Conditional Confidentiality in Nursing
Confidentiality has always been a hallmark of the nursing profession. In 1893, the original Florence Nightingale Pledge—named for the beloved nursing icon—included this brief but powerful promise: “I shall … hold in confidence all personal matters committed to my keeping and all family affairs coming to my knowledge in the practice of my calling.”
More than a century later, with ethical and legal protections for confidentiality vastly more complicated, the Walden University MSN-degree-level course Psychotherapy With Individuals offers nursing students relevant, up-to-the-minute instruction on navigating conditional confidentiality. The course is part of the curriculum for students in the Master of Science in Nursing (MSN) program with a Psychiatric-Mental Health Nurse Practitioner specialization.
In the first week of class, M.A. Fisher’s Confidentiality Limits in Psychotherapy: Ethics Checklists for Mental Health Professionals guides students through the confidentiality considerations they may face in their nursing careers:1
The Ethical ABC’s of Conditional Confidentiality
A. Put the ethical rules first.
B. Learn the relevant laws.
C. Avoid ethical-legal confusion.
These basic ethical rules look simple when you list them, but they can become complicated to put into practice.
A. Put the Ethical Rules First
Each mental health profession has an ethics code that contains Ethical Standards about confidentiality. In contrast to laws, these ethical obligations were devised by your own profession and are enforceable for members of national professional associations. Even if you are not a member, these standards reflect the ethical behavior expected for practitioners of your profession. Ethics codes define the minimum standards—the “ethical floor” of your behavior about confidentiality—but you are free to “reach for the ethical ceiling” by adopting personal standards that are even more client protective than your profession’s ethics code (see Appendix B for definitions and clarifications of these and other terms).
Know the ethical rules of your own profession: These include not only ethical standards about maintaining confidences but also the related ethical obligations about informed consent. As you read your ethics code, keep your eye out for the Ethical Standards that can affect clients’ confidentiality rights without even containing the word confidentiality.
Make promises carefully: A promise of “absolute” or “unconditional” confidentiality may reassure prospective clients, but it creates both ethical and legal complications. It would be unethical to make that promise and then fail to keep it, but keeping that promise can be illegal if it leads you to disobey laws that require you to disclose information without the client’s consent. Almost all psychotherapists avoid this civil disobedience by promising only “conditional” confidentiality instead. That promise is easier to keep because it allows psychotherapists to obey the law, but it does bring its own complications. You can live up to your ethical obligations about conditional confidentiality only if you first take the time to prepare carefully, as described in Step 1 of the confidentiality practice model.
Remember that placing limits on confidentiality creates informed consent obligations: Placing “limiting conditions” on your confidentiality promise creates an ethical obligation to inform prospective clients about what those conditions will be. This informed consent conversation about the limits of confidentiality should take place before clients confide things you might later disclose to others without their consent. To enter this initial informed consent conversation adequately prepared, you must decide in advance exactly which conditions you intend to impose on confidentiality. That preparation includes informing yourself about your ethical and legal obligations, deciding in advance what limits you will impose on confidentiality, and preparing to explain when you might actually breach confidentiality in the future. Only then will you be ready to inform prospective clients accurately and honestly and to avoid promising (or by silence, implying) more confidentiality protections than you will actually be willing or able to provide. You are then free to obtain clients’ consent to receive your services on that basis. Within the ethical practice model, the checklists in Step 1 can guide you through the necessary preparation; then the checklists in Step 2 can guide you through the ethically required informed consent discussion with prospective clients about confidentiality and its limits.
Note that obtaining a prospective client’s informed consent to enter a psychotherapy relationship requires more than obtaining a signature on a consent form. Before giving consent to receive services, clients must be informed about the risks, including the possibility that the information they share during psychotherapy might later be disclosed without their consent. Ethically, that conversation is important because it gives clients their first (and sometimes their only) opportunity to protect themselves from unexpected breaches of confidentiality by knowing in advance when you will breach confidentiality and when you will not.
Thereafter, obtain the client’s explicit consent before disclosing anything voluntarily: Any time you disclose client information when you are not legally compelled to do so, you are disclosing “voluntarily.” At Step 2, you obtain the client’s informed consent for potential voluntary disclosures that would apply to all clients; then at Step 3 you must obtain the informed client’s consent for client-specific disclosures. In both situations, it is important to remember that obtaining “truly informed” consent means obtaining “consent from an informed person,” not just obtaining a signature on a form. For example, this involves informing the client about what information you will be disclosing and to whom, as well as the potential implications of disclosing or not disclosing it, before obtaining the client’s written consent to share information with others.
