What is a counselling confidentiality agreement?
Counselling Confidentiality Agreements are front and centre in the therapeutic relationship. The concept is simple: your therapist will keep what you talk about (and/or write about) confidential as long as it is not a serious threat to you (including suicidal thoughts), or to a child, or to a vulnerable person, or to the public at large. In that case, the therapist is required by the law to report to the appropriate authorities and/or the police.
Confidentiality is very important for developing a good relationship with your therapist, and a good therapeutic outcome. It can force difficult conversations to happen, and ensure they are dealt with honestly, in the best interests of the client. Your therapist is also able to give you a full and honest picture of your issues so that an appropriate treatment plan can be devised.
However, confidentiality can also be abused. Sometimes people think it means that whatever happens is never to be discussed again, even if it was a very difficult session that merits further exploration. Sometimes clients reveal very sensitive information about others, for example, about their partners, and then think that these disclosures are exempt from the confidentiality agreement . Quite often, clients just want to keep their sessions within the four walls of the therapist’s office.
For its part, a good therapist also approaches confidentiality carefully. He or she can sometimes feel as if a person’s whole world is crumbling when a certain reality dawns in a counselling session. This can mean they may be tempted to violate confidentiality by providing feedback to other sources without a client’s prior permission.
Many therapists will ask clients to sign a Counselling Confidentiality Agreement at the outset of therapy before any confidential issues are explored. It is up to the client whether he or she wants to proceed. If a client has concerns or feels unsure about signing such a document he or she may choose not to see that particular therapist. That’s OK.
Once that Agreement is signed, a good therapist will ask only those questions that are relevant to the therapeutic process. A therapist knows where the boundaries of confidentiality begin and end, and can work from there in assessing the veracity of information and determining when to involve additional people and/or organizations in the therapeutic process.
A Counselling Confidentiality Agreement is the basis of a good working relationship between a therapist and a client, and needs to be taken seriously.
Confidentiality agreement components
A well-crafted counselling confidentiality agreement should include the following key components that address the concerns both the client and practitioner have:
- Privacy Terms: The Agreement should identify the measures that will be taken to safeguard the confidentiality of the information (i.e., only sharing with the therapist, supervisor, or in writing the client’s consent). It should also explain the technology being used to collect and maintain the information (email, website, data base, etc.). Medical records are maintained for 10 years after the last service date. (For minors, this applies to the minors’ 19th birthday.)
- Exceptions: The Agreement should specify the exceptions to confidentiality including mandated reporting obligations, instances where the client may be at risk of causing harm to himself/herself or others, and conditions involving potential abuse, neglect of children, elders, dependent adults, other vulnerable persons or domestic violence.
- Client Rights: Both the practitioner and the client have important roles in the safeguarding process. The Agreement should clarify a client’s rights such as the ability to request a copy of their record, to receive an accounting of disclosures, and to understand how their information will be used.
Breach of confidentiality legal consequences
Legal Implications of Breaching Counselling Confidentiality Agreements
When breaches of confidentiality occur in counselling relationships, both clients and counsellors may find themselves grappling with complex legal implications. In general, however, it is the counsellor who may stand to face the severest legal ramifications. Depending on the nature of the disclosure and the circumstances surrounding the breach, a client may choose to pursue one or more legal actions against the counsellor, including allegations of professional misconduct, breach of fiduciary duty, non-disclosure, negligence, malpractice, invasion of privacy, and infliction of emotional distress. Client civil suits for damages related to emotional harm include claims for damages to physical health, emotional distress, mental suffering, fraudulent and negligent misrepresentation, intentional and negligent infliction of emotion distress, and breach of fiduciary duty.
