The Purpose and Significance of Discretion Between an Organization and Customers

Introduction

Client confidentiality is the practice where an institution or individual providing a beneficial service keeps the information, details and in some cases, the identity of their clients, private and exempt from release to any third party unless the client consents to it or a legal obligation such as a search warrant or a subpoena demands its disclosure.

Confidentiality is based on four basic principles:

1. Respect for an individual’s right to privacy.
2. Respect for human relationships in which personal information is shared.
3. Appreciation of the importance of confidentiality to both individuals and society.
4. Expectations that those who pledge to safeguard confidential information will do so.

( Understanding Confidentiality. - The Manitoba Teachers' Society, n.d.)

Confidentiality is an extension of privacy which ensures that identifiable data such as the client’s name, address, contact number, email address, driver’s license number and information about his family e.g. parent’s surname prior to marriage, spouse name, relationship status etc. and the release of any information divulged to the professional in confidence shall be protected.

The need of confidentiality can arise as a contractual duty through a service agreement, employment contract, or client agreement, as an ethical duty informed by a code of ethics or code of conduct or as statuary duty governed by professional regulation or a particular legislative scheme. (Townsville Community Legal Service (TCLS), n.d.)

Forms of Client Confidentiality

Lawyer-Client Confidentiality

Confidentiality is the bedrock principle of legal ethics. (Susan P. Koniak, 1992) The attorney-client privilege is one such confidentiality doctrine which states that whatever information a client discloses to the lawyer shall remain covert and neither the lawyer nor the client shall testify regarding any such matter. In the advent of certain, very unusual circumstances, the lawyer has the right to divulge any private information, if he thinks it is vital to prevent loss of someone’s life and property.

It is essential to allow candid and forthright communications between both the parties. Due to secrecy promised by this doctrine among other related ones the client is more likely to be honest and reveal crucial information to the lawyer since he has no fear that this data can be used against his interest. Confidentiality frequently is viewed as a necessary corollary of the adversary ideal, (Fische, 1998) it helps the attorney to give a sound and carefully reasoned legal counsel. Indeed, armed with full knowledge, counselors at law are better equipped to "satisfy all of their professional responsibilities, uphold their duties of good faith and loyalty to the client, and contribute to the efficient administration of justice.” (King, 2002) However it also decreases the chances of disclosure of negative information. Moreover, the ‘zero-sum’ nature of litigation suggests that the offender’s party has the right to the same confidentiality protections as the victim. The chances of winning by either party are significantly and unfavorably counterbalanced.

But confidentiality laws also mask the attorney’s involvement in a client’s unlawful scheme, hence disallowing transparent and just legal action. The Logan case is the perfect example. In 1982, Alton Logan was convicted of killing a McDonald’s security guard—a crime he didn’t commit. At the time of the trial, Dale Coventry and Jamie Kunz, had knowledge of Logan’s innocence. Andrew Wilson, another man who had been investigated for the crime, had already confessed to them that he had killed the guard. Yet Coventry and Kunz did not come forward with this information because they were Wilson’s attorneys (representing him on unrelated charges involving the murder of two Chicago police officers). So Coventry and Kunz kept their client’s secret for twenty-six years, while Logan served his life sentence. After Wilson died in 2008—and with his prior approval—the attorneys finally came forward with an affidavit detailing the confession. They had prepared (and notarized) the document more than two decades earlier, so that when they were finally allowed to talk upon Wilson’s death, their claims would be considered credible. With their help, Logan was eventually released from prison. (Possley, 2008)

Doctor-Patient Confidentiality

Patient confidentiality is the client confidentiality entitled to patients which ensures that no personal information, data or records shared with the health care provider must be shared with anyone else unless the patient consents to it, though it is unlikely that medical records stay confidential forever. The physician’s duty to keep patient information confidential dates back at least to the earliest codes of medical ethics - the Hippocratic Oath for example, which requires the physician to promise that "What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself holding such things shameful to be spoken about." (Berg, 2011)

Only in certain conditions, the confidentiality may be breached deliberately i.e. the parents must have access to their kids’ medical information. The patient himself may sign a waiver allowing his friends and family to know about his present medical condition. If a patient is considered mentally or physically incompetent, then his medical information is no longer confidential and available to his caretaker. In some states of the U.S., evidence of child or elder abuse as well as gunshot wounds are also a prerequisite for informing authorities. (Jessica De Bord, n.d.)

Patient confidentiality is essential as without it, the patients may not disclose important information to the health care provider. For example, in the United States of America, during the 1970s the number of people involved in substance abuse treatment increased greatly, but any drug-related activity including the treatment for substance abuse, could be the basis for criminal prosecution on a federal level. (Fallon) Hence it stopped many people from seeking treatment. The Health Insurance Portability and Accountability Act (HIPAA) of 1996 demanded that all healthcare professionals and organizations must protect the patient’s identity and ensure the integrity of relevant confidentiality laws.

