Confidentiality is one of the basic tenets of social work practice. When a client seeks treatment from a social worker there is often an assumption by the client, and sometimes by the social worker too, that anything discussed between the client and social worker will be kept confidential, as will any written records relating to the client/worker relationship. But in fact such confidentiality had no basis in Connecticut statute until 1992 when NASW/CT introduced and successfully passed the Social Work Confidentiality Act (section 52-146q of the Connecticut General Statutes). Even with the passage of this law there are limitations to the confidentiality of social work records in Connecticut. What follows is a description of the key provisions of the statute including the limitations and exemptions to the law.
Who Has Confidentiality? Any individual who consults a social worker for the purpose of evaluation or treatment can claim confidentiality of their records (see below for others who are authorized representatives). Additionally, the law states that any individual who reasonably believed they are being treated by a licensed clinical social worker (LCSW) may claim confidentiality of their records.
LCSW’s and social workers under the supervision of a LCSW also may invoke the right of confidentiality of client records. For the remainder of this article the term social worker will mean an LCSW or a social worker under the supervision of a LCSW unless otherwise indicated by specifically stating “licensed clinical social worker” or “LCSW”.
What Communications and Records are Covered? All oral and written communications and records thereof relating to the evaluation and treatment of the client(s). This applies to communications between the client and the social worker, between a member of the client’s family and the social worker, and between the client or a member of the client’s family and an individual participating under the supervision of a licensed clinical social worker in the accomplishment of the objectives of evaluation or treatment. The confidentiality applies wherever the communications took place.
Who Are Authorized Representatives to Assert or Waive Confidentiality? The client holds the right of confidentiality and the right to waive their confidentiality. In the event that the client is deceased the client’s administrator or executor holds the confidentiality and in the absence of such a fiduciary, the next of kin. If the client has been declared incompetent to assert or waive their confidentiality a guardian or conservator who is duly appointed to act for the client holds the right of confidentiality. The statute does not specifically address children who are clients however one can make a case that under the statute if the child can understand their rights to confidentiality they should be able to invoke those rights and if not that it would fall to the next of kin or a duly appointed guardian. Our readers may want to seek the advice of an attorney when dealing with confidentiality questions regarding children.
How Is Consent Given and Withdrawn? Under this statute consent is to be given in writing by the client or their authorized representative. Any consent given shall specify the individual or agency to which the communications and records are to be disclosed, the scope of the communications and records to be disclosed, and the purpose of the disclosure and the expiration date of the consent. A copy of the consent form must accompany any communications and records disclosed.
The client or their authorized representative may withdraw any consent form at any time by written notice to the social worker with whom or the office in which the original consent was filed. The withdrawal of the consent does not affect communications and records disclosed prior to notice of the withdrawal, except that such communications and records may not be re-disclosed after the date of the notice withdrawing consent.
What Are the Exemptions to the Statute? The statute specifies six specific areas of exemption to the confidentiality of communications and records. Some of these are very clear-cut and others are based on the social workers professional judgment. The exemptions to follow serve the dual purposes of allowing the client or their authorized representative to breach confidentiality in limited circumstances as well as protecting the social worker in specific circumstances where compelling professional reasons exist for disclosing of confidential information.
Communications and records may be disclosed to other individuals engaged in the diagnosis or treatment of the client or may be transmitted to a mental health facility to which the client is admitted for diagnosis or treatment if the social worker in possession of the communications or records determines that the disclosure or transmission is needed to accomplish the objectives of diagnosis and treatment of the client. This is also the case in situations where the social worker, in the course of evaluation and treatment of the client, finds it necessary to disclose the communications and records for the purpose of referring the person to a mental health facility. In such cases the client is to be informed that the communications or records have been disclosed and/or transmitted.The intent of the above section is to allow information to flow between mental health care providers in those circumstances when the client’s need for diagnosis and treatment is tantamount. An example, from an actual case reported by a member, is a client who was brought to the emergency room of a hospital and had the social workers business card on them. The emergency room psychiatrist sought information from the social worker and under this section of the statute the social worker was able to provide the necessary information for the treatment of the client. While this exemption may seem fairly broad in fact it should be used only where the social worker determines that the need to disclose information is of an immediate nature such that they do not have time to acquire the client’s consent or based on the client’s current condition consent is not feasible and timely treatment is required.
Communications and records may be disclosed when a social worker determines that there is substantial risk of imminent physical injury by the client to themselves or others. It is important to note that unlike some other professions, the social work statute only applies to physical harm to person(s), not to property.
Communications and records shall be disclosed when such disclosure is mandated by statute, such as mandatory reporting of child abuse or neglect or mandatory reporting of elder abuse or neglect.
Communications and records made in the course of a court ordered evaluation may be disclosed in court proceedings where the client is party to the proceedings provided that the court finds that the client has been informed in advance that their communications and records may be disclosed. Furthermore, the communications and records will be admissible only on issues involving the client’s mental condition.
Communications and records may be disclosed in a civil proceeding in which the client introduces their mental condition as an element of their claim or defense or if the client is deceased, introduction of the client’s mental condition by another party. For this exemption the court must determine that the importance of the interests of justice is greater than protecting the relationship between the client and social worker. Amongst those areas covered by this exemption is the right of a social worker to disclose information in their own defense when the client (or in case of deceased the representative of the client) is bringing a civil action against the social worker and the client’s mental condition has been introduced as part of the civil action.
If a social worker makes a claim for collection of fees for services rendered, the name and address of the person and the amount of the fees may be disclosed to individuals or agencies involved in such collection, provided that written notification of the disclosure is sent to the client at least 30 days prior to disclosure. In the case where a dispute arises over the fees or additional information is needed to substantiate the fees or claims, the disclosure of further information shall be limited to the following: (A) That the person did in fact receive the services of the social worker, (B) the dates and duration of such services, and (C) a general description of the types of services. For example, this section would allow a social worker to turn over an unpaid claim to a collection agency. It does not restrict the disclosure of information where a client has consented to disclosure by signing an insurance claim form (there are arguments for limiting disclosure for insurance claims but this is not one of them).
In addition to the Connecticut Statute, social workers are guided by the NASW Code of Ethics, which members of NASW have agreed to abide by, and non-members should abide by as the State of Connecticut’s Department of Public Health uses the Code of Ethics for guidance when investigating complaints against social workers. The Code of Ethics extensively addresses confidentiality in section 1.07 Privacy and Confidentiality as well as citing confidentiality issues in section 1.08 Access to Records, section 2.02 Confidentiality and section 5.02 Evaluation and Research. If you do not have a copy of the NASW Code of Ethics, revised in 1999, you may download a copy off of the national NASW web site,www.socialworkers.org or you can be linked through the NASW/CT web site, www.naswct.org or if you do not have access to the internet you may request a single copy from the chapter office by calling (860) 257-8066.
The information presented here is based on current Connecticut Statute and may be subject to change. This fact sheet is for informational purposes only and should not be construed as legal advice.