The Limits of Confidentiality
By Frederic G. Reamer, PhD
Social Work Today
April 14, 2002
Ms. N is a clinical social worker in a community mental health center in a major metropolitan area. She specializes in the treatment of school-age children and their families.
Ms. N received a referral in early December from a local grade school. According to the school’s student-assistance counselor, 8-year-old third-grader Lance began the school year in fine fashion—he was conscientious about his assignments, got along well with other children, and behaved well. By mid-November, however, Lance’s teacher grew concerned. She reported that Lance seemed to be despondent, oppositional, and uncooperative with classmates. School personnel were concerned about this noteworthy change in Lance’s overall functioning.
Ms. N completed a comprehensive biopsychosocial assessment and consulted with Lance’s mother (a single parent), teacher, and the student assistance counselor. Ms. N spoke with Lance’s teacher about possible classroom-based interventions (e.g., using positive reinforcers systematically to enhance Lance’s behavior), began individual counseling with him, and met sporadically with his mother.
Over time, Lance’s mother, Ms. R, requested more frequent individual counseling sessions with Ms. N to discuss issues in her own life. Ms. R has found that discussions with Ms. N about family issues are helpful, particularly those regarding Ms. R’s estranged relationship with Lance’s father. Seeking a divorce and sole custody of Lance, Ms. R is working hard to adjust to life in a new community following her separation from Lance’s father.
During one counseling session, Ms. R told Ms. N that she is afraid she is in big trouble: She moved Lance several states away to their current home to get away from Lance’s emotionally abusive father. Since then, Ms. R said, she has been living under an assumed name. Ms. R also reported that she is violating a court order that prohibits her from moving out of state without the court’s permission while her divorce and custody proceedings are pending.
As a social worker, Ms. N now finds herself in the midst of an ethical dilemma. On one hand, Ms. R informed Ms. N that she, the client, is actively violating a court order. In addition, the client disclosed that she has committed a crime in transporting her child across state lines without the father’s consent or the court’s permission. Further, the child’s behavior is deteriorating, perhaps as a result of the difficult transition and disruption in his life.
On the other hand, Ms. R shared all of this information with Ms. N in confidence and was not willing to give Ms. N permission to disclose the information to any outside party. Rather, Ms. R disclosed this information to Ms. N for clinical purposes only. What is Ms. N’s ethical obligation?
Clearly, this case involves conflicting professional duties, primarily the social worker’s obligation to protect client confidentiality, respect client self-determination, uphold the law, and protect minors from harm. As with so many complex ethical dilemmas, thoughtful and principled social workers disagree about the practitioner’s ultimate ethical duty. Some argue that a social worker’s agenda is primarily clinical in nature—that is, the social worker should help the mother understand her predicament, think through her options, and make responsible decisions. Without the mother’s informed consent, the social worker cannot disclose confidential information to any outside party (e.g., police, court, school, or child welfare officials). Other practitioners, however, claim that these circumstances cross the proverbial line—that the social worker cannot shield a client who is actively violating a court order and, in addition, has an ethical duty to disclose confidential information to protect the child from harm.
One of the key issues in this case involves the nature of a client’s right to confidentiality. Contemporary social workers understand that there are exceptions to clients’ confidentiality rights in extraordinary circumstances—for example, when clients threaten to harm themselves or others or abuse or neglect a child or older person. As the National Association of Social Workers’ (NASW) Code of Ethics states: “The general expectation that social workers will keep information confidential does not apply when disclosure is necessary to prevent serious, foreseeable, and imminent harm to a client or other identifiable person” (standard 1.07[c]).
The presumption, of course, is that social workers should always protect client confidentiality, unless there is a compelling reason to do otherwise. The problem in this case is that social workers are likely to disagree about whether or not the circumstances rise to the level required for disclosure of confidential information without client consent. In such instances—in which social workers must make difficult decisions about client confidentiality that may be controversial—practitioners should be sure to take the following steps:
1. Review all relevant standards in the NASW Code of Ethics. In this case, the most relevant standards pertain to client self-determination (section 1.02), informed consent (section 1.03), and privacy and confidentiality (section 1.07). Standards pertaining to conflicts of interest (section 1.06) may be relevant as well in that the social worker is providing services to two people (mother and child) whose interests may conflict. Some might argue that it would have been wise for the social worker to refer the mother to another clinician for individual counseling. As the code states: “Social workers who anticipate a conflict of interest among the individuals receiving services or who anticipate having to perform in potentially conflicting roles [e.g., when a social worker is asked to testify in a child custody dispute or divorce proceedings involving clients] should clarify their role with the parties involved and take appropriate action to minimize any conflict of interest.”
2. Review all relevant laws and regulations. For example, states typically maintain laws and regulations concerning the confidentiality of information related to mental health services and to child abuse and neglect.
3. Obtain legal consultation concerning the implications of applicable regulations and laws, if necessary.
4. Consult with supervisors, administrators, and colleagues. Consultation is an essential component of ethical decision making. Although consultants may provide conflicting advice, this step in the process can provide social workers with valuable information and insights that may not have occurred to them otherwise.
5. Document key decision-making steps. Careful documentation serves to protect all involved parties, particularly if social workers’ decisions are challenged. Social workers who face ethical decisions concerning the limits of client confidentiality must balance several potentially competing agendas. First and foremost, social workers must act in the best interests of their clients. They must comply with strict informed consent guidelines and respect clients’ rights to self-determination and confidentiality. In addition, social workers need to protect third parties who may be at risk, consistent with prevailing ethical and legal standards. Finally, social workers should act in a manner that protects themselves and their employers from the risks of an ethics complaint or lawsuit alleging violation of clients’ rights.
Perhaps the most important lesson learned in recent years is that complex ethical dilemmas—which may generate legitimately differing opinions among practitioners—require careful process in the form of conscientious consultation, supervision, and documentation.
— Frederic G. Reamer, PhD, is a professor in the graduate program
of the School of Social Work, Rhode Island College. He is the author of many books and articles, and his research has addressed mental health, healthcare, criminal justice, and professional ethics.