However certain type of patient information is released to researchers, families of other patients, other pharmaceutical and public health technicians and officers, law enforcement and third party payers and certain biomedical organizations. The patient’s consent, in this case, is not required in many parts of the world.

Apart from privacy concerns, it is vital that the patient and the caregiver maintain a close and caring relationship where there is a high sense of security and trust between the two of them, as “Effective treatment requires accurate information. Patients are most likely to provide this information when they are not worried about public exposure.” (Pamela Sankar, 2003)

Counselor or Therapist-Client Confidentiality

Therapist-patient confidentiality is the requirement that mental health professionals or counselors protect their patient’s right to privacy by keeping their identities and the details of their sessions (i.e. notes, records and other such files) private. Confidentiality is undoubtedly one of the basic principles of psychotherapy and counseling. Whatever the patient tells a therapist, it is to remain between them and them alone. Patients are at a very vulnerable point in their lives when they seek counseling and it is impossible for them to obtain the help they require, without fully trusting that the counselor will keep their thoughts, confessions and state of mind a secret. HIPAA includes a segment that protects the information about an individual’s mental health. (Angela Londoño-McConnell, Stacey Larson, n.d.) Any disclosure of the information comes from the patient only, unless he/she has authorized the therapist by the means of a written and signed authorization. (Confidentiality, n.d.)

Confidentiality is not just limited to a professional code of ethics or conduct – it has a legal aspect as well. "Any licensed therapist who breaches confidentiality without a patient's approval is open to a lawsuit and can lose his license for violating professional ethics." (Goleman, 1993) While specific laws vary, there is a basic assurance of complete confidentiality for the clients, except in certain situations. Therapists are legally required to break confidentiality if their patient is a risk to himself or to others, for example, if he intends suicide, or is thinking about harming someone. This provision was put in place after the murder of Virginia Tarasoff, a student of University of Berkeley by a fellow student who had disclosed to his counselor that he intended to murder her. The counselor chose to keep client confidentiality, and did not warn Tarasoff, and was sued by Tarasoff’s parents when the fact that the murderer had professed his intentions in therapy, came to light. (Goleman, 1993) (Jessica De Bord, n.d.) Therapists are also required by law to turn over patient records and details, and related documents, if asked to do so by law enforcement agencies. (Ley, 2014)

Importance of Client Confidentiality

Apart from its obvious importance in maintaining transparency and frankness promoting a feeling of trust between the two parties, confidentiality laws prevent the revelation of potentially embarrassing personal information which may include past incidents of sexual abuse, domestic violence, drug use, addiction to alcohol, medical information, marital problems, erratic behavior, poor education, bad work ethics, relationship or psychological history etc.

Confidentiality restrictions also prevent the uncovering of details about a person’s parents, spouse and children which may increase the chances of discrimination against him for example if he has struggled with a mental illness like schizophrenia in the past, or is suffering from a medical condition like narcolepsy, employers may be hesitant to hire him for a job. The exposure of such information can be highly detrimental to an individual’s reputation especially if it is inaccurate for example, if the person has been trialed for false charges of child abuse in the past. Sometimes confidentiality is of primary significance to personal security especially in case of domestic violence shelters and witness protection programs. Both require complete confidentiality for their success.

Confidentiality provisions also safeguard family security, especially immigrant families who decide not to avail medical and other social services, for the fear of being deported if the immigration and Naturalization Service (INS) finds out. They also may be necessary to encourage individuals to make use of services designed to help them. Adolescents may avoid seeking mental health services at a school-based clinic, for example, if they believe that information will get back to their teachers, parents, or peers. The same holds for birth control or HIV-related medical consultations. (Soler, 1993)

All privileged communication between lawyer and client is protected in Pakistan’s legislature, under Article 9 of the Qanoon-e-Shahadat Order 1984.”No advocate shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment.” (Governement of Pakistan, 1984) These obligations to secrecy are mandatory even after the lawyer has left the employment. However, lawyers are still required to disclose information that clearly shows the client is involved in the pursuit of illegal actions.

Further, Article 12 of the same order further reinforces the fact that communication between lawyer and client is confidential: “No one shall be compelled to disclose to the Court, Tribunal or other authority exercising judicial or quasi-judicial powers or Jurisdiction any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled' to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.” (Governement of Pakistan, 1984) (Nashat, 2010)

It is of note that this article prohibits authorities from pressing individuals to disclose certain privileged information in court, but does not prevent them from disclosing said information voluntarily.

