What is a Confidentiality Agreement?
Confidentiality Agreement Counseling is a term I use for counseling an individual on pre-existing confidentiality agreements, or drafting a new one for an individual. A confidentiality agreement, in the lay public’s language, is often called a "non-disclosure agreement." These are important documents to protect your rights in your new, or current job. I have seen too many CEO’s, multi-million dollar sales staff, and hourly employees, not know the ramifications of their confidentiality agreements. You are often sharing valuable business secrets to someone you barely know. Do not share things casually "over drinks". Know what you have agreed to.
So what is a Confidentiality Agreement (CA)? It is a one-sided agreement wherein one employee shares their intellectual property (IP) confidential information (CI) to another employee, friend or colleague for a very specific purpose. The CA has several elements: that you have to get the information back, that it is confidential, and that both of you will not tell anyone what you learned. However, the user of the information may do anything with the information, except for using it against the speaker. This type of agreement is used for many industries. In fact , Apple just recently announced they are trying to force an 18 year old to reveal the sources of his leaks about the I-Phone 5, which he leaked on his website and to a magazine. Apple wants the list of Apple employees that have talked to him (many employees have contacted him about his leaks), and information he has received about them. Apple is also suing him for infringing on their trademarks with his website. The point of the Apple lawsuit is that Apple has not secured the information the 18 year old has, in violation of the CA.
Another element of a CA could be that the recipient of the information cannot hire the provider of the information, for a period of time. This is often called a non-poaching provision. There are other remedies under Confidentiality Agreements, depending upon the facts of the Agreement and your relationship. The remedies under a CA could be, among others, a lawsuit for damages or injunctive relief. Sometimes companies will fire someone for violating the CA, but this is more rare.
You should contact me to review your Confidentiality Agreements. If you are an executive, with a lot of educated contacts in your field, we can negotiate special terms for you, upon your leaving the company, such as: non-compete clauses. So definitely, "reach out to me" for a consultation.
Counseling Confidentiality Agreement (CCA)
Expertise
Attorneys must understand how the law views counseling confidentiality, when such confidentiality still exists, how it is dispelled, and special counseling considerations in the use of confidentiality agreements. Confidentiality is central to the practice of counseling. Confidentiality "governs the relationship between counselor and client and need not be stressed in every situation" (Walfish, McDaniel, & O’Reilly, 2011, p. 133). When counseling relationships are undertaken, confidentiality is central to those relationships. However, rules concerning confidentiality vary from state to state.
Confidentiality as Confidentiality
When confidentiality is intentionally entered into, no matter the state law, the confidentiality agreement itself controls. This is true unless the counseling parties have decided to agree to terms that are in conflict with state law. A common example of this involves counseling minors under the age of consent where the counseling relationship itself is intended to be confidential – as with peer counseling at a high school – but the minor gets pregnant or undergoes an abortion. In many states, the statutory requirement that sex with a minor constitutes a crime triggers the disclosure of the minor’s pregnancy or abortion, even though the counseling relationship was intended to be confidential (although there are some exceptions). However, the general rule is that confidentiality must be strenuously observed. As the Washington Administrative Court has noted:
The duty of the counselor to protect the confidentiality of counseling records springs not only from a legal or ethical obligation, but it also derives from client trust and the counselor’s moral duty to respect the privacy of his or her clients (Whelpdale v. Michigan, 2012).
Confidentiality Under the Law
Further, due to the importance of confidentiality to the counseling profession, some states require "informed consent" regarding confidentiality. Under informed consent, the focus is on the client’s understanding the obligations under confidentiality laws, which then may be the subject of the client’s waiver of relevant information that otherwise triggers the expectation of confidentiality. Informed consent requires that the client agrees with the limits of confidentiality based on what the counselor tells them about the limits. Likewise, informed consent requires the consent to be consistent with the client’s ability to understand the limits of confidentiality. In other words, a waiver must be based on the client’s understanding that the limitations exist, and the client must have the ability to understand the limits.
Conclusion
There are many contexts where confidentiality is consistent with the practice of counseling, and several others where confidentiality is not. Regardless of the context, a comprehensive understanding of confidentiality in the counseling context is vital to counseling practitioners’ success. While many providers will base their confidentiality relationships on the specific requirements of their state law, often true confidentiality must be the subject of a waiver by the client, or otherwise consistent with informed consent.
