Confidentiality Best Practices Manual - DC Coalition Against ...

92 downloads 107 Views 398KB Size Report
Chapter Four: Program Confidentiality and Record-Keeping Policies. Keeping Policies ... Court Record-Keeping for Mental Health Professionals: Nuts and Bolts  ...
Confidentiality Best Practices Manual A Resource Manual for District of Columbia Domestic Violence Programs Second Edition

A publication iolence publication of the DC Coalition Against Domestic VViolence R Revised and Updated: January 2011 Edited by: Julie Kunce Field, Esq.

Table of Contents Acknowledgments _______________________________________________ 3 Chapter One: Introduction ________________________________________ 4 Chapter Two: Confidentiality and Testimonial Privilege________________ 6 Confidentiality _____________________________________________ 6 Testimonial Privilege _______________________________________ 7 The District of Columbia’s Domestic Violence Counselor-Victim Privilege __________________________________________________ 7 In-Depth Look at the D.C. Law ________________________ 7 Limitations to the Privilege: When a Couselor May Disclose

Confidential Communication _________________________ 13 Limitations to the Privilege: When the Privilege is Not Waived; Exceptions _________________________________________ 17 Chapter Three: Federal Funding and Federally Funded Domestic Violence Programs ______________________________________________________ 18 Introduction ______________________________________________ 18 Types of Federal Funding __________________________________ 18 Family Violence Prevention and Services Act __________ 18 Victims of Crime Act ________________________________ 18 Violence Against Women Act ________________________ 19 Housing Assistance Emergency Shelter Grants ________ 20 Stewart B. McKinney Homeless Assistance Act ________ 20 Chapter Four: Program Confidentiality and RecordRecord-Keeping Policies and Protocols Protocols __________________________________________________ 21

1

Importance of Record-Keeping

_______________________________

21

Record Keeping Nuts and Bolts _____________________________ 22 File Contents

__________________________________________

22

Corrections to File Content _____________________________ 25 Access to Client Files______________________________________ 26 Custodian of Records __________________________________ 26 File Access Policies and Authorized Use _____________ 26 Internal Communications ____________________________ 28 Electronic Records __________________________________ 28 Destruction of Case Files ____________________________ 29 Suggested Forms to Limit Program Liability ____________ 30 Model Confidentiality Program Policy Outline ___________ 31 Chapter Five: Five: Mental Health Health Professionals _________________________ 32 Mental Health Professionals’ Testimonial Privilege ____________ 32 Definitions _______________________________________________ 32 Who Holds this Testimonial Privilege? _______________________ 33 Limitations to the Privilege _________________________________ 34 Program and Mental Health Professional Discresionary Disclosures and Disclosure Limitations _________________________________ 36 Court Record Client Anonymity _____________________________ 37 Court Record-Keeping for Mental Health Professionals: Nuts and Bolts _______________________________________ 37

2

Acknowledgments We thank Julie Kunce Field for her expertise and technical assistance during the development and revision of this manual, and Larisa Kofman, Stefanie Magness and Amy Loudermilk for research support. We also thank the Michigan Coalition Against Domestic Violence, the Battered Women’s Justice Project, and the Pennsylvania Coalition Against Domestic Violence for their sample policies and practices that are incorporated into this manual. This project is partially funded by the District of Columbia Office of Victim Services. Any opinions, findings, and conclusions expressed in this document are those of the authors and do not necessarily represent the official position or policies of the Government of the District of Columbia. This manual or portions thereof may be copied without further permission so long as appropriate citations and credit are given. Rebecca O’Connor

Policy Director

DC Coalition Against Domestic Violence 5 Thomas Circle, NW

Washington, DC 20005 www.dccadv.org

3

WITHOUT ASSURANCES OF CONFIDENTIALITY, FEW

Chapter One Introduction

BATTERED WOMEN WOULD CONTACT DOMESTIC VIOLENCE PROGRAMS OR OPEN UP TO BATTERED WOMEN’S COUNSELORS.

Nationally, more than three women are murdered

(Zorza, 1995)

by their husbands or boyfriends every day.1 There were 20

domestic violence homicides in the District in 2008, approximately

one every 2 ½ weeks.2 In 2008, the Metropolitan Police Department received

over 31,000 domestic-related crime calls, corresponding to one every 17

minutes.3 The Domestic Violence Intake Centers (DVICs), located at the D.C.

Superior Court and the United Medical Center4 served more than 5,000 victims of domestic violence in 2008. Domestic violence case filings that year totaled 7,631 – an increase of more than 11% from 2007.5 In addition to the victims

served in the DVICs, thousands of others annually seek support and services from the District’s community-based organizations.

Domestic violence programs provide a wide range of services, including

counseling, clothing, food, transportation, child care, shelter, employment

assistance, help with obtaining government benefits, court-based advocacy, and legal representation. Confidentiality of information that has been shared by a victim with a domestic violence advocate seeking help is critical for several reasons, including:

The dynamics between a victim and advocate change if the victim does not believe that the relationship is a safe one in which to share his/her experience.

Disclosure of confidential information in court proceedings may

jeopardize the victim’s safety (e.g., relocation information) or court

1

Greenfield, Lawrence A. Violence by Inmates: Analysis of Data on Crimes by Current or Former Spouses, Boyfriends, Girlfriends, Bureau of Justice Statistics 21 (1998). 2 Metropolitan Police Department, 2009. 3 Id. 4 Formerly known as Greater Southeast Community Hospital. 5 D.C. Superior Court, 2007-2008.

4

case (e.g., mental health information in a custody dispute).

Program funding sources may require confidentiality of certain information.

The program and program staff have to comply with federal and

local laws that require confidentiality and/or privilege.

In 1995, the Department of Justice issued a report to Congress on the

confidentiality of communications between victims of sexual assault or domestic violence and their counselors which included model confidentiality legislation.6 This report, which asserted the need to protect a victim’s confidential

communication to the maximum extent possible, was disseminated to the offices of Attorneys Generals’ and legislators in jurisdictions that did not have existing

confidentiality laws.7 Currently, the majority of jurisdictions, including the District of Columbia, have statutes providing confidentiality protection for victims of domestic violence and sexual assault.8

This Confidentiality Manual is a resource for domestic violence programs,

advocates, and other stakeholders in the District of Columbia. It provides

valuable and accessible information regarding how federal and local laws and regulations apply to programs and advocates, outlines how programs and

advocates can offer services in compliance with District and federal law, and

provides programs and advocates with guidelines for best practices in recordkeeping to help ensure confidentiality.