Pakistan lags quite a bit behind in matters of doctor-patient and therapist-client confidentiality. There is no system to oversee that client confidentiality is implemented, and so the responsibility falls on the shoulders of individuals to do as they see fit. According to Ravale Mohydin in the Express Tribune, therapist-patient confidentiality is not a concept that psychologists understand. Many counselors freely share information that is supposed to be kept confidential, with the family of their patients. (Rauf, 2015) Those who are wronged and suffer from breaches of client confidentiality, do not know their rights enough to obtain redress. “There is no law in Pakistan that protects patients against a breach of privacy — there is just a confidentiality contract that some therapists sign.” (Rauf, 2015)

Doctor-patient confidentiality seems to suffer from much of the same indifference, but it does not always go unpunished. A doctor in Pakistan Institute of Medical Sciences (PIMS) was suspended after he allegedly uploaded a short 15 second video of a key political figure during his examination. (JUI-F leader filmed by doctor during medical examination, 2016) It is still unclear, however, whether this action was taken because of the involvement of a high profile figure, or it is taken every time doctor-patient confidentiality is breached.

Breach of confidentiality happens when a client’s private data is disclosed to a third party without the consent of the client. It can occur as an intentional leak, with the professional giving away information, or accidentally, through leaving files unprotected, leaving computers unattended, gossiping, or when sharing experiences with colleagues etc. Regardless of intent however, these breaches can cause huge losses for the clients, including disruption of privacy, public exposure, interrupted legal/medical proceedings and loss of reputation.

As confidentiality is made mandatory by law, breaches of confidentiality have legal implications as well. There are a number of ways clients can pursue redress for any harm that the breach may have caused. There may be disciplinary proceedings where the service provider is disbarred or suspended from his/her line of work. (Government of Western Australia )The service provider’s employment may be terminated due to a breach of employment contract. Civil proceedings are where the client demands monetary compensation through a lawsuit. Criminal proceedings involve the case going to court, where the service provider is charged with breaking confidentiality. (Consent & Confidentiality, n.d.) This may result in the service provider being charged with a fine or even imprisonment. One of the greatest consequences of breaches is the loss of reputation of the service provider. This may involve the entire profession as well, for example, in the case of psychiatrists and therapists, the patient may be unwilling to trust the profession ever again. (Rauf, 2015)

Avoiding Breaches of Confidentiality

Keeping in mind the consequences of breaches of confidentiality, it is very crucial to formulate a confidentiality policy to benefit and protect both the client and the professionals. All the employees of an organization i.e. in a law firm, hospital, mental institute, rehabilitation center, educational institution, research center, newspaper etc. must sign the agreement and vow to practice the clauses of confidentiality as part of their professional and ethical code of conduct.

The professional must not talk about the client and his issues in a public place, a social networking site or to his friends and family. He must not leave his client’s report, records and files where unauthorized people can access them. Access to information must be limited to as few hands as possible, to minimize the chances of illegal transfer of confidential data. Any documents containing private information must not be destroyed. When in doubt about the adequacy of a course of action related to the disclosure of client information, the individual must seek the professional advice of his colleagues. Only the necessary information must be revealed to third parties, in case it is required.

The professional must be careful when using electronic media to send information about a client. He must avoid using the client’s name and instead, use code words if necessary. Antivirus, antispam, intrusion detection, and firewall software should be installed. All files should be encrypted or complex passwords be used. He should recheck the recipient’s fax number, contact number, email address, and always log off from computer after using it, depending upon the professional setting and vitality of the information. A strict security policy must be regulated at the workplace to avoid abuse of authorized or unauthorized access. A privacy expert, practice management expert or an attorney can be hired to help devise a realistic security policy which meets the needs the workers as well as the standards crucial to maintaining confidentiality in the workplace as well as train the professional staff.

File and data activity should be monitored, reported and frequently audited to see who accessed sensitive information, when and how many times they accessed it, whether they moved or sent it to another location or person, and if/how the transmission and file itself was secured and encrypted. These steps can help in decreasing the frequency of leakage of information and are important as both an internal security policy, as well as from a compliance perspective. (Chesanow, 2010)

Conclusion

Client confidentiality is the central aspect of many professions, and so, it is an integral component of their professional code of ethics. It is an essential standard to be maintained for the benefit of both the professional, and the client. Other than a few, very specific situations where it can – and sometimes, must- be breached, any violation of client confidentiality is a desecration of privacy, and is punishable by law in most countries. Thus, a strict internal security policy is necessary for organizations and institutions with the objective to avoid breaches as much as possible. Nevertheless, no matter how efficient such a policy may be, it is entirely up to the personal morals and work ethic of the individual professionals, to ensure that client confidentiality is indiscriminately maintained.