This article discusses the evolution of the HIPAA Privacy Rule with a particular focus on confidentiality in the field of mental illness.

· Confidentiality . (2004). In W. E. Craighead, & C. B. Nemeroff (Eds.),  The concise Corsini encyclopedia of psychology and behavioral science (3rd ed.). Wiley.

This chapter addresses the issues around privacy vs confidentiality for the social worker and in other areas of social work.

· Confidentiality and privileged information . (2015). In Reamer, F. G. (2015).  Risk Management in s ocial work:  Preventing professional malpractice, liability, and disciplinary action (Vol. [Updated edition], pp. 23-85). Columbia University Press.

This chapter defines cultural competency and provides excellent examples relative to case management.

· Cultural competency and social work practice . (2018). In Weisman, D., & Zornado, J. L.,  Professional writing for social work practice, Second Edition (Vol. Second edition). Springer Publishing Company.

 

 

Ch. 4 Ethical and Legal Perspectivs

Chapter Introduction

· Chapter Four addresses Social Work Case Management Standard 1, Ethics and Values.

· Chapter Four addresses Human Service–Certified Board Practitioner Competency 1, Ethics in Human Relationships.

I really try to call upon the child to speak about what he or she has been doing. That way I’m not breaking any confidences.

—From Sara Bergeron, 2012, text from unpublished interview. Used with permission .

Effective human services delivery often requires a delicate balance of consideration for the client, the agency for which the case manager works, laws and regulations, court rulings, and professional codes of ethics. At times, these conflicting interests can create crises that require the case manager to make difficult choices.

For each section of the chapter, we explore issues and challenges that case managers are likely to encounter. Focus your reading and study on the following objectives:

Confidentiality

· List reasons why the issue of confidentiality is so difficult.

· Define ways in which managed care and technology have affected confidentiality.

· Describe guidelines for discussing confidentiality with clients.

· Identify guidelines for confidentiality and working with minors.

· Describe guidelines for confidentiality and working with interpreters.

· Identify the ways that technology affects client confidentiality.

Family Disagreements

· Describe what happens when family members disagree about the care of a family member.

· List guidelines to follow to encourage positive participation by families.

Working with Potentially Violent Clients

· Describe why violence is becoming more prevalent in modern society.

· Apply the steps in addressing issues of violence in the workplace to a specific case management situation.

Working in the Managed Care Environment

· Identify two difficult dilemmas case managers encounter working with managed care organizations.

· List three ways that case managers might respond to these situations.

Duty to Warn

· Define the duty to warn.

· Demonstrate how the case manager works with a team on issues involving the duty to warn.

Autonomy

· Describe the difficulties that arise with regard to granting client preferences.

· Explain how guidelines can help a case manager who faces issues of autonomy.

· Describe how case managers can support autonomous end-of-life decisions.

Breaking the Rules

· List the sources of rules and regulations.

· Determine when and how to advocate rather than break a rule.

Legal Responsibilities

· Define standards of care and standards of case management practice.

· Explain the term malpractice.

· Describe case management issues of liability.

4-1 Introduction

Before we discuss each of these issues in more detail, let us read what case managers have to say about their work related to ethical and legal issues.

Most of our clients do not want us to share their information with anyone else. For kids, adults, especially adolescents, it is the first question they ask. “You won’t tell my parents, will you?” There are some things we can keep confidential, but there is lots of information we need to share or report.

—Case manager and counselor, family services, Bronx, NY

What is most difficult for me is giving the client room to make mistakes or to refuse service. I see all of the ways a client’s life could improve “if only.” But if the client doesn’t want to help herself, then we are powerless. Every once in a while I want to push the client harder than I should.

—Case manager, intensive case management, Los Angeles, CA

There are some things that my clients need—services, help—that I am not supposed to do or provide. One day I was visiting a young boy and his mother. He was absent from school. His mother had been beating him before I arrived and she opened the door with a strap in her hand. I told his mom I needed to take him to school. Legally, I am not supposed to transport clients.

—Case manager, school-based intervention services, New York, NY

Families have lots of influence with our clients, even our adult clients. We use groups to help expand client points of view beyond the family stance. Sometimes clients begin to see another perspective when they interact with their peers. They see family as not always having the final say.

