Protecting Privileged Information
Juanita was a social worker in a family services agency where she provided counseling to individuals and couples. One client was Amanda, aged 42, who was divorcing her husband, Peter. The couple was also in a bitter custody dispute involving their two children. Several of Juanita’s counseling sessions with Amanda included the two children, who discussed issues involving their relationship with their father.
One day, Juanita received a subpoena from Peter’s lawyer. The subpoena informed Juanita that she was to appear in court two weeks later to testify about her clinical relationship with Amanda and the children. The subpoena also instructed Juanita to disclose her clinical notes. Juanita was unsure about how to protect her clients’ confidentiality in the face of the subpoena, especially since Amanda was not willing to consent to the disclosure because of her concern that Peter’s lawyer would use the information against her.
This is a common predicament in clinical social work. It is not unusual for practitioners to receive subpoenas instructing them to disclose information that their clients want to be kept private. To understand their ethical obligations, social workers must be familiar with the doctrine of privileged communication. The right of privileged communication—which assumes that a professional cannot disclose confidential information without the client’s consent—originated in British common law, under which no “gentleman” could be required to testify against another individual in court. The attorney-client privilege was the first professional relationship to gain the right of privileged communication. Over time, other groups of professionals sought legislation to provide them with this right. Many states, though not all, now extend the right of privileged communication to clinical social workers’ clients.
It is important for social workers to understand the distinction between confidentiality and privileged communication. Confidentiality refers to the professional norm that information offered by or pertaining to clients will not be shared with third parties. Privilege refers to the disclosure of confidential information in court or during other legal proceedings. Courts commonly cite the following four conditions that must be satisfied for information to be considered privileged:
• The parties involved in the conversation assumed that it was confidential.
• Confidentiality is an important element in the relationship.
• The broader community recognizes the importance of this relationship.
• The harm caused by disclosure of the confidential information would outweigh the benefits of disclosure during legal proceedings.
A significant court decision for social workers concerning privileged communications was the landmark case of Jaffe v. Redmond (1996) in which the U.S. Supreme Court ruled that the clients of clinical social workers have the right to privileged communication in federal courts. In this case, a police officer sought counseling from a social worker after the officer killed a man involved in a fight. The social worker objected to a court order to disclose clinical notes she made during counseling sessions with the officer, arguing that the psychotherapist-client privilege protected the contents of the conversation. In its decision, the Supreme Court concluded that participants in therapy must be able to predict with some degree of certainty whether particular discussions will be protected.
In various rulings, courts have identified numerous exceptions to the client’s right of privileged communication. A number of these exceptions pertain to judicial proceedings, such as when a client introduces information in court that he or she received counseling for emotional problems resulting from a workplace accident that has led to a lawsuit for damages, or when a social worker’s testimony about a client is required so that the social worker can defend himself or herself against a lawsuit filed by the client.
Disclosure of privileged information may also be permissible when a client threatens to commit suicide, shares information in the presence of a third party, is a minor and the subject of a custody dispute, is involved in criminal activity, has been abused or neglected, is impaired and may pose a threat to the public (e.g., an impaired bus driver or airline pilot), has not paid his or her fees and a collection agency is retained, or threatens to injure a third party. Whether a social worker must disclose privileged information without a client’s consent is often a matter of dispute and subject to relevant statutes, regulations, and judicial opinion.
If the social workers practice in a state granting the right of privileged communication to their clients, avoiding compliance with a subpoena may be easier because the legislature has acknowledged the importance of the privilege. Also, contrary to many social workers’ understanding, a legitimate response to a subpoena is to argue that the requested information should not be disclosed or can be obtained from some other source. A subpoena itself does not require a social worker to disclose information. Instead, a subpoena is essentially a request for information, and it may be without merit.
Resisting disclosure of privileged information is appropriate. As the National Association of Social Workers’ Code of Ethics states: Social workers should protect the confidentiality of clients during legal proceedings to the extent permitted by law. When a court of law or other legally authorized body orders social workers to disclose confidential or privileged information without a client’s consent and such disclosure could cause harm to the client, social workers should request that the court withdraw the order or limit the order as narrowly as possible or maintain the records under seal, unavailable for public inspection. (standard 1.07[j])
Social workers can use several strategies to protect clients’ confidentiality during legal proceedings. If social workers believe a subpoena is unwarranted or without merit, they can arrange for a lawyer—often the client’s lawyer—to file a motion asking the court to rule that the request is inappropriate. In addition, social workers, perhaps through a lawyer, may request that a judge review clinical notes and records in chambers to protect confidentiality and then rule on whether the information should be revealed in open court and made a matter of public record. A judge may issue a protective order explicitly limiting the disclosure of specific privileged information to certain portions of a social worker’s clinical notes or certain aspects of his or her interpersonal communications.
Social workers are instinctively inclined to protect clients’ confidentiality. Clients’ legal right to privileged communication strengthens social workers’ ability to protect clients. To fulfill their ethical duty, social workers should be familiar with the concept of privileged communication, practical steps they can take to protect clients, and exceptions to clients’ right to privileged information.
— 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.