Eye on Ethics

The Complexities of Client Privacy, Confidentiality, and Privileged Communication
By Frederic G. Reamer, PhD
February 2016

Melanie G. was a clinical social worker at a mental health center that serves adolescents. Melanie's client, Tanya L., age 17, was referred to the mental health center by her school social worker. Tanya had been struggling with symptoms of depression and anxiety. In addition, Tanya had begun cutting her arms and showing signs of anorexia nervosa. Tanya told Melanie that she was struggling with sexual orientation issues and was worried that her parents would find out that she's a lesbian. According to Tanya, "My parents would freak out if they knew. They raised me to believe that gay people are going to hell." To complicate matters, Tanya's parents filed for divorce and were involved in a protracted and bitterly contested custody dispute over Tanya and her younger brother. The lawyer representing Tanya's father subpoenaed Melanie's clinical record to determine whether the record contained any information that the lawyer might use to advocate on behalf of her client.

Melanie's priority, of course, was to provide Tanya with clinical help, drawing on evidence-based treatment protocols. However, in addition to the daunting clinical challenge, Melanie had to skillfully manage the sensitive information Tanya had shared with her. More specifically, Melanie had to consider ethical standards related to clients' privacy, confidentiality, and privileged communication. These are related, but conceptually distinct, ethics concepts.

Privacy and Confidentiality
Clients have a right to privacy. Once clients such as Tanya decide to share otherwise private information with social workers, practitioners must then apply relevant confidentiality standards. According to the NASW Code of Ethics, "Social workers should respect clients' right to privacy. Social workers should not solicit private information from clients unless it is essential to providing services or conducting social work evaluation or research. Once private information is shared, standards of confidentiality apply" (standard 1.07[a]).

In clinical work especially, social workers have always had a deep-seated respect for their clients' need for confidentiality. The trust between social worker and client, so essential to effective help, typically depends on the worker's assurance of privacy. Clients' willingness to disclose intimate, deeply personal details about their lives is understandably a function of their belief that their social worker will not share this information with others without consent.

But privacy is also relevant in other social work domains. Social work administrators need to understand the limits of confidentiality as they pertain to personnel matters or sharing of information with colleagues in other agencies and organizations (eg, insurance companies, accrediting bodies, utilization review representatives, human services departments, and court and law enforcement officials). Protective service workers need to avoid excessive invasion of privacy while investigating reports of child or elder abuse and neglect. Social workers involved in community organizing need to appreciate the nature of privacy when they meet with local residents who air grievances about public officials. Social workers in social policy positions need to understand the tension between confidentiality rights and local open-meeting statutes, which may allow the public and media to attend sensitive high-level meetings.

The concept of privacy in professional practice to a great extent is rooted in pronouncements by the Pythagoreans in the 4th century B.C.E. and was later incorporated in the Hippocratic oath: "Whatever I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret." The concept of privacy was also an important component of ancient Jewish law, as conveyed in the Talmud. Early English common law also acknowledged the right to privacy associated with the concept of honor among gentlemen.

Clarifying the meaning of and differences between privacyand confidentialityis important. Privacyrefers to the right to noninterference in individuals' thoughts, knowledge, acts, associations, and property. Thus social workers' clients such as Tanya have a right to decide whether to share information about their emotional and behavioral challenges, sexual orientation, religious beliefs, and political ideology. Confidentiality rights arise when individuals entrust others with private information, usually because of a vital need to share it.

Contemporary social workers recognize that confidentiality cannot be absolute; there are many exceptions to clients' confidentiality rights. Widely accepted exceptions related to protection of third parties (for example, mandatory reporting of child or elder abuse or neglect) and clients' threats to harm themselves sometimes require disclosure of confidential information. Hence, clients have a right to relative (vs. absolute) confidentiality. For example, Tanya has a right to privacy with regard to her sexual orientation, but her social worker, Melanie, likely would have a duty to disclose information about serious threats to Tanya's safety and health (for instance, pertaining to her cutting and eating disorder). Over time, most jurisdictions in the United States have recognized legal actions against social workers and other mental health professionals in breach-of-confidence cases.

Privileged Communication
Privileged communication is a narrower concept. To fully understand the limits of privacy and confidentiality, 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. Among professionals, the attorney-client relationship was the first to gain the right of privileged communication. Over time, other groups of professionals, such as social workers, physicians, psychiatrists, psychologists, and clergy, sought legislation to provide them with this right.

Social workers need to understand the distinction between confidentialityand privilege. Confidentialityrefers to the professional norm that information shared by or pertaining to clients will not be shared with third parties unless permitted or required by several narrow exceptions (see Section 1.07 of the NASW Code of Ethics). Privilegerefers to the disclosure of confidential information in court or legal proceedings. Thus, as a social worker, Melanie must respond to the subpoena issued by Tanya's father's attorney, taking into consideration Tanya's legal right to privileged communication. According to the NASW Code of Ethics, "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]).

Privacy, confidentiality, and privileged communication are central to social work practice. It is important for social workers to fully grasp the complex relationships among these core concepts.

— Frederic G. Reamer, PhD, is a professor in the graduate program of the School of Social Work at Rhode Island College. He's the author of many books and articles, and his research has addressed mental health, health care, criminal justice, and professional ethics.