Confidentiality and Consent to Share Information IS THERE EVER A RIGHT TIME TO DISCLOSE OR SHARE INFORMATION WITHOUT CONSENT?

BY BRUCE LLEWELLYN, MSW, RSW AND SHERYL PEARSON, MSW, RSW, LLB

are ethical cornerstones of every regulated profession and social work is no exception. Some might say that social work, more than most, requires a foundation of confidentiality and consent, given that trust and respect are fundamental to the social worker–client relationship. The CASW Code of Ethics state that “Social workers demonstrate respect for the trust and confidence placed in them by clients, communities and other professionals by protecting the privacy of client information and respecting the client’s right to control when or whether this information will be shared with third parties.”

This article is part one of a two-part series dealing with confidentiality and consent to share information. Part one will address the principle of confidentiality and the exceptions to confidentiality. Part two will address the principle of consent to share information.

The ACSW Standards of Practice 2019, section D.5, Confidentiality, provides that:

(a) A social worker will safeguard the confidentiality of the information obtained in the course of practice, including while teaching, providing supervision, conducting research, or other professional duties.

(b) Except as noted in section D.7, a social worker will disclose information about a client to others only with documented informed consent from the client.

Value 5 of the CASW Code of Ethics deals with Confidentiality in Professional Practice in a similar way: Social workers only disclose confidential information to other parties (including family members) with the informed consent of clients, clients’ legally authorized representatives or when required by law or court order.

Thus, there are only two conditions that justify the release of confidential information by a social worker:

1. The client (or their legal representative) has consented to the release of information; or

2. The social worker is required by law or court order to do so.

The intention of this article is to explain the exceptions to confidentiality.

Disclosure of confidential information is permissible when a social worker believes that disclosure is necessary to protect against a clear and substantial risk that the client will inflict imminent serious harm on self or others. The CASW Code of Ethics provides that “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.”

Notably, this exception sets a high bar for disclosure of confidential information without consent. There are three factors that must be taken into consideration. (See Supreme Court of Canada case Smith v. Jones, SCC, 1999).

(1) Is there a clear risk to an identifiable person or group of persons?

(2) Is there a risk of serious bodily harm or death?

(3) Is the danger imminent?

Clearly, this exception includes the situation where a client is considered homicidal or suicidal.

Disclosure without a client’s consent is permissible when a social worker is required by a Provincial or Federal

Act or regulation or a court order to disclose the information.

1) Court orders to disclose/share information must always be adhered to.

2) The Canada Evidence Act (1985): A subpoena may compel a social worker to attend court and/or provide testimonial evidence. Law enforcement agencies/lawyers may also subpoena file documentation.

3) The Child, Youth and Family Enhancement Act (2000) states at section 4(1) that any person who has reasonable and probable grounds to believe that a child is in need of intervention shall forthwith report the matter to the director or a police officer.

4) The Communicable Diseases Regulation (Public Health Act, 1985) requires the reporting of communicable disease such as sexually transmitted disease and pandemic influenza to the director of health. The regulation provides that when a person is infected with a communicable disease to which the Act applies, notice shall be given to the medical officer of health.

5) The Workers’ Compensation Act (2000) provides that all health professionals, including social workers, have a duty to report workplace injury and treatment to the Workers’ Compensation Board within 48 hours.

And, particularly relevant to our current circumstances:

6) Under the Health Professions Act (section 1.1(1)), a regulated professional (including RSWs) must immediately notify the medical officer of health if they know or reasonably suspect the “existence of a nuisance or a threat that is or may be injurious or dangerous to the public health.” According to the Public Health Act, a “nuisance” is a condition that is or that might become injurious or dangerous to the public health, or that might hinder in any manner the prevention or suppression of disease. This would include reporting information about a client who is at risk of having COVID-19 and not engaging in self-isolation.

Each of the above provincial or federal acts requires the disclosure of information, which is distinct from permitting the disclosure of client information. When disclosure of information is required, as indicated in the cited Acts above, section B.5(c) of the Standards of Practice does not apply. However, when agency policy or legislation permits or allows the sharing of information without consent (for instance, as provided for in the Health Information Act and Children’s First Act), section B.5(c) of the ACSW Standards of Practice applies (more on this in part two of this article in the next issue.)

Disclosure of confidential information about a client is also permissible to a collection agency if it is necessary in order to collect a fee.

Disclosure is permissible when the information is required for a social worker to defend against a complaint of unprofessional conduct and/or when directed to do so by an investigator or prosecutor of a complaint under the Health Professions Act.

In all instances, social workers disclose the least amount of confidential information necessary to achieve the desired purpose.

There you have it: exceptions to the principle of confidentiality in a nutshell. We will continue to explore the topic of consent to share information in part two of this series in the next Advocate.

(a) Notwithstanding section D.5, a social worker may disclose information about a client without the client’s consent in the following situations:

i. when a social worker believes that disclosure is necessary to protect against a clear and substantial risk that the client will inflict imminent serious harm on self or others;

ii. when a social worker is required by a Provincial or Federal Act or regulation or a court order to disclose the information;

iii. to a collection agency if it is necessary in order to collect a fee;

iv. when the information is required for a social worker to defend against a complaint of unprofessional conduct; and

v. when directed to do so by an investigator or prosecutor of a complaint under the Health Professions Act.

SHERYL PEARSON and BRUCE LLEWELLYN are Managers of Regulatory Practice for the Alberta College of Social Workers.