Be prepared to protect confidentiality to the extent legally possible: This involves learning to respond ethically when you are confronted with laws that legally require you to disclose client information “involuntarily” (i.e., whether or not you wish to, and whether or not the client gives consent). Such laws can create specific ethical responsibilities, and Step 4 contains checklists for responding ethically to these legal demands. You must also distinguish between actions that are legally required and those that are merely legally allowed (see the definitions in Appendix B). Ethically speaking, laws that merely allow disclosures are different from laws that require you to disclose information. The fact that you are sometimes legally allowed to disclose something without the client’s consent does not necessarily make it ethical to make that disclosure without consent. Disclosures that are merely legally allowed are voluntary disclosures—meaning the client is free not to give consent, and you are legally free not to disclose—so if you intend to disclose in certain circumstances, the best protection for clients involves obtaining their consent first, either in the initial informed consent conversation (Step 2) or later (Step 3).
Step 5 contains checklists that deal with “avoidable” voluntary disclosures; it involves an understanding of which disclosures are sometimes preventable even in legal contexts. Finally, the Step 6 checklists help you create relationships in which the topic of confidentiality can be safely discussed with others for their education, for mutual support in the midst of confidentiality dilemmas, and for lobbying for better legal protection of confidentiality where that is needed.
B. Learn the Relevant Laws
Taking an ethics-first perspective does not mean you can ignore the laws that affect your ability to protect confidences. Unlike Ethical Standards that arise within your own profession, the laws that affect confidentiality were enacted by legislators or regulators or were created by court decisions. These laws, which can originate at either the state or federal level, are of two major types: laws that help you protect confidentiality and laws that limit confidentiality. It further confuses matters that some laws actually do both.
Learn your state laws: Laws that require you to disclose client information usually arise at the state level. These laws have the most direct impact on your ability to protect client confidences. The relevant laws vary greatly from state to state, and you are responsible for learning the laws of your own state. Therapists who have trained or practiced in one state must take the time to learn a new set of laws if they move to another state. The ethical practice model used in this manual can be helpful when creating such a chart for your own state and can be useful when planning how to respond ethically to each of these types of laws.
Know which federal laws apply to you: Federal laws apply nationwide, but some apply only in certain settings. The most prominent federal laws affecting confidentiality arise from the Health Insurance Portability and Accountability Act of 1996 (HIPAA) regulations, which apply in any setting that transmits client information electronically. Most other federal laws apply only in certain settings (e.g., in schools or in federally funded substance abuse treatment facilities). In federal court cases, the Federal Rules of Evidence (Federal Evidence Review, 2015) will apply, in contrast to the state privilege laws that apply in state court cases.
Distinguish between voluntary disclosures and legally required disclosures: Ethically speaking, this is an important distinction. According to your ethics code, you are ethically responsible for informing prospective clients about any foreseeable limits of confidentiality, which would include both voluntary and involuntary disclosures (Step 2); for obtaining the client’s informed consent before you make any subsequent voluntary disclosure (Step 3); and for responding ethically when faced with a legal demand for involuntary disclosure of information (Step 4). Legally speaking, this is also an important distinction. You are legally responsible for knowing when your laws require you to disclose something (e.g., report child abuse), and sometimes there are legal penalties for failing to do so. But if you disclose without the client’s consent when you are not legally required to, there can also sometimes be penalties—both ethical penalties and legal penalties.
Distinguish between legally required disclosures and legally allowed disclosures: Legally speaking, laws that require you to disclose client information are different from laws that merely “allow” you to disclose. Ethically speaking, a legally allowed disclosure is a voluntary disclosure (meaning that the client remains free not to give consent and the therapist remains free not to disclose), and before you are ethically free to disclose voluntarily, you must obtain consent (Fisher, 2013). (This ethically important distinction was discussed earlier.)
C. Avoid Ethical-Legal Confusion
When psychotherapists confuse legal requirements with ethical obligations, they are more likely to place clients’ confidentiality rights at risk. It is important to know the difference between the two—and to notice when they come into conflict—because therapists have certain ethical responsibilities when their laws conflict with their profession’s Ethical Standards.