However, nothing in this manual is a substitute for specific legal advice

regarding the breadth and limits of confidentiality and privilege. For specific

questions, programs and counselors should consult with an attorney who is an expert in confidentiality and privilege issues.

6

U.S. Department of Justice, Report to Congress: The Confidentiality of Communications Between Sexual Assault or Domestic Violence Victims and Their Counselors: Findings and Model Legislation (1995). 7 U.S. Department of Justice, Privacy of Victims’ Counseling Communication, Legal Series Bulletin 8 (2002) (hereinafter “DOJ Bulletin”). 8 See USDOJ, Report to Congress.

5

Chapter Two Confidentiality and Testimonial Privilege CONFIDENTIALITY Confidentiality is an ethical, legal, or professional duty not to disclose

information to a third party.9 Confidentiality of communication may apply

because of the legal or ethical requirements of certain occupations, such as

doctors or lawyers to their patients or clients.10 In the domestic violence field,

confidentiality of communication exists to encourage help-seeking and to protect the safety and privacy of victims.11 Many domestic violence programs maintain

confidentiality policies and procedures. These policies and procedures many be

mandated by laws or regulations, or by ethical obligations. In addition, they may be implemented as a best practice to limit outside access to client information. When seeking services for assistance or protection, victims of domestic

violence should be able to trust that confidentiality will be maintained by the

advocate as well as the program. Confidentiality between domestic violence

advocates and victims also creates a way for victims to share their feelings and discuss their feelings and discuss their experience and needs without being

fearful that the information they share will be disclosed. In evaluating laws and how they apply to domestic violence counselors and programs, there may be some provisions that seem to require inconsistent protection for confidential

client information. Generally speaking, where there is doubt, a program should take whatever action is the most protective of victim information.

9

See USDOJ, Report to Congress. Id. 11 Throughout this manual, we use the term “victim.” Please note that this is intended to encompass individuals who identify as survivors of domestic violence. 10

6

TESTIMONIAL PRIVILEGE Testimonial privilege laws, also known as evidentiary privilege laws,

protect the confidentiality of information shared between individuals in specific kinds of relationships from disclosure or admissibility in judicial proceedings.12 Testimonial privilege laws most commonly protect the following kinds of

relationships: husband-wife, clergy-penitent, doctor-patient, and attorney-client. In the last thirty years, many states have passed privilege laws for rape crisis counselors and domestic violence advocates/counselors.13 Currently, the

majority of states and the District of Columbia have privilege laws protecting the communication between advocates/counselors and victims.14

Testimonial privilege laws help protect the privacy and safety of victims by

protecting the information shared in the course of the relationship. Public policy dictates that trust and confidentiality are essential in order for a successful

relationship to exist between an advocate/counselor and a victim. These laws promote the trust between a victim and the advocate/counselor assisting

him/her. Domestic violence programs can provide even more substantial protection for a victim’s safety because of these laws.

THE DISTRICT OF COLUMBIA’S DOMESTIC VIOLENCE COUNSELOR-VICTIM PRIVILEGE In October, 2006, the District of Columbia Council passed the Domestic

Violence Amendment Act of 2006, creating a testimonial privilege for domestic violence counselors. D.C. Code § 14-310 went into effect in March 2007.15

Before enactment of this law, varying degrees of communication protection were afforded to mental health professionals working in the domestic violence field and attorneys representing victims of domestic violence, but no specific provisions were in place for domestic violence advocates/counselors.

12

See USDOJ, Report to Congress. Id. 14 Id. 15 A technical amendment was made to the statute in January, 2009. 13

7

The District’s counselor privilege is a qualified privilege. This means that

it does not completely eliminate the possibility of disclosure of confidential

communication in judicial proceedings. However, it does offer protections that

did not previously exist. Because this is recent legislation, it is unclear how the courts may interpret the statutory provisions. The courts may offer a narrower or broader interpretation of the statute.16 InIn-Depth Look at the the D.C. Law It is critical to be familiar with the specific requirements of the D.C.

counselor/advocate privilege statute. In this section, we present and discuss the language of the statute and its implications for everyday best practices and procedures.

Definition: Confidential Communication

“Confidential Communication” means information exchanged between a victim and a domestic violence counselor during the course of the counselor providing counseling, support, and assistance to the victim, including all records kept by the counselor and the domestic violence program concerning the victim and services provided to the victim. (D.C. ST § 14-310 (a)(1)) This definition is broad and covers the entire range of communication

shared between a victim and a counselor. This definition includes all communication, whether it is ongoing or only happens once.

It specifically covers all records kept by the counselor and program

regarding the communication, as well as information shared during the course of 16

To date, no published opinions have cited to D.C. Code § 14-310. DCCADV will offer addendums and technical assistance with new judicial interpretations as they develop.

8

service. Presumably, it also includes the identity of the person who seeks services, since that is information that is exchanged between a domestic violence counselor and a victim.17

Definition: Domestic Violence Counselor

“Domestic Violence Counselor” means an employee, contractor, or volunteer of a domestic violence program who: a) is rendering support, counseling, or assistance to a victim; and b) has undergone not less than 40 hours of domestic violence counselor training conducted by a domestic violence program that includes the dynamics of domestic violence, trauma resulting from domestic violence, crisis intervention, personal safety, risk management, criminal and civil court processes, and resources available to victims. (D.C. ST § 14-310 (a)(2)(A) and (B))

The definition of domestic violence counselor is broad and includes

anyone in the program who is “providing assistance.” This goes beyond those

who have a therapy-like function (i.e.¸ those who do “counseling” in the manner that the word is generally understood), and covers anyone who has access to

confidential client information, such as administrative staff, program volunteers, student interns, and consultants. In order to be covered by the privilege, the individual must have undergone at least 40 hours of training on the topics

specified in the law. It is important that programs ensure that new personnel

(including volunteers and consultants) receive the necessary training to qualify

17

See, e.g., People v. Turner, 109 P.3rd 639 (CO, 2005) (identity information necessarily includes information shared by a victim of domestic violence who seeks services of domestic violence program or counselor).

