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|Posted on June 27, 2014 at 8:24 AM|
Presentation delivered at the Psychologists Protection Society 40th anniversary Symposium on the 27th of June 2014 by Ian Gilman-Smith
The speaker is a psychotherapist and social worker with experience as an expert witness. He is involved in the process of making a decision in the case of someone who lacks legal capacity
Do’s and don’t’s of confidentiality
- There is no neat script that can be handed out to assist us in dealing with professional issues around confidentiality
- There are different issues to a degree depending of context: private practice, organisational work
- There is a lot of conflicting information about policies
- The therapeutic relationship is not only with our clients. We don’t work in a vacuum, isolated from the rest of the world.
- Clients come to therapy because they want to, are referred by GP, family members, have been sent by court order,
- Working with multi- or inter-disciplinary teams. Liaising with other members of the client’s professional team
- The backdrop of social-media. The information is shared potentially with the rest of the world.
- Care program approach was developed to support professionals in communicating with each-other (Baby P. was seen by 51 professionals, sex abuse scandals involving celebrities
How do we deal with confidentiality
- A mantra that professionals refer to is “sessions are confidential
- Do we know what we mean when we use the word ‘confidential’? Sometimes we don’t.
- Clients agree to proceed as if statements about confidentiality are the small print on a mortgage contract
- Our intentions are to form a trusting relationship in which they can disclose and find relief from the issues that bring them to therapy
- Are we merely using the term to reassure ourselves and our clients
From a legal perspective confidentiality is highly complex. Legal documents include
- Freedom of Information Act
- Human Rights Act
- Mental Capacity Act
- Access to Medical Reports Act
- Terrorism Act
In our adversarial legal system barristers are not necessarily on the therapist's side. They are highly skilled at understanding the nuances of these different documents.
There is a common law duty to confidentiality
- patient information should only be disclosed with the patient’s consent.
What is it to be reasonable in how we practice
- they judge professionals by the standards of other professionals
- are your actions accepted as common practice?
- Would your peers do the same? On what grounds do you make that judgement?
What is negligence
- the omission to do something which a prudent and reasonable man would do
- clear reporting of risk and risk management
What is a confidential document in the eyes of the law
- English law does not recognise privilege just because a document is considered confidential by a party of another
- Information that could incriminate a third party, diplomatic papers – nothing else is
- Documents cannot be made privileged by simply attaching a label
- One of the roles of the therapist is to hold and make sense of complex information
- Taking the pre-emptive view that we need to be informed about confidentiality and not to do so would be negligent.
- Looking at worse-case scenarios because they help us bring into sharp focus the issues around confidentiality.
Are we exempt from meddling if we work in private practice
- court order to give written evidence as to the course of therapy in county courts, criminal courts, coroner’s courts
- such requests are legally enforceable and they can be enforced by being fined or sent to prison in contempt of court
Thresholds to confidentiality
1. What do I think
- risk-assessment: risk is so easily overlooked.
- Consider a number of domains of risk: not just risk to self or others in broader terms: intentional self harm, unintentional self-harm, risk from others, risk of exploitation from others or society, risk to others, ability to survive (resources and living skills), psychological risk (thinking feeling and behaviour), social risk (problems with activities or in relationship with other people).
- Can public good be achieved by disclosing the risks identified. If there a risk to life of limb – that decision is easier to make
- Client disclosing something of concern such as ‘I can’t go on anymore’
2. What do I do
- if you identify risk but decide not to contact next of kin, GP, emergency services then reason: What did I think of that information? What allowed you to make an informed decision? What was your thinking? Was this the action that would have been taken on the reasonable therapist?
3. What do I write
- struck by the sweeping generalisations that therapists make about their clients i.e.: he drinks “far too much”
- clear documented process helps account for our actions in a courtroom setting
- written records do not need to be voluminous but need to be thorough
- fact finding: the judge wants to know the facts of the case: client presentation, level of risk, historical account, your professional views
- professionals becoming incompetent or highly hostile in court, contradicting themselves
- the private practitioner is far more vulnerable:
- responsibility for: managing the issues of confidentiality pre, during and post therapy
- responsibility for being professional CPD, supervision DBS check, indemnity, CPD, registration with the ICO.
Any risk identified needs to be made explicit in the therapy session
- supporting the client in managing risk themselves
- contacting another agency
- using the resource of the therapy encounter
- what if the client does not support you in contacting the GP
- implications of breaking confidentiality: risk not to uphold the right human rights, risk damaging the therapeutic therapy, right to privacy
- implications of not breaking confidentiality may have severe consequences: fail to protect the rights and freedom of others, minimising harm to vulnerable adults and children
- it is clinician’s responsibility to report abuse of vulnerable adults or children. What is “vulnerable person” (is or may be in need of community services, unable to take care or protect himself against significant harm or exploitation, mental disorder, age)
How do we protect confidentiality?
- Clinicians with widely different views: ‘destroy notes’, or ‘keep no notes’, ‘record everything’, ‘write report as if I was going to be cross-examined’
- Whatever confidentiality goes beyond one’s mind can be requested
- It’s your judgement call how you record and account
- Notes should be accurate, secure, processed in line with client’s rights, kept no longer than necessary
- Complaints can be made within 5 years since the alleged incident. Claims of negligence can be made within 6 years since the alleged incident
- Registering with ICO. Information governance if we keep reports on our computers.
The Institue of Psychiatry
TAG with 6 domains of risk