Woman on Phone
by Kathryn S. Krase, Ph.D., J.D., MSW
Since your very first practice class in a social work program, you’ve probably been told a thousand and one times that you must keep client information confidential. “Don’t talk about clients with friends or family.” “Don’t discuss clients in the hallway or elevator,” and so forth. And yet you are a mandated reporter, required by law to report suspicions of child abuse and neglect. Isn’t there a conflict here? The short answer is “yes,” but this article will spell out the long answer for you that finds that your legal obligation to report trumps your ethical responsibility to your client.
Responsibility to Keep Client Information Confidential
Confidentiality means that information shared within a relationship will not be shared outside that relationship. The expectation is that what a client tells a social worker, the social worker will not reveal to others. The purpose of client confidentiality is to encourage clients to share information that may be embarrassing, or even self-incriminating. Through the sharing of such information, the social worker can help the client address an issue, concern, or problem the client may be experiencing. The social worker’s obligation to keep client information confidential is supported through state and federal law, but most often is discussed in reference to the NASW Code of Ethics.
In the NASW Code of Ethics (NASW, 2008), Standard 1.07 outlines that social workers “should respect client’s right to privacy” (1.07[a]) by protecting “confidentiality of all information obtained in the course of professional service, except for compelling professional reasons” (1.07[b]). So, is the legal requirement to report suspected child maltreatment a “compelling professional reason” to break client confidentiality? And the simple answer is “yes.”
Although a social worker’s primary commitment is to his or her client, the Code outlines that social workers have a responsibility to the larger society as well. In Standard 1.01, the Code acknowledges there are times when the social worker’s responsibility to society at large, or a specific legal obligation of the social worker, may supersede loyalty to a client. The example of child abuse reporting is specifically highlighted in this standard.
So, the legal requirement of all social workers to report suspected child maltreatment trumps the responsibility to keep client confidences quiet. The NASW Code and related laws all find this to be so.
The Importance of Informed Consent
Balancing the ethical responsibility to protect client confidentiality and the legal obligation to protect children from harm is difficult, even for social workers with decades of experience! So, how do you actually do this? First things first, you start at the beginning of the relationship with your client by incorporating a discussion of the limits to client confidentiality with your client through informed consent.
Informed consent is the process through which social workers discuss with clients the nature of the social worker/client relationship. Through informed consent, the social worker and client outline what the client can expect from the professional relationship, as well as what the social worker expects from the client’s participation.
Informed consent often includes a discussion of basic protocols, such as how to make or cancel appointments, or the best way to contact the social worker. The process should also involve outlining what work will be done with and for the client, and what expectations there are for client involvement. Integral to the informed consent process is a discussion of client confidentiality.
Using simple language, appropriate to the developmental and language needs of the client, the social worker needs to explain to the client that he or she will generally keep information private, but that there are specific instances when the social worker is required to break client confidentiality. It is at this point that the social worker should highlight that if he or she suspects child maltreatment based on information received from the client, the social worker must break client confidentiality to make a report of the suspicion to child protective services.
It is important to clarify with the client that this means that the social worker may have to report suspected child abuse or neglect based on what the client says, even if the client is neither the victim nor the perpetrator. In other words, the social worker may (depending on the state where he or she resides*) have to make a report involving people he or she has never met.
In some agencies or practice settings, informed consent involves the client signing a form that acknowledges receipt of certain information. Although a written tool is a good idea, it is important that there be additional methods for ensuring informed consent.
In all cases, with or without written informed consent tools, the social worker and client should discuss, face-to-face, expectations for confidentiality and when confidentiality will be breached. The social worker should use language the client can understand. So, the social worker can say that he or she will keep information “private” or “between the two of us.” But it is very important that the social worker make it clear that there may be times when the “private” information will be shared with others. Basic language can be used, such as, “I will have to share this private information if I think that you are going to hurt yourself, or hurt someone else, or if I think someone may be hurting you or someone else.”
As with other forms of communication with clients, it is important to ensure that the client understands what you outline through informed consent. With child clients, or clients with impaired cognitive ability, you can start by asking them if they understand, but it is best to follow up. You can ask a question like, “If a boy told me that his mother was hurting him, would I keep that private?” And then explain who you would report to and why, highlighting that child protective services would then help protect that person from being hurt again.
It is possible that by explaining to your client the limits of confidentiality, the client may choose not to disclose information that would warrant you to make a report to child protective services. It is important to remember that it is the client’s right to choose what information to share with you. That is part of the client’s right to “self-determination” (NASW Code, Standard 1.02).
Informed consent is most often thought of in the context of the contracting stage with a client, which comes at the beginning of the professional relationship. To be effective, informed consent should be seen as an ongoing process. Informed consent can be integrated into each session with a client, or at regular/periodic intervals throughout a professional relationship. As the goals of the relationship change, informed consent should be revisited.
Protecting Your Clients Even When Breaking Confidentiality
Whereas it is clear that professional standards of conduct accept and expect a social worker to break client confidentiality to report suspicions of child maltreatment, the Code also highlights the social worker’s responsibility to minimize harm to a client from this kind of disclosure. Social workers are expected to provide the least amount of confidential client information necessary.
Even while making a report to child protective services, you should try to protect your client as much as possible. If you make a report to child protective services about a client, you do not provide a complete bio-psycho-social assessment of your client. Instead, you provide the information necessary for fulfilling your legal obligation to report, as well as your ethical obligation to the larger society, while protecting as much of your client’s privacy as you can.
The responsibility to keep client confidentiality while simultaneously adhering to the legal responsibility of social workers to protect children from maltreatment is an obvious conflict. However, a firm grounding of the professional relationship through thoughtful informed consent and attention to the responsibilities of the social worker to minimize harm to the client even after client confidentiality is breached show how such conflict can be effectively eased.
* For state specific information, visit the Child Welfare Information Gateway State Statute Search at: https://www.childwelfare.gov/systemwide/laws_policies/state/
References
National Association of Social Workers (2008). Code of Ethics.
Kathryn S. Krase, Ph.D., J.D., MSW, is an assistant professor of social work at Long Island University in Brooklyn, NY. She earned her Ph.D. in social work, her Juris Doctor, and her Master of Social Work from Fordham University. She has written and presented extensively on mandated reporting of suspected child abuse and neglect. She previously served as Associate Director of Fordham University’s Interdisciplinary Center for Family and Child, as well as Clinical Social Work Supervisor for the Family Defense Clinic at New York University Law School.