9

for the privilege prior to being exposed to confidential information. Current staff many already qualify for the privilege and may not need to undergo additional

training to qualify. Each program should assess its staff training history to make this determination and seek training as necessary. Programs should document that individuals have completed the training and meet the requirement, and

include that notation and documentation in each person’s individual personnel file.

Supervision Requirements for Domestic Violence Counselors

A domestic violence counselor is someone who: a) is or is under the supervision of a licensed social worker, nurse, physician, psychologist, or psychotherapist; or b) is under the supervision of a person who has a minimum of 5 years of experience rendering support, counseling, or assistance to persons against whom severe emotional abuse or a criminal offense has been committed or is alleged to have been committed, of which at least 2 years of experience involves victims. (D.C. ST § 14-310 (a)(2)(C)(i) and (ii)) In order for the privilege to apply, the counselor must be under the supervision of either type of professional described in (a) or (b). Domestic violence counselors in many of the District’s domestic violence programs have supervisors that qualify under the District’s mental health professional statute as described in clause (a) above. Therefore, many counselors may need to be familiar with the requirements of the District’s mental health counselor privilege law, D.C. ST § 7.1201 et. seq., outlined in Chapter 5 of this manual.18 The 18

D.C. ST § 7.1201.01 (See appendix).

10

supervisor in clause (b) must be an individual with at least five years of experience working with victims of crime or abuse, and not necessarily or exclusively victims of domestic violence. The supervisor still meets this requirement if she/he worked with victims of other types of crime prior to working for a domestic violence program. The language in this section does not specify whether the individual supervising the counselor must be the counselor’s direct supervisor. This choice of statutory language suggests that the counselor could qualify in the following scenario:

Jane is a counselor at STOP DV, Inc. Her direct supervisor does not meet either clause (a) or clause (b) under the D.C. Privilege law’s supervisory requirement section. However, the program’s Executive Director does. Jane should therefore still qualify for the counselor/advocate privilege even though her direct supervisor does not meet the requirement.

It is important for programs to consider this requirement when making staffing determinations to ensure that counselors qualify for the privilege. As long as a counselor’s supervisor meets one of the two requirements described above, a counselor will qualify for the privilege and the information a client shares with that counselor will be protected. Domestic Violence Program Requirements

“Domestic violence program” means a nonprofit, nongovernmental organization that supports, counsels, and assists victims, including domestic violence hotlines, domestic violence shelters, and domestic violence intake centers. (D.C. ST § 14-310 (a)(3))

11

A counselor must work at a non-profit, non-governmental domestic

violence program to qualify for the privilege. Therefore, victim advocates for

government agencies such as the U.S. Attorney’s Office, Office of the Attorney

General for the District of Columbia, and the Metropolitan Police Department do not qualify for or hold the domestic violence counselor privilege; anything that a

victim shares with such a government-based victim advocate is not confidential, and may be shared with the police or prosecutor.

This definition is broad and covers all of the primary domestic violence

service providers, including hotlines, shelters, and domestic violence intake

centers, along with nonprofits that provide case management, support services, and legal advocacy services to victims of domestic violence. Agencies that

have domestic violence service providers as well as other services are also covered, but if information is sought to be shared by the domestic violence

service provider with other parts of the agency, the victim must sign a written release of information that follows the same guidelines as a release of

information where the information is going to a party outside of the agency. Victims may also seek services through agencies that are not exclusively

domestic violence programs. The statute’s definition of a “domestic violence

program” seems broad enough to protect counselors who are providing support, counseling, and assistance to victims even if they work for a non-profit that is not primarily or exclusively a domestic violence program. Definition: Victim Victim

A “victim” means a person against whom severe emotional abuse or an intrafamily offense has been committed or is alleged to have been committed. (D.C. ST § 14-310 (a)(5))

12

The definition of a victim is broad enough to include victims of an

intrafamily offense, whether or not they choose to seek a protection order under the intrafamily offense statute. The definition also includes a person who has

suffered severe emotional abuse, even if that emotional abuse does not fit within the definition of an intrafamily offense.

Minor victims are also encompassed under this definition. Under District

of Columbia statutes, victims of ages 12 and above are given the same rights

and protections as adult victims of domestic violence. Therefore, the application of the privilege law is the same. If the minor is under 12 years of age, the

victim’s parent, guardian, or personal representative may assert or waive the

privilege on his/her behalf.19 If a program receives funding under the Violence

Against Women Act, then the provisions of federal law require that both the nonabusive parent and an unemancipated minor must consent to the release of any confidential information, including personally identifying information.20

If a person has been adjudicated incompetent incompetent, tent the victim’s parent,

guardian, or personal representative may assert or waive the privilege on his/her behalf.

Limitations to the Privilege: When a Counselor May Disclose Confidential

Communications

Under the D.C. law, a confidential communication can be disclosed under the following circumstances:  Exception A: When Required by Statute or Court

(A) If the disclosure is required by a statute or a court of law. (D.C. ST § 14-310 (b)(1)(A)) 19 20

13

DC ST. § 14-310 (c)(1) See 42 U.S.C.A. § 13925

The communication between a victim and a counselor may be disclosed

when required by law or by court order.21 If any disclosure is ordered by a court, programs must take steps to ensure that the victim is advised of the impending disclosure and take specific actions to help protect the victim’s safety.  Exception B: If Authorized by Victim

(B) If the victim voluntarily authorizes the disclosure of the communication in writing. (D.C. ST § 14-310) (b)(1)(B)) A domestic violence counselor may disclose confidential information if the

victim authorizes the counselor or program to do so. This authorization must be in writing.

A client can withdraw his/her authorization to release information at any

time, and such withdrawal does not have to be in writing in order for the withdrawal to be effective. It is important that counselors and programs

remember that the victim makes the ultimate decision whether or not to waive

this privilege, and that the client should be given full information in order to make an informed decision about whether or not to sign the release of information (See Chapter 4).

 Exception C: To the Extent Necessary to Facilitate Service Delivery

(C) Counselors may disclose confidential communication to another program staff person or third-party provider to the extent necessary to facilitate service delivery. (D.C. ST § 14310 (b)(1)(C))

21

Note: in some other jurisdictions, courts have allowed limited disclosure of portions of confidential communication only after reviewing the records that are claimed to be privileged and determining whether disclosure is required to protect a criminal defendant’s constitutional rights, and only after a very specific showing by the criminal defendant that the information believed to be contained in the records is needed and cannot be otherwise obtained.

