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Alleged breach of confidentiality

Indemnity Payment: Greater than $25,000
Legal Expenses: Less than $10,000

Note: There were multiple co-defendants in this claim who are not discussed in this scenario. Monetary amounts represent only the payments made on behalf of the counselor. Any amounts paid on behalf of the co-defendants are not available. While there may have been errors/negligent acts on the part of other defendants, the case, comments, and recommendations are limited to the actions of the defendant; the counselor.

The counselor (defendant) began seeing a mother and her two sons for family counseling. The primary focus of the counseling sessions related to the boys’ anger management and anti-social behavior at school and home. While undergoing counseling it was apparent that the children’s anger management and behavioral issues were attributed to their mother’s stress about the father’s (plaintiff) work schedule, alcoholism, and domineering personality. The counselor attempted to advise the couple on parenting techniques while working with the children on following rules and obeying authority figures even though the father only attended one session in six months. The family abruptly stopped attending counseling sessions despite the counselor’s efforts to contact the mother and father. After many unsuccessful attempts to contact the mother and father, the counselor closed the family’s file.

Six months after the file was closed, the counselor received a phone call from the mother wherein she discussed her desire to divorce her husband. She described the husband as an alcoholic, an excessive spender, and being abusive to their sons both verbally and physically. She scheduled a counseling session for the following day and during that session the counselor provided her with the names of divorce attorneys. The counselor agreed to be the mediator during the next counseling session where the wife would serve divorce papers to her husband. At the next counseling session, the wife served the husband with divorce papers and discussed the couple’s financial difficulties. The counselor worked with the couple on how to inform the children about the divorce and how the couple should avoid acting out their frustration near the children.

Approximately one week after the husband was given divorce papers, the couple attended a counseling session where they discussed child custody, living arrangements, and financial difficulties. At this session, the husband appeared intoxicated, smelled of alcohol and acknowledged the need to break away from his domineering ways and be more involved in his sons’ lives. For the next three months, the wife and children continued weekly sessions. The counselor would meet with them both together and separately. The primary focus of the meetings was on the transition to a single-parent household and the difficulties with their new living situation.

During the last counseling session that the husband attended, he appeared extremely intoxicated. The couple had a significant fight in the counselor’s office and the husband stated he was going to make his wife suffer for a very long time. After the husband left the counseling session, the wife stayed behind to discuss her anxiety and the counselor indicated that he was also anxious about the husband’s behavior. The wife and children continued to attend weekly sessions for the next six months until they again abruptly stopped counseling sessions. The only other contact the counselor had with the husband was twice via phone about his failure to pay the counselor’s fees.

One year after the last counseling session with the mother and children, the counselor was contacted by the wife requesting the counselor prepare a letter to the judge involved in her divorce case regarding her husband’s comments and actions during the counseling sessions. The counselor agreed and composed a lengthy letter to the judge detailing the husband’s appearance of intoxication, abusive statements, and threatening behavior during the counseling sessions. In the letter, the counselor recommended limiting the visitation rights of the husband with the children due to his abusive, violent behavior. This disclosure provides the basis for the husband’s claim of breaching his confidentiality afforded to him under the state’s mental health confidentiality statutes.

Defense counsel recommended that this claim be settled due to the violation of the plaintiff’s privacy.

It was the defense counsel’s assessment that there would likely be a plaintiff’s verdict of approximately 90% based in large part upon the clear privacy breach by the counselor to the judge.

Experts assessed the potential exposure/claim value of the case for all defendants (including statutory prejudgment interest) as being between $40,000 and $60,000.

Risk Management Comments
Although the letter from the counselor to the judge states that the wife and children were his past clients, it is clear that the husband also attended counseling sessions, hence, the husband is also covered under confidentiality protection. Although the counselor received appropriate consent from the wife (albeit over the phone) to disclose information gained in therapy to the judge, the counselor received no consent from the husband.

The husband claimed that as a result of the violation of his statutory privacy rights, he suffered public embarrassment (negligent and/or intentional infliction of emotional distress), defamation of his good name and character, and invasion of his privacy.

Risk Management Recommendations
  • Obtain the client’s written and dated authorization for the release of information to named parties - i.e., those with whom the counselor may communicate about treatment-related matters or share client documentation. Renew such authorizations at least annually, and more often, if warranted.
  • Conduct and document a discussion with the client regarding information that may not be protected from release, including that relating to child endangerment/ neglect/abuse, danger to self or others, and court-ordered release of information. Obtain signed statements that the client understands these exceptions to privacy and confidentiality protections.
  • Always consider what information to share, when to share it, how to share it (e.g., written versus spoken, in-person versus telephone or e-mail) and with whom it will be shared, in order to both communicate effectively and protect the client’s privacy.
  • Understand all laws or regulations that govern client interactions. Ignorance of the law, employer policy, or professional ethics does not absolve the counselor of the responsibility to act within established clinical, ethical, and regulatory guidelines.
  • At least annually, review the ACA Code of Ethics, and understand the professional obligation to uphold the code and the steps taken to halt and/or treat the reaction.
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