Remember to take an “ethics first” approach about confidentiality: Your ethics code describes your responsibilities as defined by your profession, which is why they were placed first in the ABC summary at the beginning of this chapter. This is where you should begin when making decisions about confidentiality, because these standards represent the ethical floor of your profession—the minimum standards below which you may not fall. But you need not settle for that “floor.” The checklists in the following six chapters are designed to help you reach for the ethical ceiling about confidentiality to protect clients’ confidentiality rights to the extent legally possible in your state.
Remember that laws sometimes support your Ethical Standards, but sometimes conflict with them: When the two overlap, you can use those protective laws on the behalf of clients whenever you are arguing for protection of their confidences. When they conflict, you must notice that you are facing an ethical-legal conflict, because in that circumstance you have certain ethical obligations about what to do. These are summarized in Step 4 (Appendix C describes types of laws protective and unprotective of confidentiality).
Place laws into ethical perspective and keep them there: The six-step ethical practice model on which this manual is based is an outline of our ethical responsibilities about confidentiality. By showing how laws can fit into each ethical step, the model both helps you place your own state’s laws into ethical context and helps you remember to keep them there. It leads you through the steps for preparing to recognize your state laws that can affect client confidentiality, learning how to use the laws that are protective of confidentiality, and establishing clear policies for responding to the laws that are unprotective of confidentiality or require you to limit it.
Plan how you will use each of the protective laws for better protection of the confidentiality of your clients: For example, if you receive a legal demand to disclose confidential client information, you can cite both your profession’s Ethical Standards and your state’s nondisclosure laws as a basis for protecting the information from disclosure.
Plan how you will respond ethically to each of the laws that conflict with your ethics code or conflict with your own personal values about protecting clients’ confidences: When faced with laws that command you to breach confidentiality, you have certain ethical obligations about protecting a client’s rights, and these are reflected in the ethical practice model. In Step 1, you must learn such laws in advance and decide how you will respond to them, so you will be prepared to describe your intentions accurately to prospective clients at intake at Step 2. Then at Step 4, you must respond ethically to legal demands when they arise. Step 5 is a reminder that failure to respond ethically to legal demands can result in disclosures that could have been prevented. Finally, Step 6 offers ideas for pooling resources with other professionals for learning laws, planning how to respond to them, and lobbying for legislative reform when that is needed. It is impossible for us to have effective communication about confidentiality with each other or with others unless we all speak in the same language about it. Appendix B contains definitions of some words and phrases that will be used in this manual. These concepts are important for understanding confidentiality ethics and for discussing the issues clearly with each other and with others.
Where Can I Learn More About MSN Programs?
Walden University is No. 1 in MSN graduates in the United States,2 and its Master of Science in Nursing (MSN) program with a Psychiatric-Mental Health Nurse Practitioner specialization is one of the few offered fully online. In this specialization, you will learn to assess, diagnose, provide therapy, and prescribe medications for patients with psychiatric disorders, medical organic brain disorders, and substance abuse problems. Courses focus on providing advanced skills and practicum training for treating children, adults, groups, and families. The curriculum includes a strong pharmacology component. An MSN degree in this specialization can help position you for roles in mental health clinics, community mental health centers, domestic violence shelters, private psychiatric practices, and schools.
If your nursing interests lead you in other directions, Walden has you covered, offering seven additional specializations in its RN to MSN or BSN to MSN online tracks. Find your passion and start learning your way to an exciting, fulfilling nursing career.
Walden University is an accredited institution offering a Master of Science in Nursing (MSN) degree program. Expand your career options and earn your degree using a convenient, flexible learning platform that fits your busy life.
1Walden Curriculum Source: https://wa.elearning.laureate.net/bbcswebdav/institution/USW1/_MASTERS_/MS_NURS/NURS_6640_WC/readings/USW1_NURS_6640_Fisher_Chapter_1.pdf
2Source: National Center for Education Statistics (NCES) IPEDS database. Retrieved July 2017, using CIP code 51.3801 (Registered Nursing/Registered Nurse). Includes 2016 preliminary data.
Walden University is accredited by The Higher Learning Commission, www.hlcommission.org.
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