14

Programs often collaborate with other programs (e.g., make referrals)

when assisting clients. This exception allows for the collaboration to continue to the extent necessary for service delivery. However, programs that receive

Violence Against Women Act (VAWA) funds may be in violation of their funding conditions if they disclose confidential information to any third party, even if a collaborator (see Chapter 3).

Best practice is to have a client sign a specific, informed, written,

reasonably time limited release of information before sharing any client

information with a third party, regardless of whether the program is obligated to do so under VAWA funding provisions.22

 Exception D: To Protect Against Substantial Risk of Imminent and Serious Physical Injury

(D) Counselors may disclose confidential communication to law enforcement to the extent necessary to protect the victim or another individual from substantial risk of imminent and serious physical injury. (D.C. ST § 14-310 (b)(1)(D)) This exception should be used only if programs/counselors have a valid

reason to believe that the victim or another individual is actually at risk of

imminent and serious physical injury, and other actions for intervention or assistance (e.g., referral to a mental health professional or voluntary

commitment to a mental health institution) are not likely to be successful. Consider the following example:

22

Field, Julie. Confidentiality Presentation delivered at the DC Coalition Against Domestic Violence, Washington, D.C. (2007).

15

A client with whom you have been working closely for a month has described a plan to carry out her stated intent to kill herself. Your client leaves the shelter and does not return that evening. She left a suicide note at the shelter. You cannot reach her by cell phone, and know that she has taken with her the means to carry out the specific, articulated suicide plan. This exception would allow your program to contact law enforcement in these circumstances.

 Exception E: Statistical or Anecdotal Information Compilation

(E) Counselors may use non-personally identifying communication to compile statistical or anecdotal information. (D.C. ST § 14-310 (b)(1)(E)) This part of the statute does not permit the release of any personally

identifying, confidential information. It is comparable to a recent amendment to the Violence Against Women Act that establishes confidentiality requirements for domestic violence programs. Programs may reveal aggregate, statistical

information that does not personally identify a client, and is used for research or public information purposes (see Chapter 3).

 Exception F: Defense Against Liability Claims

(F) Counselors may disclose confidential communication to defend a claim against the program/counselor if a victim files a lawsuit against either or both. (D.C. ST § 14310 (b)(1)(F)) Programs/counselors may disclose confidential information if necessary

to defend either the program or the counselor if the victim files a lawsuit against them.

16

Limitations to the Privilege: When the Privilege is Not Waived; Waived; Exceptions Unless a disclosure is public, the D.C. law prohibits the further disclosure

by the recipient unless the further disclosure also meets one of the specified

exceptions in the law, each of which is discussed below.23

(B) If there is a sign-language or foreign language interpreter present. (D.C. ST 14-310 (b)(3))

If there is an interpreter present, the communication is still protected.

This third party is subject to the same disclosure limitations as domestic

violence counselors. The statute does not require the interpreter to be courtcertified.

(C) When the victim dies. (D.C. ST § 14-310 (c)(1)) The victim’s confidential communication with the program counselor is

protected even after the victim dies. The privilege can be waived after death by a parent, guardian, or personal representative as long as they have not been charged with an Intrafamily offense or neglect petition if the victim is a minor.

This person cannot have interests that are adverse to those of the victim. If any

of these conditions are met, the court will appoint an attorney for the purposes of either asserting or waiving the privilege. Note: The fact that a victim has chosen to assert the privilege is not admissible

in evidence.24

23 24

17

D.C. ST § 14-310 (b)(2). D.C. ST § 14-310 (d).

Chapter Three Federal Funding and Federally Funded Domestic Violence Programs INTRODUCTION Some federal funding provisions require domestic violence programs to

protect the privacy and confidentiality of those who use their services. Improper or unauthorized sharing of a victim’s confidential information could result in the suspension of a program’s funding from those sources.

There are several federal agencies that have restrictions on their

domestic violence program grantees. They include the U.S. Department of

Health and Human Services (HHS), the U.S. Department of Justice (DOJ), and the U.S. Department of Housing and Urban Development (HUD). TYPES OF FEDERAL FUNDING A. Family Violence Prevention Prevention and Services Act (FVPSA) (FVPSA)25 Domestic violence programs must provide documentation that policies

and protocols have been developed and implemented to ensure the

confidentiality of records pertaining to any victim provided family violence

prevention or treatment services. Programs must also provide assurances that

the address or location of any shelter receiving money under this law will not be publicized, except with written authorization of the person or persons responsible for the operation of such shelter. B. Victims of Crime Act (VOCA)26 Under section 10604(d) and (e), domestic violence programs that are

granted funds are prohibited from disclosing any information about a victim that 25 26

42 U.S.C. § 10402(a)(2)(E). 42 U.S.C. § 10601-10604.

18

could identify him/her as a specific person. The information obtained about a victim is immune from the legal process.27 C.

Violence Against Against Women Act (VAWA) (VAWA)28 VAWA was amended in 2005, effective January, 2006 and mandates that

programs that receive VAWA funds may not reveal personally identifying information about victims without “reasonably time-limited,” written, and informed consent.29 Under this provision, VAWA-funded programs are

prohibited from disclosing personally identifying victim information to any third

party, including to any database operated by any party outside of the domestic violence program. However, grantees and sub grantees may share: Non-personally identifying data in the aggregate and

non-personally identifying demographic information in order to

comply with federal, state, tribal, or territorial reporting, evaluation, or data collection requirements

Court-generated information and law enforcement-generated

information contained in secure, governmental registries for protection order enforcement purposes

Law enforcement-generated and prosecution-generated

information necessary for law enforcement and prosecution purposes If information is released because of statutory or court mandate (e.g.,

mandatory reporting of suspected child abuse or neglect), the service provider must:

Make reasonable attempts to provide notice to victims who are affected by the disclosure of the information and

27

42 U.S.C. § 10601-10604 42 U.S.C. § 13925 (b)(2). 29 42 U.S.C. § 13925 (b)(2). “Reasonably time-limited” is not defined in the statute, but it is determined by the circumstances and the purposes for which the client is requesting the release of information. It could be a few minutes, a few hours, and a few days. In no event should it be for more than 15 days, or 30 at the outside. 28

19

Take steps necessary to protect the privacy and safety of the persons affected by the release of information

VAWA confidentiality provisions apply to any program that receives any VAWA funds. D.