However, a client’s ability to successfully sue a counsellor for breach of a confidentiality agreement rests largely upon the buoyancy of evidence. In the thrombosis of Harman v. Secretary of State for the Home Department (No. 2, [1984] 3 W.R. 696), Lord Keith of Kinkelra suggested that the breach of confidentiality occurs only when the document or documents containing confidential information are used to make a judgment in relation to a courtroom hearing. Strong evidence is therefore required to show that this "use" occurred. Courts may also weigh the nature of the information in question heavily when evaluating the appropriateness of legal action for breach of a confidentiality agreement in counselling. For example, based on the precedent of Harper v. Briscoe (1975) 16 O.R. (2d) 541, courts have been hesitant to impose liability on therapists or counselors for negligence in disclosing information about suicide or suicide completion. In cases where the harm complained of by the client involves personal injury to a third party known to the therapist or counselor, the courts have imposed liability under the tort of "misfeasance". In order to successfully sue in such cases, the injured third party must show that the breach of confidentiality caused harm and that serious injury was reasonably foreseeable as a result.
Fiduciary duty encompasses two common law duties: the no-conflict rule and the no-profit rule. While there is no fiduciary duty without a conflict or the opportunity to profit, a breach of fiduciary duty by a professional, such as a therapist or counselor, may give rise to an award of damages. Where the duty is not one that transcends the contractual terms of the agreement, damages will not be awarded for non-pecuniary loss (such as emotional harm) unless compensable under the law of contract. Similarly, the forfeiture of any potential benefit to the fiduciary will not result in an award of money unless compensable under the law of tort. While the courts do not impose a duty of loyalty upon therapists and counselors, they tend to hold them liable for actions or omissions that are not professionally competent as judged by the circumstances.
Confidentiality exception scenarios in counselling
There are a few exceptions to the general rule of confidentiality in counselling. If a mental health professional believes a client poses a risk of harm to self or others, they are required by law to report this to the appropriate authorities. Many jurisdictions have mandatory reporting laws that require mental health professionals to report any suspected child and elder abuse or neglect. If a client discloses information about the commission of a current crime , the counsellor may be obligated to report this to law enforcement. In addition, counsellors may be compelled to produce the progress notes of counselling sessions if they were called as a witness in a court proceeding. Without a properly executed Counselling Confidentiality Agreement, this is especially true when it comes to minor children and at-risk youth.
Advice to clients: what you need to know about your confidentiality rights
Once you’ve signed your confidentiality agreement, you may wonder what you can expect from your counsellor. You are now bound by contract to respect the code of ethics which guides their work, including abiding by laws and regulations relating to the professional responsibilities of counsellors. However, it is also your right to ask your counsellor specific questions pertaining to your rights, including the responsibilities or limitations of your confidentiality agreement. You can ask your therapist: While your therapist is not required to explain every concept in great detail, they are obligated to provide information that both you and they understand completely. If necessary, they will provide all the information you need on their website, in an information sheet, or during your first session to answer your questions. Be sure they do, once your confidentiality agreement is signed you are contracted to uphold the agreement and all the terms within indefinitely.
How to draft a strong confidentiality agreement
When preparing to meet with a new client, a counsellor or therapist should inform the client that it is their policy to keep the client’s personal information confidential. The client should also be made aware of any limits to this confidentiality by outlining whom you are permitted to disclose confidential information to. Confidentiality policies should also be accessible and contained in all other relevant documents, such as on your website, email correspondence and advertising. It is also important to confirm a client’s consent to store (and potentially share) any personal data including any digital correspondence through your database or practice management system. The client should sign any necessary documentation acknowledging they have read and understood your policy and that they consent to this . It is also good practice to remind your clients of their confidentiality rights at the beginning of each session and inform them of any possible breaches.
Confidentiality agreements should contain the following:
• Information relating to how you will gather, use, store and dispose of your clients’ data
• Measures that you are putting in place to protect their data
• The duration that a health record will be kept
• Details about how to make a SAR
• A detailed description of circumstances in which you may have to share information without permission
• Restrictions of your liability towards your clients in the case of an information breach
• A clear statement regarding the consequence if your clients do not consent to your policy
• Any other circumstances needed to comply with your professional code of conduct or practice and data protection laws.