Privileged Communication vs Confidentiality In Counseling

Professionals in fields such as healthcare, psychology, and social work, along with lawyers who represent or prosecute them, are generally aware of the responsibility to keep information about clients confidential, and to avoid disclosing the contents of privileged communication. However, most tend to use the terms “confidentiality” and “privileged communication” interchangeably, without being aware that there is a subtle distinction between these terms.

This distinction is important, and can have practical implications when professionals are called upon in legal cases involving their clients. The need to preserve confidentiality and privileged communication also has a bearing on professionals’ choice of communications technology. Here’s what healthcare and legal professionals need to know about the distinction between privileged communication vs. confidentiality in counseling, how the need to protect certain information affects communications technology options, and how to go about choosing secure technology tools.

The Duty of Confidentiality in Counseling

Confidentiality(1) in counseling can be defined as the legal and ethical duty counselors have to their clients not to reveal information about them to unauthorized individuals. By the same token, clients have a right to expect their counselors not to disclose information about them without their consent. This right is rooted in clients' fundamental right to personal autonomy and their derived right to privacy. Clients’ right to confidentiality is protected by ethical codes of conduct defined by organizations such as the American Psychological Association, as well as by legal statutes.

Counseling information that is considered confidential falls into two categories:(2)

Contact confidentiality: Counselors are ethically obligated not to disclose the fact that a client is seeing them. However, despite this ethical provision, the law generally does not address this obligation.

Content confidentiality: Counselors are legally obligated not to disclose information discussed during counseling sessions. In contrast to contact confidentiality, this obligation is legal as well as ethical.

Unauthorized disclosures of confidential information are considered contract breaches. Clients may authorize disclosure of confidential information by knowingly and voluntarily waiving their right to confidentiality. There are recognized exceptions which limit the obligation to confidentiality. For instance, counselors may in some circumstances need to disclose information to supervisors and others involved in treating a client, or to parents or guardians of minor clients.

Privileged Communication vs. Confidentiality in Counseling

Whereas confidentiality can be defined in terms of a counselor’s duty not to disclose information about their client, privileged communication in a counseling context can be defined in terms of a client’s privilege not to have their counselor disclose information about them in a legal setting such as a court of law. For instance, the contents of therapy sessions are privileged information that a counselor may generally not disclose in court without permission. As such, privileged communication has a narrower scope than confidentiality, referring specifically to communication protected from unauthorized disclosure in a legal setting.

As with the right to confidentiality, the right to privileged communication admits certain exceptions. For example, if a counselor suspects their client is sexually abusing a minor, or that a minor client is being abused by an adult, they are obligated to report this to the appropriate authorities. Other exceptions can include threats to the health and safety of the client or others, knowledge that the client is planning to commit a crime, or the death of a client. The right to privileged communication can also be waived if a client brings a suit alleging emotional damage or malpractice against a counselor, in custody suits, or in group counseling sessions where third parties are present.

How Communications Technology Impacts Confidentiality and Privileged Communication

The responsibility of professionals to protect client confidentiality and privileged communication has a direct bearing on what communications technology they use to do business. In particular, hackers present a risk to cloud-based communications tools such as email, texting, chat, Voice over Internet Protocol (VoIP) phone services, unified communications as a service (UCaaS), and contact center as a service (CCaaS). Professionals using these types of services must take adequate security steps to secure them against unauthorized users.

For healthcare professionals and lawyers who handle healthcare information, HIPAA regulations(3) must be considered when using cloud services. Professionals are responsible for choosing service platforms and providers which meet HIPAA standards.

Choosing a Secure Cloud Communications Solution

In order to ensure that your cloud communications platform provides adequate protection for confidential and privileged information, it’s essential to do due diligence by asking potential providers key questions about their security policies and HIPAA compliance:(4)

  • What are their guaranteed standards for security and compliance?
  • Do they deploy encryption technology to protect data in storage and data in transit?
  • Are they HIPAA compliant?
  • Are any contractors they use HIPAA compliant?
  • Is their HIPAA compliance certified by third parties?
  • Can they provide a written HIPAA Business Associate Agreement (BAA)?
  • Can they recommend configurations to help you meet HIPAA compliance?

Asking these types of questions can help ensure that your clients’ confidential and privileged communication stays secure, keeping you safe from liability.

Conclusion

In order for professionals to adequately protect confidential and privileged communication, it’s vital to choose the right communications technology, especially when selecting cloud-based solutions. When it comes to ensuring legal communication, 8x8 provides reliable and compliant cloud solutions at a demanding level rarely seen by other cloud providers. Don't take your chances with a subpar cloud-based telecom system. Call 1-866-879-8647 or fill out an online form to request a no-obligation quote from an 8x8 product specialist.

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