Housing Assistance Assistance Emergency Shelter Grants30 Grant recipients are required to implement procedures to ensure

confidentiality of records pertaining to any individual who is provided family

violence prevention or treatment services. All grant recipients must also certify that the address of the family violence shelter will not be made public without permission of the agency.31 E.

Stewart B. McKinney McKinney Homeless Assistance Act32 The Violence Against Women Act also specifically added a provision that

specifies that a domestic violence program provider shall not disclose any

personally identifying information about any client to the Homeless Management Information System (HMIS).33

30

42 U.S.C. § 11375 (c)(5). 42 U.S.C. § 11375 (c)(5). 32 42 U.S.C. § 11301. 33 42 U.S.C. § 11383 (1)(8)(A). 31

20

Chapter Four Program Confidentiality and RecordRecord-Keeping Policies and Protocols IMPORTANCE OF RECORD-KEEPING Domestic violence programs have records and files related to services

provided to clients. Record-keeping can be important for several reasons,

including program determination of client needs and service eligibility, funder

requirements, better equipping the counselor to provide appropriate services, and protecting programs against liability.

Of paramount importance is client safety. safety Programs must take steps that

reduce the risk of confidential information being accessed by or disclosed to a

third party. Programs should establish and maintain policies and protocols that

limit access to client records, while ensuring that program staff has the records they need to provide services. To do this, programs need to evaluate which records are necessary to operate the program and to best serve clients. For

example, counselors or other program staff should maintain enough information in a client’s record to verify dates and activities of contact/services, as well as referrals. Program policies should also mandate that counselors explain to

clients the program’s policies and procedures with respect to record-keeping. Clients should be given written information about their rights and

responsibilities, and appropriate program policies.34 Additionally, a client’s

safety could be seriously jeopardized if information about a client or a client’s file is discussed in a public space.35 Program policies should warn staff to refrain

from discussing client information in public. Program confidentiality policies and procedures with respect to record-keeping will help ensure better safety for clients.

34

Michigan Coalition Against Domestic Violence, Confidentiality Policy Considerations and Recommendations: A Resource Manual for Michigan Domestic Violence and Sexual Assault Programs. 35 Id.

21

RECORD-KEEPING NUTS AND BOLTS A.

File Contents 1. Case Notes Many programs include “case notes” created by domestic violence

counselors in client files. Programs differ on whether and what is kept in “case

notes,” but for confidentiality reasons, case notes must be as limited as possible while still allowing the counselor to work effectively with the client and the help facilitate the coordination of program services for the client.36 Case notes can be check boxes that include only dates of services provided (programs can create and provide counselors with forms) and programs may require counselors to sign and date all case notes.37 For example:

Date:

June 7, 2008

Service Provided: Discussed DV Dynamics X

Discussed Safety Planning Referred to Community Services Discussed Housing Options Other

Time Spent:

36 37

1.5 hours

Id. Id.

22

Counselors should limit themselves to using checkbox forms, which

eliminate the risk that advocates will include too much detail or verbatim

accounts of their interaction with the client.38 Case notes should not include:  Names of clients

 Comments about drug or alcohol consumption, parenting skills, or mental health assessments

These comments could have an adverse effect on the client if the file is

disclosed.39 Learning how to make appropriate case notes is critical because

seemingly innocent information can be used against the client if the file is

accessed by a third party or disclosed in court. Counselors have to be careful

not to record information that could be misinterpreted, misapplied, or even taken out of context, which in turn could have a negative effect on the client.40 For

example, inaccurate records may be used to challenge the credibility of the client or to impeach her/his testimony in a court proceeding. 2. Administrative RecordRecord-Keeping

The recording of a client’s information on forms or in case notes should

be done in a way that is least likely to be harmful to the client if the file is

disclosed.41

3. RecordRecord-Keeping and Documentation for Funder Purposes Programs need records for effective, consistent, and efficient program

administration.42 Programs should have administrative forms, some of which might be placed in an individual client file. Forms may include, but are not limited to, the following:43

38

Battered Women’s Justice Project (BWJP). Confidentiality: An Advocate’s Guide. Hereinafter, Field, BWJP 2007. Id. 40 Id. 41 Michigan Coalition Against Domestic Violence, supra. 42 Field, Julie, BWJP 2007, supra. 43 Id. 39

23

 Third party limited release forms

Shelter Files May Include:

 Emergency contact information



necessary for

 Waivers to release programs from liability if property

intake forms

is lost or stolen

 Acknowledgements of receipt of program policies.

Limited information



Program or shelter logs

4. RecordRecord-Keeping for Shelter Programs Shelter programs usually require additional

policies, procedures, and documentation for clients

because they provide housing as well as services.44

Shelter records should be maintained as a separate

file because a client may receive services that do not

• •

Exit forms Chart of shelter staff, which rooms are filled, and any special instructions for the day

include shelter.45 Shelter programs should only keep

the information that is necessary because of the particular requirements of communal living.46

Information such a client’s compliance with shelter rules or interactions

with other clients residing in the shelter should be kept in a shelter log and

destroyed when no longer needed for program purposes or when the victim has exited the shelter.

5. Document or Property Storage Request by Clients Program policies and procedures may allow clients to store personally

identifying documents with the program for safekeeping.47 Clients may request the storage of documents such as social security cards, passports, or driver’s

licenses. The documents should not be placed in the case file, but rather in an

alternate secure location that the client can access. These documents must be

44

Id. Id. 46 Michigan Coalition Against Domestic Violence, supra. 47 Battered Women’s Justice Project, supra. 45

24

returned to the client whenever she/he requests them or when she/he leaves the program.

B. Corrections to File Content Programs should have policies in place that allow for file corrections

and/or changes when requested by a client or his/her counselor.48 Counselors should be able to correct mistakes or inaccuracies as necessary. The policy

should be broad enough to allow for corrections, changes, and even deletions if entries in the files are incorrect.49 Authorized program staff (e.g., counselors

working with the clients) should be able to remove any materials,

documentation, and case notes prepared by someone not authorized to do so and destroy them.

A client can review his/her file whenever she/he requests to do so.

Counselors should prepare to handle requests for deletions or removal of

information by the client if she/he believes that they are inaccurate, irrelevant, outdated, or incomplete.50 If changes are agreed upon by both the counselor and client, the counselor should make the correction. If they are not agreed upon, a program supervisor could mediate the disagreement and make or

decline the proposed corrections. A notation should be made in the file of what was done.

