I woke up a few mornings ago, fumbled for my IPhone to check the ‘urgent’ message flash on its’ screen, and found that Twitter was advising me to protect my privacy. It seems that a virtual bug of some kind exposed their users to hackers by showing passwords in plain text.
Oh, horror! I complied quickly…and you should too Mr. President. Who knows what fake news might be transmitted in your tweets.
I recovered from my cyber-panic rather quickly as a little chuckle came from my inner Bob. None of the social media outlets like Twitter, Face Book, Google+, LinkedIn even existed twenty years ago. My privacy worries in 1998 were more concerned with who might see through our windows with the drapes wide open.
The only thing that I can think of which corresponds with current qualms about privacy was when folks dug deep in the early 1950’s to get a private telephone line so that nosey people might not overhear their conversations on less expensive party lines. My maternal grandfather always had a little quip to offer. When asked how he felt about the lack of privacy on party lines he said; “You shouldn’t go skinny dipping if you’re worried people will see you naked.” That kind of says it all.
Millions of us proudly throw ourselves (wearing-only-a-selfie-smile) into a collective cyber lake showing everyone anything they want to see. Then we gripe about privacy and confidentiality. If transparency is what we want, privacy will be sacrificed. You just can’t have it both ways.
Privacy and Confidentiality; What’s The Difference?
The terms Privacy and Confidentiality are sometimes used interchangeably but there is a distinct difference. Just about everybody has some desire for freedom from public scrutiny. We want to share information deemed private at varying degrees depending on our own boundaries and need for personal space. These are the issues surrounding privacy and confidentiality. So, what is the difference?
- Privacy is the right to be let alone in personal matters and limits public access.
- Confidentiality refers to a state where an expectation of trust is established between parties that information/records will be kept secret within the parameters of their informed, expressed, often written, agreement.
In other words, Privacy is about a person and Confidentiality is about information.
Privacy; From Being Available to Being On-Demand
The fourth amendment to the constitution which secures our right to be free from unreasonable search and seizure is also cited as the basis of our right to privacy. But is a real expectation of privacy even possible in the age of technology? An Op-Ed Piece in the New York Times announced “The End of Privacy” in October 2017. It reminded me of The Times famous article in January 1966 stating that “God Is Dead.” We often rush to sensational observations. Traditional notions of God were changing in the 1960’s and our understanding of Privacy is changing in this era. We are continually evolving.
Several years ago I accompanied a friend to the porch of an elderly gentleman in the remote mountains of Western North Carolina. The man’s son asked us to intervene in a rather sensitive family situation. Mr. Caldwell was nearing 90 and living alone at the cabin in which he had been born. His wife had died many years earlier. One of his seven children lived on a section of land nearby, but worried about his aging father.
Mr. Caldwell refused to have a telephone. When Mathias, the son, contracted with AT&T to install a line, the service man was met at the door with a shotgun aimed at his midsection and orders to “git offa my land”. My friend and I went over to mediate a couple of days later. Steve talked to him about how nice it might be to be able to pick up a phone to call Mathias anytime he wanted to say “Hey” and check up on the grandkids.
Mr. Caldwell seemed to agree and thought that would be a really nice convenience. I asked him if it might be okay to set up another service installation to which Mr. Caldwell said “Hell no!” I responded that I thought he liked the idea of calling up Mathias. He responded that it sure might be nice, but on the other hand, Mathias could also call him up anytime he wanted.
The thought of random telephone ringing and family involvement was like an invasion and “an end of peace and serenity.” Mr. Caldwell died several years later with no telephone but plenty of self-directed privacy. If Mathias and any of the family ever wanted to make contact with him they just made their way to the house.
Our evolution from Mr. Caldwell’s concept of telephone privacy to cellphones becoming a fifth appendage and being always on-call is dramatic to say the least. We have to be reminded constantly to silence or turn them off in churches, businesses and theatres. They are a part of every meal and activity, buzzing and ringing us to respond to a text or pending conversation. We have increasingly accepted and embraced this intrusion. Now, it seems there are concerns that the devices have become addictive. The average American adult spent about 2 hours and 51 minutes on their smartphone every single day in 2017. So much for privacy as we once knew it.
What I’m getting at here is that even though we have every cause to be alarmed at massive amounts of personal information being hacked from our merchants, healthcare and service providers, we have made a choice to provide easy, on-demand, real time access to all of this data. There are a number of ways to protect information stored on smartphones by simply restricting privacy and location settings. You don’t have to share everything on social media outlets like Face Book. You can limit who can see/share your information by deciding who can access it. Privacy should be honored and respected by corporations and by the techno-world. Every effort should be made to continually improve safety of information and to foil hackers. But it is incumbent upon each of us to create our own limits and boundaries as well. Remember what Grandpa said about skinny dipping.
