legal concept of privilege
3. Counsellors can inadvertently or intentionally
breach confidentiality
4. The law tends to take a benign and supportive
view of the need for confidences as part of
everyday working practice

5. 2. THE IMPORTANCE OF CONFIDENTIALITY IN COUNSELLING
1. What makes confidentiality important
in counselling?
2. It helps form the relationship based
on trust
3. If creates safety and security for trust
to develop
4. It protects the client’s autonomy in
other use counselling

6. 3. CONFIDENTIALITY AND ETHICS
1. What are the ethical principles upon which
confidentiality is based?
2. The practice guidance in the ethical
framework
3. The professional code of conduct
4. Agency and organisational practice
guidance and codes of conduct
5. Principles of fidelity and keeping trust

7. 2.PRIVILEGE AND
CONFIDENTIALITY
1. The idea of privileged
information
2. Privilege and couple
counselling
3. The limits of medical
confidentiality

8. 1. THE IDEA OF PRIVILEGED
INFORMATION
1. The idea of professional privileged communication
between therapist and client being protected is not
valid in the UK. This is an American concept.
2. Professional privilege: protection against
compulsory disclosure of confidences, applies
only to client lawyer communications for legal
advice
3. marital negotiations for reconciliation or
separation can be privileged from disclosure

9. PRIVILEGED INFORMATION/CONFIDENTIALITY/PRIVACY

10. 2. PRIVILEGE AND
COUPLE COUNSELLING
1. In matrimonial cases privilege exists where
they are seeking advice for reconciliation
or separation.
2. The privilege is held by the party is not the
therapist.
3. The therapist cannot waiver this privilege
to inform the court of the content of
discussions without permission of both
clients

11. 3. THE LIMITS OF MEDICAL
CONFIDENTIALITY
1. Doctors are required to maintain
confidentiality but not exempt from the
legal obligation to disclose information.

12. 3. CONFIDENTIALITY AND
PUBLIC INTEREST
1. Public interest in maintaining confidentiality
2. Public interest in requiring disclosure related
to crime

13. THE CONCEPT OF
“PUBLIC INTEREST”
public interest holds the confidence is to
be maintained and protected by law
rather than be broken without good
cause. Public interest is a conception of
what is for the public good.

14. 1. PUBLIC INTEREST IN
MAINTAINING CONFIDENTIALITY
1. Statutory protection of
confidentiality
2. Confidentiality required by contract

15. 2.. STATUTORY PROTECTION
OF CONFIDENTIALITY
The legal basis will confidentiality is based
on:
1. Common law: imposes a duty to maintain
confidences where reasonable person or to
know that information should be confidential
2. Statutory legislation: data protection act,
human rights act.
3. Contracts between therapist and client

16. 3. PUBLIC INTEREST IN REQUIRING DISCLOSURE RELATED TO CRIME
1. Terrorist offences
2. Suspected child abuse
3. Serious crime
4. Multidisciplinary teams
5. Duty to warn

17. 3.1.TERRORIST OFFENCES
1. Terrorism act 2000 makes it a criminal
offence if a person to fail to disclose any
information that may prevent a person
carrying out an act of terrorism or bringing
a terrorist to justice in the UK.
2. There is a further offence of “tipping off”
making disclosures to another person to
prejudice a terrorist investigation

18. 3.2. SUSPECTED CHILD ABUSE
1. A child is defined as a person under the age of 18
2. The children’s act 1989, 2004 places a statutory duty
on health, education and other services to co-operate
with local authorities in child protection
3. There are no clear guidelines on the reporting of
suspected abuse by individual therapists.
4. There may be requirements from their works were
particular agency that would require them to report
abuse
5. There is no legal obligation to report abuse
6. What factors would you take into account in deciding
whether to report a child abuse or not?

19. BACP AND CHILD ABUSE
1. The former guidelines have now been revised,
given that the legal context of child protection has
been substantially changed with the introduction
of the Children Act 2004, related legislation and
statutory guidance.
2. The legal framework of child protection, set up by
the Children Act 19894; following on from the
Green Paper, Every Child Matters (HMG, 2003) the
Children Act 2004 has replaced Area Child
Protection Committees with statutory Local
Safeguarding Children Boards

20. BACP AND CHILD ABUSE
1. DoH (2003: 5) emphasises the need forall practitioners
working with children and families to
2. “…refer any concerns about child abuse or
neglect to social services or the police”.
3. While acknowledging a potential duty of confidence towards
the child, this may be over-ridden “(w)here there is a clear
risk of significant harm to a child, or serious harm to adults,
the public interest test will almost certainly be
satisfied” (HMG, 2006: 80).