A program file should never be altered or destroyed if the counselor or

program has been or anticipates being served a subpoena or court order to

produce the file. If the counselor is subpoenaed, she/he should immediately

discuss the appropriate response (including filing a motion to quash) with the appropriate person in the program (e.g., executive director or program

director).51

48

Field, Julie, BWJP 2007, supra. Id. 50 Id. 51 Michigan Coalition Against Domestic Violence, supra. 49

25

ACCESS TO CLIENT FILES A. Custodian of Records Programs should designate a custodian of records who will ultimately be

responsible for the program’s compliance with record-keeping and confidentiality policies, the maintenance and security of the records, and responding to record subpoenas.52 The executive director or program director is usually given this

responsibility. A backup custodian should be designated in the event that the

primary custodian is absent for a prolonged period of time.53 Files should never be removed from the domestic violence program facility if at all possible, or, if they must be, then removal should not be done without the prior written authorization of the custodian.

B. File Access Policies and Authorized Use Program policies should outline who may have access to client

information and files. Program staff not working directly with the client may have access to client files with permission of the appropriate program supervisor.54 Only authorized staff (e.g., the staff person working with the client or staff

person who is granted authorization by the program supervisor) should have access to the case files to review the file and/or make notations. Programs

should have specific policies and protocols for volunteers and students working as counselors. File entries could be made by volunteers and students, but

should only be made under the supervision of the staff person with the authority to write in the case file.55

1. Board Members Board members should never have access to case files or program

records that contain individual, identifying information, except in specific 52

Id. Id. 54 Field, Julie, BWJP 2007, supra. 55 Id. 53

26

situations where the disclosure has been authorized by the client or as deemed appropriate by the executive director and the program’s legal counsel (e.g.,

where a client has sued the shelter and disclosure is necessary for the program

to adequately defend itself).56 In any event, each board member should sign an agreement to maintain confidentiality of program and/or client information to which they have even limited access. 2. Funders and Researchers Funders and researchers may have access only to non-identifying,

aggregate statistical information. Even then, the researcher should be required to sign a confidentiality agreement as an added protection.57 3. Program Clients Program clients are entitled to view and photocopy their records. The

program policy should allow access to files under reasonable circumstances.58 Program policies should specify:

 When the file is available (e.g., specific hours);

 Whom other than the client must be present;  The review process; and

 Who bears the cost for copying of records. Appropriate notices and waivers should be signed before any parts of the

file are copied or shared with the client.59 If the client chooses to copy her/his

file, the counselor should inform her/him of the risk involved if this file is shown to a third party (e.g., friend or relative). If the third party does not have

testimonial privilege protection the fact that the file contents are viewed by the third party could void the privilege entirely, and lead to the case file being disclosed in a judicial proceeding.60

56

Id. Id. 58 Michigan Coalition Against Domestic Violence, supra. 59 Id. 60 Id. 57

27

C. Internal Communications A program’s record-keeping and confidentiality policy should include

protocols for internal communications between staff regarding clients. Internal

communication should be verbal and limited to discussing essential information regarding a client with the staff person who is responsible for working with that particular client. The communication should be done in private.61 If verbal

communication is not a viable option, policies should state that communications should be using the method that is most protective of confidentiality and privacy and meets the program purpose (e.g., a post-it note can be used to convey the

location of a client in the shelter so an advocate coming on duty can find her and then shred the post-it note once the information has been communicated). Any written information about a client that is made should be factual rather than

evaluative and interpretive.62 Programs should destroy memos after enough

time as lapsed to communicate the information. D. Electronic Records

Some programs use computer systems for record-keeping purposes.

Programs should ensure that computerized records and other information

related to the client stored on the computer are password-protected and that the data is accessible only to staff members and that any computers that contain personally identifying client information are not connected to the Internet.63 Program policies must mandate protections when using email.64

Confidentiality of information can be compromised when there are shared email accounts and access codes. For safety reasons, counselors and other staff

members should be instructed not to discuss clients’ cases or to communicate with clients about confidential matters electronically.

61

Id. Id. 63 Id. 64 Id. 62

28

Like paper files, computer files can be ordered to be disclosed in a judicial

proceeding. Additionally, new technology makes sharing files electronically extremely dangerous. Closed networks do not guarantee the integrity of a

client’s file. Computer hackers pose challenges to programs that are networked or have access to the Internet.65 Protected passwords give programs some

defense. If possible, a computer that does not have access to the Internet could be used as a host for sensitive information. A computer-generated or electronic record may continue to exist on the computer’s hard drive even if the records appear to have been deleted from a system or disk. E. Destruction of Case Files In addition to having a policy in place for the maintenance of records,

programs should also include a provision for the planned, periodic destruction of records. Counselors, program staff, and clients should be well informed of this policy.66 Before developing this policy, programs should consider the

requirements of funding sources, program liability concerns, and continuity of care.67 All staff should follow this written policy before destroying or purging

records. Any destruction of records should occur under the supervision of the program director of her/his designee.68 If there is a subpoena or threat of

subpoena, the process of destroying and purging of those specific files should not occur.69

When a client is no longer receiving services from the program, the

program should close the file. The file should be cleaned out and only

information essential to funders, or program liability issues, should be kept.70

Closed files should be kept separate from current case files. The closed files

should be kept in a locked file cabinet or secure facility until the file is destroyed 65

Michigan Coalition Against Domestic Violence, supra. Id. 67 Field, Julie, BWJP 2007, supra. 68 Id., supra. 69 Id. 70 Forms to keep include exit forms, release forms, other forms necessary for program liability purposes, and other documents required by funders. Id. 66

29

in accordance with the retention and destruction policy.71 Part of the exit

process with the client should include advising the client of when the file will be destroyed and the client should be offered her/his records before they are

destroyed. The client should have the ability to request the files any time before the proposed destruction date.

F. Suggested Forms to Limit Program Liability It is recommended that programs have the following forms on file:72 Release of Information

Signed by the client for specific purposes, such forms allow the release of particular information to certain persons for a restricted period of time. Waivers

Signed by the client, such forms release the program from liability for loss of

personal property and/or injury to the client or others, including her/his children. Permission Permission Forms

Signed by the client on behalf of her/his children, these forms give program staff permission to have children participate in program activities.