—Case manager and counselor, family services and addiction treatment, Knoxville, TN

These quotations reflect some of the tensions that case managers face. The case manager at family services describes the conflicts that arise related to confidentiality. Sometimes client confidentiality can be maintained. But there are other times that the case manager must break confidentiality, especially when suspicion of harm to self or others is involved.

The case manager from an intensive case management experience speaks of a different type of dilemma involving the mandate to grant clients autonomy whenever possible. Case managers may see clients choosing alternatives that are not in their best interests. Sometimes it is very difficult to let clients make these choices. The case manager from school-based intervention services talks about the difficulties involved in providing services according to legal or ethical guidelines. Clients often violate rules just so they can maintain their stability and have their needs met. Sometimes professionals violate or think about violating policies. Professionals always have to assess what they think and how they will behave in these situations.

Working with families is often integrated into the case management process. Sometimes families can enrich and support the helping process; sometimes they can cause difficulties. The case manager from family services and addiction treatment describes one of the times when family pressure threatened implementation of the case management plan and how the agency uses client participation in groups to help clients expand beyond the family’s influence.

In situations such as those just described, as well as many others, finding the appropriate resolution is difficult and challenging. Case managers must constantly ask themselves certain questions, such as: What is in the client’s best interest? What is the right choice ethically? Am I operating within the guidelines of the agency that employs me? Case managers use  codes of ethics , the law, and agency policies and procedures to guide their practice. Professional organizations develop codes of ethics as a way to communicate professional standards of professional conduct. Maintaining confidentiality, mediating disagreements among family members and clients, working with potentially violent individuals, honoring client preferences, and upholding complicated rules and regulations are among the thorny issues with which case managers grapple. Several pressures increase the challenges that case managers face. Clients are becoming more aware of their right to make decisions about their own care, and families are becoming more involved in their relatives’ care. New technological, psychological, and economic interventions are continually being developed. Dealing with finite resources, case managers must control costs and allocate resources equitably.

Special Note: As we discuss the many ethical and legal issues that case managers face, we provide information that extends across various professions. For your information, in Appendix A, we outline the codes of ethics and guidelines from several professions, such as the National Association of Social Workers, National Organization of Human Services, Commission on Case Management Certification, and American Case Management Association (for nursing case managers). We also include a professional code or standard of practice for the National Council on Interpreting in Health Care. Knowledge of each of these professional codes will help you understand in more depth the professional guidelines for ethical issues that case manager encounter. Often, helping professionals provide case management services while they are operating under the auspices of their own professional codes (e.g., social workers serving as case managers). It is important to know the standards of one’s own professional ethical code, especially in relation to any special case management guidelines, when these codes agree, and when they may be in conflict.

We now explore various ethical and legal dimensions of case management work. We begin by considering the obligations that case managers have to maintain the confidentiality of their clients.

4-1aConfidentiality

In the helping professions, the obligation of  confidentiality  is fundamental to developing a relationship between the helper and the client. When the client is sure that information disclosed during the helping process will be kept in confidence, he or she feels freer to share concerns and issues. The fuller the disclosure, the greater the opportunity for the case manager to gather valuable information about the client and his or her situation. This facilitates assessment and treatment planning. Trust between the helper and the client is a prerequisite to the success of their relationship. Case managers are in a unique position with respect to confidentiality because they work with the family and friends of the client as well as with professional colleagues.

One of the first points of discussion between case manager and client must be confidentiality and its meaning within the case management process. Five standards for confidentiality must be stated (see  Figure 4.1).

1. The case manager keeps client information confidential, except when the client intends to harm self or others or if the client has been neglected or abused or reports neglect or abuse of others. Another exception occurs if the case manager is under supervision or is court-ordered to produce records. Finally, confidentiality may be breached if the client agrees.

2. When the client needs to share information with colleagues, the case manager will inform the client of three factors:

· (1)

who will be told;

· (2)

the reason for the disclosure; and

· (3)

what information will be disclosed.

3. If the client consents, then some information will be disclosed to family and friends.

4. The case manager must testify in court regarding information about the client, unless the case manager is protected by the state. This legal privilege of communication is usually reserved for patient–therapist communication.

5. The case manager must ask for the client’s permission to release information.

Figure 4.1Considerations for Confidentiality

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