Ethics: New Technology & Confidentiality

Professional Experience Article

As I have mentioned in previous articles, as part of our ethics-inaction policy, I have been fielding phone calls referred by the 491 Board regarding ethics questions that they could not answer. An interesting one came in today that I think needs to be mentioned. There are a whole lot of new technological devices coming out on the market, some of which have the potential for creating traps or holes into which we, as a profession, could fall if we are not careful. Today I had a licensed mental counselor ask about smart watches. As you probably know, this is a device that looks like a wristwatch, such as the Apple in the form of a wristwatch. It was explained to me that it tells the time, and is a device over which one can text, make phone calls, and perhaps other functions. Many have a GPS in it that allows parents to see where their children are on a map. But one other somewhat frightening function it has is that the parent or other person can dial up the device like a phone, but it does not ring, it only opens a line that allows the parent to listen in on what is happening in the child's environment outside of the child’s awareness. While this can be a great safety device on one hand, it also serves to invade other people's privacy on the other hand. This counselor stated that she works with children, both individually and in group therapy. The concern was as to whether or not this device could compromise the confidentiality of sessions, both individual and group. We, as a profession, need to think about these issues. Obviously, we have the responsibility of maintaining the confidentiality of our sessions, regardless of the modality of the sessions. But the client or patient owns the privilege of releasing the information or not. It is our job to maintain the integrity of that privilege.

In speaking to this mental health counselor, I asked if there was a policy in place regarding the confidentiality of the individual sessions with the children. She stated that she worked for an agency, and that they did, indeed, have such a policy. She also stated that this was in the informed consent form, signed by the parents. We all need to make sure that we have signed informed consent forms. The key word here is, “informed.” In order to protect ourselves we need that signed form. In order for informed consent to occur, the patient must be “informed.”

Consequently, the first thing we need to do is make sure we have that signed informed consent, and that it contains the policy of our practice, be it private or agency, that speaks to issues, like these devices. Thus, we may have some protection for ourselves, should these rights be given verbally violated without our knowledge. But, we must make best practice to ensure due diligence with regard to making sure that these devices are not in our sessions. This is both for our protection, and the protection of the patient’s confidentiality.

In the instance of the individual session, there is a gray area. Having worked in an agency in the past, I am aware that many or most agencies have policies that what is said in the individual session stays in an individual session, even if the patient is a child — even if the parent demands to know what the child said. Obviously, if the child reveals something that triggers mandated reporting or duty to warn, we must do something. But the other problem is the question, “How do we achieve informed consent when the patient is a child?” Also, in tandem with this, “Who owns the privilege when the patient is a minor?” The parent? The child? Some variation thereof? These are ethical gray areas that we are going to have to negotiate, and possibly, to clarify is when we move forward as a profession. In the instance of the individual session, it is the opinion of this licensed mental health counselor, (with the caveat that I am not representing FMHCA here), that there is a good likelihood that this device is violating HIPAA and various codes of ethics, if the parent listens in without the knowledge or permission of the patient or counselor. It seems even clearer, however, that, in the case of group therapy, there are multiple patients whose civil rights must be maintained in the integrity of a confidential environment. If one parent listens in, (not to mention multiple parents), on one or more of these devices, it seems clear to this licensed mental health counselor that HIPAA is being violated. Again, I use the caveat that I am not speaking for FMHCA. This is a discussion that we need to have as a profession. The opinions expressed here are certainly not the “be-all & end-all,” but merely points at which to begin this discussion. Ethical food for thought.

Written By: Michael G Holler

Michael Holler is the Past President, Ethics Committee Chair, & Parliamentarian of FMHCA, he is a Licensed Mental Health Counselor, a National Certified Counselor, a Certified Clinical Mental Heath Counselor, a Certified Forensic Mental Health Evaluator, a Certified Child Custody Evaluator, a Qualified Parenting Coordinator, a Qualified Clinical Supervisor and a Florida Supreme Court Certified Family and County Mediator and a Certifies Kink AwareTherapist & Educator. Michael has a private practice in Tavernier in the Florida Keys. Michael has been working with individuals, families, couples and organizations for over 25 years. Michael is also a Neurofeedback provider. Michael has worked in inpatient psychiatric, community mental health and private practice settings; Michael has worked as an adjunct professor in psychology at Florida Keys Community College. Michael was President of the Upper Keys Interagency Council in 1997. Michael was the first Intensive Onsite Services Counselor in the State of Florida.