21. BACP AND CHILD ABUSE
1. Schools and FE Colleges are bound by statutory
duties under public law, such as the Education Act
2002, that requires them to report abuse.
2. They are also liable under private law, via legal
action for negligence, for breach of their duty of
care to individual pupils and students.
3. Counsellors working with young people may
experience concerns about whether a failure to act
on, or report, a perceived risk of harm to a young
person may place the counsellor concerned at risk
of being sued for breach of duty of care.

22. BACP AND CHILD ABUSE
1. Managers may also frame their assumed legal
responsibilities for reporting child abuse, illegal
drug use, suicidal ideation or substantial self-harm,
in terms of the school or college being ‘in
loco parentis’, thus carrying a substantial
responsibility to avoid foreseeable harm to pupils
and students.
2. However, the relevant standard for employers and
staff exercising their duty of care under common
law is simply to take ‘reasonable care’.

23. BACP AND CHILD ABUSE
1. Counsellors need to be able to justify any action in reporting
pupils or students to the authorities in ethical, therapeutic
and professional terms, rather than taking action solely or
largely to reduce the potential liability of the employer under
private law.
2. Reporting risky behaviour by pupils and students, without
client consent, conflicts with the young person’s right to
confidentiality, and needs to be justified by clearly being in
the public interest and in the interests of the client as well.
3. While guidance acknowledges a potential duty of confidence
towards the child, this may be over-ridden “(w)here there is
a clear risk of significant harm to a child, or serious harm to
adults, the public interest test will almost certainly be
satisfied” (HMG, 2006: 80).

24. BACP AND CHILD ABUSE
1. Under s.47 of the Children Act 1989, the local authority has a
statutory duty to investigate situations where a child under
18 is suffering, or is likely to suffer ‘significant harm’,
whether physical or psychological in nature.
2. There is no general legal duty on citizens(or on counsellors
as such) to report suspected child abuse.
3. However, any person may report child abuse ‘in good faith’,
in the public interest.
4. Reporting may also be done anonymously, to social
services, or a specialist agency, such as the National
Society for the Prevention of Cruelty to Children (NSPCC),
which has a recognised statutory role and legal authority in
this field.

25. 3.3. SERIOUS CRIME
1. The prevention and detection of serious crime.
2. It is defensible to beach confidence in good faith to prevent
crime.
3. There is no duty to report crime generally
4. There is no general obligation to answer police questions
about client
5. However drug trafficking act 1994, proceeds of crime act
2002, money laundering regulations 2007, require the
reporting of any crime related to these.

26. 3.4. MULTIDISCIPLINARY
SETTINGS
1. Statutory agencies work on the basis of team
confidentiality mean a kind information may be
shared the clinical team where necessary.
2. Agencies will expect members to pass on
information concerning risk to the client or others
or suspected child abuse.
3. It is also expected that the therapist recognised
report signs of of a client’s deteriorating mental
health

27. 3.5. DUTY TO WARN THIRD
PARTIES: TARASOFF CASE
1. The duty to warn does not extend to the UK.
2. This is a USA case extending the legal liability of
therapists for client’s actions requiring a therapist to
break confidentiality and warned another person
where there was a serious threat of physical violence
against an identified victim.
3. In the UK breaking confidentiality in public interest
would be an acceptable defence and that it was done
in good faith.
4. In the UK knowledge of the mental health act and
referral processes is required to refer when people
are at risk.

28. DUTY TO WARN: HOW TO JUDGE?
1. At what point would you
act?
2. On what basis would you
act?
3. What legal and ethical
reasons would you use?

29. 1. Core Reading:
2. Mitchels, B. & Bond, T (2008) Chapter 1 recording
confidences – walking the tightrope.
3. Chapter 2 right to confidentiality – the clients perspective
4. chapter 3 confidentiality as a legal responsibility –
obligations of the therapist
5. chapter 4 responding to dilemmas over confidentiality
6. chapter 5 confidentiality in supervision, training, research
and audit.
7. Jenkins (2002) Chapter 1 - Confidentiality: A Case Study
8. Jenkins (2007) 5 - Confidentiality, Privilege and the Public
Interest
KEY READINGS

30. Advanced reading
READINGS
1. Tribe, R. & Morrissey, J (editors) (2005) chapter 6
client confidentiality and data protection by Peter
Jenkins
2. chapter 10 referrals: clinical considerations and
responsibilities by Rebecca Haworth and Tim
Gallagher
3. Bond, T. (2010) chapter 10 confidentiality
4. Jenkins (2002) Chapter 10 - The Law of Confidentiality
- A Solution or Part of the Problem?