Counseling Confidentiality Agreement Points
A counseling confidentiality agreement is a mutual understanding between a counselor and their client, highlighting the limitations and exceptions to confidentiality. It strictly delineates the boundaries under which a counselor can share information with other professionals or organizations, even after the professional-client relationship has ended.
The scope of a counseling confidentiality agreement generally includes three [3] components:
Depending on how it is worded, these two sub-sections may be separate, or they may be consolidated into one. If they are separate, the most important distinction between the two is that the former will apply after the client stops being actively counselled, while the latter is more immediate. The duration of the confidentiality agreement depends on the type of relationship the client had with the counselor prior to seeking out their services, i.e. an existing relationship, or a new one.
If managed carefully, the limitations and exceptions to the confidentiality rules for counselors usually reduce to four [4] points:
A counseling confidentiality agreement needs to clearly lay out the aforementioned four [4] points. However, how and when these exceptions to confidentiality are applied is highly contextual, and sometimes confusing. Here’s a brief look at each:
Duty to Warn: Duty to warn states that a counselor is obligated by law to disclose confidential information if they believe that their client may be a risk to himself or others. It can also apply in the case of abuse and neglect, grave disabilities, or court ordered testimony.
Consent: For a client to address their mental health situation in therapy, a counselor is required to use their professional judgment and decide whether or not to disclose confidential information to other professionals or third parties. This is primarily for the protection of the client, but it can also apply regarding the privacy laws to VPPA (Violence Protection Act). If a client decides to drop charges against their attacker, their therapist can’t use that information in their testimony.
Health Insurance: health insurance can sometimes interfere with confidentiality, as health insurance providers are allowed to access client files with their clients’ informed consent.
Criminal activity: if a client visits a therapist after engaging in criminal activity, the therapist may be required to break confidentiality for the health and safety of their clients.
Legal Implications and Things to Consider
When one or both parties work in an environment, industry, or sector that has specific laws governing confidentiality – such as the healthcare sector, where the Health Insurance Portability and Accountability Act of 1996 (HIPAA) applies – this must be taken into account when a couple is counseled on a confidentiality agreement. However, even in the absence of specific legal requirements related to confidentiality, very often there are state laws that affect confidentiality with respect to mental health counseling and the law. If a counseling relationship is governed by a confidentiality agreement, this makes it much more difficult for one party to breach said agreement. Doing so has the potential to carry with it specific legal consequences, which may include loss of health care licensing if the breach of confidentiality deals with confidential health information protected under HIPAA. In addition, the counselor may be obligated by law to report the incident to the licensing board, which may have specific sanctions that it can impose on the practicing counselor. In some cases, this may mean revoking confidentiality as a general rule, but in other circumstances, a counselor might be obliged by law to report the incident to the police if a threat is made against another person or group of people and it seems reasonable to indicate that the threat could be credible. In those instances, the counselor has an obligation to report the concern to the authorities. Maintaining confidentiality while also being obligated by law to report some incidents to the police may be difficult, but the role of the counselor is to determine which applies in the given situation and act in accordance with any applicable state laws. The point here is that there are limits to confidentiality and the role of the counselor is to adhere to the law and also protect the interests of the patient.
How To Execute a Confidentiality Agreement in the Counseling Office
When it comes to implementing a confidentiality agreement into your practice, it’s most important to first address the purpose of the confidentiality agreement and whether an attorney is needed to draft such a document. An attorney can work with you to create a confidentiality agreement that meets your particular needs and provides the requisite coverage to ensure that confidentiality is enforced in your practice. It may be a smart business decision to be represented by an attorney, especially if you have a large client base. As a practical step when drafting a confidentiality agreement, it’s best to work with an attorney who has experience dealing with confidentiality agreements and confidentiality laws. They understand the intricate details that are critical to keep in mind and can guide you to ensure your agreement will protect you, your practice and your clients. A confidentiality agreement should include at least the following: 1. An enforceable definition of confidential information that will be protected under the agreement. 2. Permission for the counselor to share confidential information necessary to carry out professional duties. 3. An enforceable restriction on sharing confidential information, in line with Federal and state confidentiality guidelines, protocols for consent, the counselor’s legal duty to report suspected abuse of children or vulnerable adults and other exceptions . 4. A provision recognizing that in some cases the counselor may be required by law or court order to provide confidential information to others. 5. The steps the counselor will take if he/she is ordered to release confidential information to a third party. 6. A statement clarifying to whom confidential information will be disclosed. 7. The time period in which the confidentiality agreement will be in effect. 8. An explanation of what happens to the confidential information once the counselor no longer has a duty to maintain control over the information. 9. The provisions by which the counselor may retain copies of confidential information. 10. A clause addressing the mediator’s right to disclose confidential information to other mediators who need access to the information. 11. A clause allowing the counselor to hire an attorney should the counselor be sued in association with the confidential information. 12. The types of damages for which the counselor may be liable as a result of any breach of the confidentiality agreement. 13. An allocation of the attorneys’ fees the client may be responsible for should a breach occur. Although many confidentiality agreement requirements can be cited in Federal law under the HIPAA Privacy Rule, there are also specific provisions under your state’s law that must be identified and addressed and may require legal assistance.
