client’s PHI if they believe in good faith that, in the words of the federal law, the disclosure of information “is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public” and “is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.” This concept is referred to as “duty to warn, duty to avert harm, or duty to protect.” According to the NASW Code of Ethics (2021; Standard 1.07[c]), “The general expectation that social workers will keep information confidential does not apply when disclosure is necessary to prevent serious, foreseeable, and imminent harm to a client or others.” However, “in all instances, social workers should disclose the least amount of confidential information necessary to achieve the desired purpose; only information that is directly relevant to the purpose for which the disclosure is made should be revealed.” Social workers may learn information directly or indirectly that they believe warrants further investigation or action and then must decide what action to take in this critical area. The NASW instructs in the Code of Ethics that these decisions should never be made without consultation with the agency supervisor, clinical social worker or colleagues, NASW, state board, and other governing agencies, stressing the urgency in these cases. Under Counselor-Client Relationship, Confidentiality, the American Mental Health Counselors Association Code of Ethics (AMHCA) 2020 revision provides the following information on disclosure of information related to the duty to warn: c. The release of information without consent of the client may only take place under the most extreme circumstances: the protection of life (suicidality or homicidality), child abuse, abuse of persons legally determined as incompetent, and elder abuse. CMHCs
2.1 Disclosing Limits of Confidentiality. Marriage and family therapists disclose to clients and other interested parties at the outset of services the nature of confidentiality and possible limitations of the clients’ right to confidentiality. Therapists review with clients the circumstances where confidential information may be requested and where disclosure of confidential information may be legally required. Circumstances may necessitate repeated disclosures. 2.2 Written Authorization to Release Client Information. Marriage and family therapists do not disclose client confidences except by written authorization or waiver, or where mandated or permitted by law. Verbal authorization will not be sufficient except in emergency situations, unless prohibited by law. When providing couple, family or group treatment, the therapist does not disclose information outside the treatment context without a written authorization from each individual competent to execute a waiver. In the context of couple, family or group treatment, the therapist may not reveal any individual’s confidences to others in the client unit without the prior written permission of that individual. The state of Florida enacted a law that allows social workers to disclose information in accordance with the HHS directive, with some constraints. The Florida statute (s. 491.0147[2]) allows disclosures by clinical social workers to alert a law enforcement agency if: A patient or client has communicated to such person a specific threat to cause serious bodily injury or death to an identified or readily available person, and the person licensed or certified under this chapter makes a clinical judgment that the patient or client has the apparent intent and ability to imminently or immediately carry out such threat (Florida Senate, 2021). The Florida statute (s. 491.0147[1][c]) says the confidentiality between a clinical social worker and client may be waived: When a patient or client has communicated to the person licensed or certified under this chapter a specific threat to cause serious bodily injury or death to an identified or readily available person, and the person licensed or certified under this chapter makes a clinical judgment that the patient or client has the apparent intent and ability to imminently or immediately carry out such threat, and the person licensed or certified under this chapter communicates the information to the potential victim . (Florida Senate, 2021) HIPAA allows for the disclosure of PHI without the client’s authorization or consent in some special circumstances, including payment for health care services, or to law enforcement for the investigation of criminal activity, including abuse that has happened or potentially could happen in the future. The Florida Statutes do not allow disclosure of information as follows: “Except as otherwise provided in this section and in s. 440.13(4)(c), such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient, the patient’s legal representative, or other health care practitioners and providers involved in the patient’s care or treatment, except upon written authorization from the patient.” (Florida Statute 456.057[7] [a]; Florida Senate, 2021). Psychotherapy or case notes can be disclosed, but have some exclusions under HIPAA. Case notes include any notes that social workers take for their own use, rather than standard or general documentation required in all cases. Under HIPAA, these notes require consent or a waiver signed by clients before they can be disclosed.
[clinical mental health counselors] are required to comply with state and federal statutes concerning mandated reporting. CMHCs (and their staff members) do not release information by request unless accompanied by a specific release of information or a valid court order. CMHCs make every attempt to release only the information necessary to comply with the request or valid court order. CMHCs are advised to seek legal advice upon receiving a subpoena in order to respond appropriately.
d.
The American Association for Marriage and Family Therapy (AAMFT) 2015 Code of Ethics update does not specifically address disclosure of confidential information concerning the duty to warn but provides related guidelines. Under the heading of Ethical Decision-Making, the AAMFT Code of Ethics makes clear that the practitioner must adhere to the higher standard when facing all possible ethical dilemmas: B oth law and ethics govern the practice of marriage and family therapy. When making decisions regarding professional behavior, marriage and family therapists must consider the AAMFT Code of Ethics and applicable laws and regulations. If the AAMFT Code of Ethics prescribes a standard higher than that required by law, marriage and family therapists must meet the higher standard of the AAMFT Code of Ethics. Marriage and family therapists comply with the mandates of law, but make known their commitment to the AAMFT Code of Ethics and take steps to resolve the conflict in a responsible manner. The AAMFT supports legal mandates for reporting of alleged unethical conduct. Confidentiality is discussed under Standard II:
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Book Code: SWFL1825
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