Confidentiality - the limits on what you can expect in counselling


2 May 2014 |  for clients | by Bill, writer at UK & Ireland Counsellor Directory


Counsellors treat client dislosures as confidential, but they can’t promise complete confidentiality in all circumstances

When a counsellor makes a contract with the client, there are normally three exceptions to the provision of confidentiality, in the following circumstances:

  • If required to by law
  • In relation to their own supervision
  • Where there is a risk of harm to self or others

For practitioners in an agency setting, there may be further restrictions placed on them by the agency, such as the submission of case notes to the agency.

Where a therapist is working towards accreditation or further qualifications, they may also contract with you for exceptions related to the requirements of professional development or accreditation (such as submitting case studies).

Supervision

Where the counsellor has supervision in a group, they may word their contract so that the disclosure is not restricted to their supervisor only, but also fellow members of their supervision group. For example:

“As a professional counsellor I undertake counselling supervision, which involves regularly reviewing my work with other professionals. The focus of supervision is on ensuring best practice in how I work as a counsellor, and where it does touch on details of our work together, I will preserve your anonymity. Any discussions in supervision are likewise treated as confidential.”

Counsellors whose supervision is done online (across the internet) should also contract with their clients to allow them to do this. Using online technologies to communicate remotely means agreeing with your service-provider, and with whoever provides the software to link up (such as Skype), that you will allow their staff access to the content of your sessions. However safe a counsellor feels this is, entrusting client information to a third party who delivers it and who has the right to review it, means they must contract explicitly with the client for permission to do this, and should explain in the process the risks related to client case information being accessible by external parties.

Professional Requirements

As a counsellor-in-training, and possibly later for accreditation with BACP or a similar body, counsellors may need to write a case study or essay, or make a case presentation, that refers to their client work. For example, they might use the following contract wording:

“From time to time I may also be required to make presentations or submissions related to the assessment of my practice, for accreditation purposes or in relation to further qualifications. In this case, any references that touch on our work together will also be treated as both confidential and anonymous.”

The Law

Confidentiality is legally governed by:

  • The counsellor’s duty of confidence to their client
  • Public interest issues (eg. terrorism, serious crime or child abuse)
  • The needs of the justice system (eg. a court order or warrant)
  • The rights of their client under the Data Protection Act 1998

A public interest defence to disclosure might be such as serious crime, threat of harm to a third party, or child abuse. Public interest defences are a justification in law for counsellor disclosure, but are not in themselves a legal obligation.

Compulsory disclosure under the needs of the justice system could include requirements such as the reporting of drug trafficking (Drug Trafficking Act 1994); money laundering (Proceedings of Crime Act 2002), or terrorist activity (Terrorism Act 2000). In some of these circumstances, the counsellor has a legal obligation to report without telling their client.

Other legal circumstances may require disclosure, but the counsellor is at liberty to let their client know, for example, practitioners working in public bodies are obliged to disclose child protection issues (Children Act 1989; Children Act 2004).

Record Keeping and Disclosure

The Data Protection Act 1998 gives each client certain rights of access to records. However, the Act doesn’t apply to manual or handwritten unsorted files which do not provide ready access to individual data, and which are held by a private practitioner or private agency.

If counsellor records contain letters from third parties, such as a GP referral record, they may need the permission of those people before giving access to their client.

As a rule of thumb, when a counsellor writes any client notes it is worth their considering whether:

(a) they would feel comfortable disclosing their notes to their client
(b) they would feel okay about their notes being used in court

When recording details of their work with their client, counsellors should consider the possibility that their client or others might see their notes. Quoting the client’s words, for example, might be all the counsellor needs to put on record for their own purposes – writing “feeling very low” in quotes, for example evidences only that the client said (or quoted) those words about someone, whereas “The client appeared depressed” could be seen to create a professional opinion which may be used in ways that neither the counsellor nor the client intended.

Using words or phrases may be all the counsellor needs as a memory-jogger about the client’s story (for example “mother-birthday-airport” might be all they need to remember a whole story, without a third party knowing what they meant by writing that. Where a counsellor work in an agency that requires sharing of records in a team, this level of obscurity may not be appropriate.

Time Limits for Retaining Records

There is no set limit on this, but therapists should keep their client notes no longer than necessary. This could relate to the limits for:

  • 3 years from when the person could reasonably have known, for personal injury complaints
  • 6 years for breach of contract
  • 3 year for a complaint to BACP

Complaints by clients to BACP should normally be made within three years of the ending of the professional relationship; or within three years of the date when the complainant reasonably became aware of the alleged professional misconduct. For serious offences, there is a separate procedure for which BACP may waive this restriction on timescale.

If a counsellor destroys their records to prevent them being disclosed to the court, they may be found in contempt of court.

Is anonymisation the same as non-disclosure?

Sometimes counsellors present client material outside the bounds of agreed confidentiality, for example to write an article or present a conference paper, claiming that anonymisation of the presented material maintains confidentiality. However, this may be ethically dubious without client consent.

In general, there is no way to completely ensure that “anonymised” material can’t be identified as one or other of your clients. So even if presenting case material as if it were fictional or hypothetical, the practitioner should ask themselves “would the client (or someone close to them) be able to guess that this was them”. Unless the material is indeed fictional, the answer may well be “yes”, and practitioners can find themselves sanctioned or sued if the client even suspects (rightly) that their “anonymised” case is being publicised without their consent.

If you decide to discuss cases outside the bounds of confidentiality, it’s prudent to use fictionalised material, and to make clear that it’s not a real client’s case, or, if only anonymised or disguised by minor alterations, to make sure you have informed consent from the client.

Information in this article is believed to be accurate and up-to-date at the time of writing but does not constitute legal advice.


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