Common Problems and Solutions
As with any relationship, confidentiality agreement counseling may present unique challenges to the parties involved. Especially when such counseling occurs with different counselors or across state lines via tele-therapy, issues may arise from the peripheral and independent judgment of seemingly unconnected parties. Such issues may include the following:
(a) All parties to the counseling agreement must understand that there is no attorney-client privilege in a counseling session.
(b) The counselor should proactively discuss expectations for the use of the confidentiality agreement with the client, including the acknowledgment of the rate at which a new client will be retained.
(c) The initial reporting requirements for the aforementioned issues should be clearly outlined.
(d) Parties should promptly address non-compliance and breach issues without claiming a lack of knowledge of the regulations currently in place.
Confidentiality and Privileged
Confidentiality and privileged communication are often used interchangeably in the context of Confidentiality Agreement Counseling, but there are critical differences between the two concepts that merit attention. Confidentiality refers to a mutual agreement between the client and the counselor regarding private information that passes between them. Privileged communication refers to the legal protections that apply to that shared information in a specific context, such as law, counseling, medicine, or clergy.
In general, confidential communications cannot be disclosed publicly, without the consent of the client. Confidential communication provides a personal child safeguard, and is therefore not legally protected by statute, although any references to confidential communication in a legally binding contract, such as a Confidentiality Agreement, is legally protected.
Privileged communication, on the other hand, is legally protected by statute, and confidential information passed between the client and the counselor is generally protected from disclosure to third parties, such as a civil court or a pending criminal investigation, whereby the client acknowledges the value of that privileged confidential information. In legal disputes, these communications — unless waived — fall under the category of privileged information, and are protected from disclosure.
The counselor’s ethical and legal duty to maintain confidentiality protects all information gathered, shared, or transmitted during a session from unauthorized disclosure by the counselor, who is bound to policies and procedures that govern and support client relationships.
Although the client is the owner of information shared with the counselor, access to that information is not appropriate for others, unless the client provides express written consent.
It’s important to note that under Utah statute, privileged communication does not apply in family court situations, and the court may require disclosure of communications if the court determines it is necessary to give testimony about confidential matters.
In addition, the counselor does not hold privileged information absolutely. There are certain statutory exceptions, such as instances where the information addresses issues of national security, or when disclosure of confidential communications is necessary to protect the safety of an identified victim.
Counselors must disclose instances where suicide, child abuse, elder abuse, vehicular homicide, assault, neglect, and other acts that put others in harm’s way are going to occur. In these cases, the counselor will report the individually identifiable information to the proper law enforcement representatives.
Counselors must also protect clients in cases where the counselor has reasonable cause to believe that a client is an imminent threat to cause serious bodily injury to another person or group, and the counselor takes reasonable, necessary, and available steps through an intervention to prevent the client from carrying out that act. Viable steps and interventions a counselor may take on behalf of the client include contacting law enforcement, contacting the potential victim, intervening to the best of their ability, and taking any other necessary steps to protect the victim.
The Future of Counseling Confidentiality Agreements
The world of counseling is also evolving, and with it the importance of confidentiality. As digital counseling and teletherapy become more mainstream, the implications for confidentiality are only beginning to be understood. In the near future, many legal questions might need to be addressed, such as: The development of websites promising safe and anonymous communication between clients and their online counselors, while inexpensive, may be at the root of many associated confidentiality issues . As the world of Counseling continues to evolve, we can expect that new and innovative methods of helping clients will not only be created, but also introduced faster, and increasingly, internationally. The key will be to continue to ethically uphold confidentiality as it might one day be applied in clinical practice. While there are different views on the various methods of counseling, one thing is for sure: confidentiality will be at the forefront of the discussion. It is ethically vital that practicing counselors keep all of these considerations in mind. They should also be prepared to adjust to any legal changes arising from the use of new technologies and methods.