Confidentiality; A Seal of Promise and Trust
Chaplains, Clergy, Attorneys, Social Workers, Substance Abuse Professionals, Therapists and Healthcare Professionals are well instructed in matters of confidentiality. It has become so important that I have started calling the relationship established as The Seal of Confidentiality (like the Seal of the Confessional known to Roman Catholics). All fifty states, the District of Columbia, and the federal government have enacted statutory privileges providing that at least some communications between clergyman and parishioners are privileged. In United States law, confessional privilege is a rule of evidence that forbids the inquiry into the content or even existence of certain communications between clergy and church members. It grows out of the First Amendment to the Constitution. Common law and statutory enactments may vary from place to place.
The ethical principle of confidentiality requires that information shared with a clergy member, healthcare worker, counselor or therapist in the course of the professional relationship or treatment is not shared with others. This principle promotes an environment of trust and reinforces honest and open disclosure by the client, patient or parishioner. Exceptions to confidentiality exist when it conflicts with the professional’s duty to warn or duty to protect. This includes instances of suicidal or homicidal ideation (with plans) as well as child, elder or disabled/dependent adult abuse. All-in-all, there are five generally recognized exceptions to the seal of confidentiality referred to as the Five C’s.
- Consent; A professional may release confidential information with the consent of the patient or a legally authorized designee (parent, guardian, or medical surrogate).
- Court Order; Confidential information can be released upon the receipt of an order by a court of competent jurisdiction. A subpoena may not meet the standard for release in many places.
- Continued Treatment; A clinician may release confidential information necessary for the continued treatment of a patient. This exception is recognized by HIPAA.
- Comply with the Law; A professional may reveal confidential information in order to comply with mandatory reporting statutes as mentioned above (abuse).
- Communicate a Threat; This is known as the Tarasoff Exception to confidentiality. It exacts a professional’s duty to protect others from violence from a client/patient.
We must be ever vigilant and serious in our confidentially sealed relationships. It can be easy to compromise by disclosing information to other interested parties when the situation seems important or worthwhile.
In my role as a Clinical Director at a residential hospital based substance abuse treatment center in North Carolina, I was once faced with the daunting choice of disclosing or not disclosing confidential information to a local chief prosecutor. The attorney and I had a good working relationship and casual friendship. One day he called me at my office to inquire about whether a certain fugitive was a patient in our facility. I responded that due to federal and state confidentiality laws I could not give him that information. Of course he knew this to be true, but continued to press the matter by saying that he could arrest me for not telling him of the persons whereabouts.
I told him that he was putting me in a situation of obstructing justice (by his definition) on one hand or violating federal statute on the other. Either way, I was could find myself behind bars. He was angry when I denied his request saying that he would serve the executive director and me with a subpoena. Then he became furious when I told him that a subpoena was not good enough. Within thirty minutes the prosecutor showed up at the hospital with his document in hand accompanied by several squad cars and a SWAT team.
They forced their way into the treatment center, practically running over the 140 pound middle aged executive director. After a search of all the patients, the suspect was finally found hiding in the cafeteria. Though successful in his endeavor, the prosecutor was fired several weeks later for his violation of federal and state statutes. Neither the director nor I were charged or arrested in the matter. It took a long time to reestablish therapeutic trust with our patients. To say that I take the seal of confidentiality seriously is a gross understatement.
Many of us who serve people in some kind of counseling relationship have established Best Practices that I would recommend to everyone:
- Make sure that any confidentiality forms are properly signed, dated and witnessed according to the requirements of the organization you represent.
- Review the documents thoroughly with the client at least every six months. It is an even better idea to draft a new one if possible.
- Start every session reminding the client of the confidentiality of information he/she is about to disclose.
- Make sure that any kind of disclosure transmitted electronically has a statement of confidentiality attached. Below is a sample of such a statement I use in every email. Feel free to copy it.
This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential, or otherwise legally exempt from disclosure. You are only authorized to read, print, retain, copy or disseminate this message (or any part of it) if you are the named addressee. Please notify the sender immediately either by phone at (your number) or by reply to this e-mail if you have received it in error. Delete all copies of this message if it is not intended for your use.
We All Need Someone in Times of Trouble
Respect for privacy and good confidentiality practices are the basic ingredients of trust which make counseling or other professional relationships work. Police officers need to be able to turn to Chaplains without worry when they share their vulnerability or grief. Folks who struggle with addiction have to be able to disclose the things they have done in secret to a trusted therapist knowing that family members will not be told without informed consent.
When we make sure that these policies and procedures are followed to the letter, our clients will feel safe to come to us with the burdens that weigh them down. Carl Jung went so far as to say that such therapeutic relationships are sacred in nature. And so they are. We have been entrusted with the inner lives of those we serve.