Release Allowing Notification of Family

Signed by the client, this form permits program staff to notify a client’s

designated family member(s) (not the batterer) in the event of a specified emergency.

Acknowledgment of Receipt of Rules and Program Confidentiality Policies

Signed by the client, this form documents that the client has received program and/or shelter rules and policies.

71 72

Id. Id.

30

G. Model Confidentiality Program Policy Outline The following is a model outline for a program’s Confidentiality Policy:73

I. II. a. b. III. a. b. c. IV. V. VI. a. b. c. VII. a. b.

73

31

Program Statement of Confidentiality Definitions Confidential Client/Counselor Communications Confidential Program Communication Access to Client Files Staff Access Client Access Board Member Access Content of Client Files Maintenance/Destruction of Client Files Release Information Client Disclosure (limited release to third party) Subpoenas/Search Warrants/Arrest Warrants Telephone Communication Appendices Laws Contact information for Executive Director, Program Legal Counsel, Board President, Law Enforcement, etc.

Adapted from the Pennsylvania Coalition Against Domestic Violence policy drafted for Pennsylvania programs.

Chapter Five Mental Health Professionals MENTAL HEALTH PROFESSIONALS’ TESTIMONIAL PRIVILEGE Domestic violence programs often employ domestic violence counselors

who also qualify as mental health professionals under D.C. law.74 Mental health

professionals hold a testimonial privilege in the District.75 This chapter outlines the statutory exceptions to the mental health privilege as well as the recordkeeping obligations of mental health professionals. DEFINITIONS The following definitions apply in the D.C. law regarding mental health professionals’ testimonial privilege:76

“Mental Health professional” means any of the following persons engaged in the provision of professional services: (a) (b) (c) (d) (e)

A person licensed to practice medicine A person licensed to practice psychology A licensed social worker A professional marriage, family, or child counselor A rape crisis or sexual abuse counselor who has undergone at least 40 hours of training and is under the supervision of a licensed social worker, nurse, psychiatrist, psychologist, or psychotherapist (f) A licensed nurse who is a professional psychiatric nurse (g) Any person reasonably believed by the client to be a mental health professional within the meaning of subparagraphs (a) through (f) of this paragraph

“Client” means any individual who receives or has received professional services from a mental health professional in a professional capacity. “Disclose” means to communicate any information in any form (written, oral, or recorded). “Group session” means the provision of professional services jointly to more than one client in a mental health facility.

74

D.C. ST § 7-1201.01 (11) D.C. ST § 14-307 76 D.C. ST § 7-1201.01 75

32

(contd.)

“Mental health facility” means any hospital, clinic, office, nursing home, infirmary, provider as defined in § 7-1131.02 (27), or similar entity where professional services are provided. “Personal notes” means mental health information regarding a client which is limited to: (a) Mental Health information disclosed to the mental health professional in confidence by other persons on condition that such information not be disclosed to the client or other persons (b) The mental health professional’s speculations “Mental health information” means any written, oral, or recorded information acquired by a mental health professional while attending a client in a professional capacity which: (a) Indicates the identity of a client (b) Relates to the diagnosis or treatment of a client’s mental or emotional condition

WHO HOLDS THIS TESTIMONIAL PRIVILEGE? Licensed social workers employed by domestic violence programs hold

this privilege. For instance, this privilege can be claimed if a client comes to a program and consults a counselor who is a licensed social worker for the

purpose of receiving a diagnosis or treatment.77 In recent years, the statute has

been amended to include rape crisis or sexual abuse counselors who must meet certain supervision requirements to qualify for the mental health privilege.78

Similar to the domestic violence counselor privilege, a client or the client’s

legal representative may provide consent to waive the privilege.79 The mental

health privilege also protects information obtained from the client’s family or from other persons.80

LIMITATIONS TO THE PRIVILEGE Mental Health Information can be disclosed in a court proceeding under

the following circumstances: 77

D.C. ST § 7-1201 (9)(B) D.C. ST § 7-1201 (11)(E) 79 See D.C. ST § 14-307 (a) 80 See Id. 78

33

A. Criminal Criminal Cases and in the Interest of Public Justice The mental health counselor privilege does not apply to evidence in

criminal cases if the defendant is charged with death or inflicting injury on a

person, or if the evidence is related to the mental competency or sanity of a

defendant if the defense of insanity is raised.81 Furthermore, in criminal cases,

the disclosure might be determined as necessary in the interest of public justice. B. Mental or Emotional Condition is an Element of a Claim or Defens Defense e in a Civil or Administrative Proceeding

Mental health information may be disclosed in civil or administrative

proceedings if any party initiates the mental or emotional condition or any aspect of the condition as an element of the claim or defense.82 This exception tends

to be the most heavily relied upon in domestic violence cases. Under this

exception, if a domestic violence counselor also qualifies as a mental health professional, the mental health information of the client is in jeopardy of

disclosure. The information includes any written, oral, or recorded information that has been acquired, including the identity of the client and diagnosis or

treatment. However, programs should not assume that disclosure is required in a custody case. Mental health records are not automatically admissible in

custody actions. Further, programs that receive VAWA funds may be prohibited from disclosure even under those circumstances.

C. Client Provides Written Disclosure Authorization The client may provide the mental health professional or program with

written authorization consenting to the disclosure of confidential mental health information. If the client is under the age of 18 but above the age of 14, the

disclosure authorization requires the written authorization of both the client and

the client’s parent or legal guardian. If the client is under 14, the parent or legal 81 82

D.C. ST § 14-307 (b)(1), (b)(2) D.C. ST § 7-1204.03

34

guardian authorizes the disclosure. However, if the parent does not consent to

the client’s receipt of services, the client can consent to the receipt of services in writing without the authorization from the parent or legal guardian.83 a. Scope of Written Authorization The written authorization must specify the following: the nature of the

Information to be disclosed, the recipient of the information, and the purpose for which the information will be used at the time of the disclosure and in the

future.84 The forms must also be signed by the client/authorized individual and

expire within 60 days from the date of authorization.85 In addition, a copy of the authorization should be provided to the client and the person authorizing the

disclosure, should be included in the client’s record.86 Programs that employ

mental health professionals must ensure that release forms provided to the clients of these employees satisfy the disclosure form requirements of this statute.

