Cutting a long story short: Reform of witness evidence in the Business & Property Courts
Confidentiality sits at the very heart of an effective therapeutic relationship. The maintenance of trust in the practitioner and in the wider profession requires that anything discussed in sessions, be they group or individual, remains private. What happens when a patient reveals that they are the subject of on-going sexual abuse or that they intend to commit a serious criminal offence? Do you have a legal duty to disclose, what about a ‘professional’ one? We discuss the tension between confidentiality and safeguarding, the law around permitted (and required) disclosures and suggest some practical approaches to dealing with situations such as these.
What is confidentiality?
The duty of confidentiality placed on therapists arises from a variety of obligations imposed by law, derived from acts of parliament, the common law and the European Convention on Human Rights. Confidentiality has been defined by the court (Venables v MGN  1 All ER 908 per Lady Justice Butler Sloss) as “[a]ll information about the [patients]…whether by records or otherwise, which relates to their medical, psychological or therapeutic care is, in principle, confidential. That confidentiality would, in my view, extend to art, or any other form of therapy, and to all those taking part in group therapy, and not only the therapist…”
Disclosing personal information about a client to someone not entitled to it, places you at risk of possible criminal liability (e.g. offences under the Data Protection Act 1998), civil action (for breach of privacy for example) and investigation by your (voluntary) regulator. The reputational risk associated with unlawful breaches may be the most significant impact felt by professionals choosing to tell tales on the patients (even when told with the best of intentions).
A patient’s right to confidentiality is not absolute and there will be circumstances that arise that permit and perhaps even require you to breach confidence and make a disclosure to an appropriate authority, be that the police, social services or a parent, in the case of a child. Therapists should remember that any disclosure in breach of patient confidentiality will only be lawful if it is authorised by the patient or by the law.
Patient consent authorises disclosure
When a patient consents to the release of their notes, or any personal information about them, confidentiality is lifted and disclosures about the patient may be made to the limited extent that has been authorised. The difficulties surrounding the obtaining of informed consent in a therapeutic setting are well documented; care should be taken to ensure the patient has capacity, that they understand the concept and the possible implications of agreeing/refusing consent and that they can weigh the implications of disclosure in the balance to arrive at a choice. Consent should be carefully documented.
Disclosures permitted by law
With perhaps one exception (Under the Terrorism Act 2000 there is a requirement for certain professionals (including therapists) to disclose certain concerns relating to terrorist property), no therapist is required by law to breach confidence and inform the police that their client has committed, or is intending to commit, a criminal offence or that they pose a risk to themselves or others. Any disclosures about a patient made by a therapist without patient consent will be rare. The law does not set out the precise circumstances in which confidentiality may be breached, but the following approach brings together the most up to date judicial and other thinking.
Therapists should satisfy themselves that the release of information to protect the interests of a third party exceptionally prevails both over the duty of confidence owed to the patient and the public interest in a confidential health and social care service. In short, disclosure must be considered essential to protect the patient, protect third parties from the risk of death or serious harm or prevent a crime/civil wrong. The most important considerations for a therapist are likely to be how real and imminent the risk of harm is and whether there is an appropriate person to whom the disclosure can be made who could in turn, avert the harm. Disclosure by a patient of historic sexual abuse is unlikely to fall into the category of discloseable information; a present, real and imminent threat to carry out a fatal shooting may well justify a call to the police.
What you need to do
At the outset of every therapeutic relationship it should be made clear to the patient what the limits of confidentiality are. This will differ from patient to patient and will be very different for children. When confronted with an ethical dilemma, take advice from your supervisor or even a lawyer. If, having worked through the criteria above, you to consider that you can and should make a lawful disclosure, if appropriate, try and seek patient consent. This should be followed by a written explanation as to why you consider that a disclosure is necessary. You may wish to encourage the patient (and/or where appropriate, their legal representative) to inform the relevant authority themselves, this may preserve the professional relationship. If however the patient declines, you should inform them that you will disclose in any event. When you speak to the appropriate person in authority, disclose no more than absolutely necessary to protect from the risk of imminent harm. Finally, record your reasons.
This is not an easy area. Patients expect full confidence but therapists cannot hold this line where life and limb are at risk. Think carefully, take advice and record your reasons.
For further informaiton, please visit our Legal Defence for Psychotherapists, Psychoanalysts and Counsellors page, or contact Julie Norris.
First published 16 October 2015.
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