b. Advising the Client of Her/His Disclosure Rights The mental health professional must also advise the client of her/his right

to review the mental health information as well as the client’s right to revoke the disclosure consent.87

c. Client’s Right to Revoke Authorization of Disclosure The client has the right to revoke the authorization by providing a written

revocation to both the recipient of the disclosure and the mental health

professional. The revocation is effective upon receipt; therefore, no mental

health information can be disclosed upon receipt. If mental health information

83

D.C. ST § 7-1202.5, D.C. ST § 7-1202.01 D.C. ST § 7-1202.02 (a)(1) 85 D.C. ST § 7-1202.02 (a)(4) and (5) 86 D.C. ST § 1202.02 (c) 87 D.C. ST § 7-1202 (a)(2) and (3) 84

35

was already disclosed prior to receipt, then that mental health information could be used for the purposes stated in the written authorization.88 d. ReRe-Disclosure of Mental Health Information Mental health information that was authorized for disclosure by a client

cannot be further disclosed to another recipient without written authorization by the client.89

PROGRAM AND MENTAL HEALTH PROFESSIONAL DISCRETIONARY DISCLOSURES AND DISCLOSURE LIMITATIONS

A. Emergency Disclosures of Client Mental Health Information If the mental health professional reasonably believes that the disclosure

is necessary to initiate or seek emergency hospitalization, or to protect the client or another individual from a substantial risk of imminent and serious physical injury, she/he may disclose mental health information to the client’s spouse, parent, or legal guardian; a duly accredited officer or agent of the District of

Columbia in charge of public health; the Department of Health; a mental health provider; law enforcement or an intended victim.90 This is similar to the

domestic violence counselor privilege to some extent. However, the counselor privilege limits the disclosure to law enforcement.

Mental health information disclosed to the Metropolitan Police

Department (MPD) shall be maintained separately and shall not be made a part of any permanent police record.91 However, further disclosure can be made by the MPD if the disclosure is court-related.92

B. Mental Health Professionals’ Authority to Limit Authorized Disclosure 88

D.C. ST § 1202.04 D.C. ST § 7-1202.03. 90 D.C. ST § 7-1203.03(a). 91 D.C. ST § 7-1203.03 (b) 92 Id. 89

36

Mental health professionals may limit disclosure or refuse disclosure if

she/he reasonably believes that it is necessary to protect the client from

substantial risk of imminent psychological impairment or serious physical injury. The mental health professional must notify the client who authorized disclosure in writing and state the reason for the refusal or limitation.93 The limitation or

refusal of disclosure by the mental health professional does not apply to disclosure in a civil or administrative proceeding.94

C. Disclosure for Research, Auditing, and Program Evaluation Similar to the domestic violence counselor privilege, programs employing

mental health professionals may disclose information for statistical data, audits,

and evaluations. This information cannot include identifying client information or disclose client identify in any manner.95 COURT RECORD CLIENT ANONYMITY A victim, victim’s representative, or any other party in a civil, criminal, or

distractive action in which mental health information has been or will be

disclosed has the right to ask to protect the anonymity of all of the parties.96 COURT RECORD-KEEPING FOR MENTAL HEALTH PROFESSIONALS: NUTS AND BOLTS Program policies and procedures should follow the best practices

outlined in Chapter 4 of this manual, as well as encompass practices that are

mandated by the District’s law for mental health professionals employed by the program.

A. File Notations When a mental health professional discloses information with the

authorization of the client or due to court action, a notation must be entered and 93

D.C. ST § 1202.06 (a)(1) and (2). D.C. ST § 1204.03 95 D.C. ST § 7-1203.05 96 D.C. ST § 7-1204.05 94

37

maintained within the victim’s mental health information record.97 The notation

must include the date of the disclosure, the person who received the disclosed information, and a description of the contents of the disclosure. B. Personal Notes

If a mental health professional makes personal notes regarding a client,

such personal notes should not be maintained as a part of the client’s record of mental health information. Access to the personal notes must be strictly and

absolutely limited to the mental health professional and should not be disclosed except if litigation is brought by the client against the mental health professional on the grounds of professional malpractice.98 C. Client File Access Programs and mental health professionals should maintain client files

and records of mental health information in a secure manner.99 A program or mental health professional should permit any client, upon written request, to

inspect or copy her/his file or record within 30 days from the date of the receipt of the request.100 The program or mental health professional can limit the

disclosure of the client’s mental health information if she/he believes that it is

necessary to protect the client from substantial risk of imminent psychological

impairment or imminent and serious physical injury.101 The program or mental

health professional should notify the client if access is denied or not granted in full.102 The client has the right to institute a legal action against the mental

health professional or program to compel access to all or any part of the client’s record.103

97

D.C. ST § 7-1201.04 D.C. ST § 7-1201.03 99 D.C. ST § 7-1206.01 100 D.C. ST § 7-1205.01 101 D.C. ST § 7-1205.02 102 Id. 103 D.C. ST § 7-1205.04 98

38

D. Right Right to Correct Information A client has the right to correct information. The client has 15 days after

the date of file or record access to submit a written amendment of reasonable length to the mental health professional.104 Upon receiving the request, the

program or mental health professional should amend the client’s mental health

information record in accordance with the proposed amendment; or include the proposed amendment as part of the client’s mental health information record. The client has the right to either withdraw the proposed amendment of file a more concise statement of disagreement as a substitute for the proposed amendment.105

Once the amendment is adopted, the program or mental health

professional must provide the amendment to the recipients of the client’s mental health information if that information was disclosed prior to the revisions.106 E. Unauthorized Disclosure In addition to D.C. law, social workers are guided by the National

Association of Social Workers (NASW) Code of Ethics. The Code states that

social workers may disclose confidential information when appropriate with valid consent from a client or person legally authorized to consent on behalf of a

client.107 In addition, the Code permits disclosure when necessary to prevent

serious, foreseeable, and imminent harm to a client or other identifiable person. Social workers should disclose the least amount of confidential information

necessary to achieve the desired purpose. Only information that is directly

relevant to the purpose for which the disclosure is made should be revealed.108

104

D.C. ST § 7-1205.05 Id. 106 Id. 107 NASW, 2000, § 1.07. 108 Heer, Christine, Esq., LCSW, DVS. Ethical Issues in Domestic Violence, Social Work Today, 6. Retrieved 4/25/07 from http://www.socialworktoday.com/archive/swnov2006p42.shtml. (2006). 105

39