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What is confidentiality?

Confidentiality "implies a relationship between two or more persons in which the information communicated between them is to be kept in confidence." (Austtralian Legal Dictionary)

The need for confidentiality can arise in a number of ways:

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
as a statutory duty governed by professional regulation or a particular legislative scheme.

Ethical duty of confidentiality

Ethical duties of confidentiality usually arise under one of the ethical and conduct frameworks such as codes of conduct, codes of ethics, guidelines or by virtue of membership of a particular profession or professional association. A number of factors will determine whether the confidentiality:

is enforceable or unenforceable
against whom the confidentiality will be enforced
the scope and limits of the confidentiality
the consequences for breach of confidentiality.

The AASW Code of Ethics states:

4.2.5 Information privacy/confidentiality

a) Social workers will respect the right of clients to a relationship of trust, to privacy and confidentiality of their information and to responsible use of information obtained in the course of professional service.
Key issues relating to an ethical duty of confidentiality include:

Are there any community workers who owe ethical duties of confidentiality?
How are those duties owed?
Are those duties enforceable, and against whom?
What are the limits of the duty?
Are there any exceptions to the duty?
What are the consequences of a breach, for the organisation, for the worker?

Conduct requirements

Ethical duties of confidentiality can arise under codes of conduct or by virtue of membership of a particular profession or professional association. The way in which the requirement arises will determine:

whether the duty is enforceable or unenforceable
against whom the duty will be enforced
the scope and limits of the duty
the consequences for breach of duty.

The ACA code of conduct combines a code of ethics along with a code of practice. The ACA code of conduct (practice section) states:

2.3 Confidentiality

2.3.1 Confidentiality is a means of providing the client with safety and privacy and thus protects client autonomy. For this reason any limitation on the degree of confidentiality is likely to diminish the effectiveness of counselling.

2.3.2 The counselling contract will include any agreement about the level and limits of confidentiality offered. This agreement can be reviewed and changed by negotiation between counsellor and client. Agreements about confidentiality continue after the client's death unless there are overriding legal or ethical considerations.
Key issues relating to conduct requirements for confidentiality include:

Are there any community workers who owe duties of confidentiality because of conduct requirements?
How are those duties owed?
Are those duties enforceable, and against whom?
What are the limits of the duty?
Are there any exceptions to the duty?
What are the consequences of a breach, for the organisation, for the worker?

Contractual requirements

Duties or obligations of confidentiality can arise because of contractual arrangements between community organisation and funding body (service agreement), contractual arrangements between community organisation and community workers (employment or volunteer contracts) and arrangements between community organisation/community worker and client (client agreements).

In many cases there may well be more than one basis for confidentiality obligations. For example a community organisation may require that its workers observe confidentiality requirements as well as providing such an undertaking to its clients.

A community organisation may undertake work of a sensitive nature, for example providing support for victims of crime. The community organisation may not employ any professionally qualified staff. Accordingly, its requirement to maintain client confidence can be found in its funding agreement with Government funding bodies, its agreements with its clients and it agreements with employees. Thus, though no codes or legislative standards apply, the community organisation is required to maintain confidence.
Key issues surrounding any contractual requirements for confidentiality include:

Understanding whether any contractual requirements for confidentiality exist and that those requirements be observed
What are the limits and exceptions?
What constitutes a breach of the contractual duty?
What are the consequences of a breach?

Statutory requirements

There are occasions where a duty of confidence is legislative. This is distinct from privacy rights enshrined in legislation. Legislation that contains confidentiality requirements includes the Child Care Act 2002 and the Domestic and Family Violence Protection Act.

The Domestic and Family Violence Protection Act places limits on the publication of proceedings. This ensures that the private nature of the Court hearing is respected after the proceedings.

Key issues surrounding statutory requirements for confidentiality include:

Does your organisation do work in an area of statutory regulation such as domestic violence court support?
If so, what are the limitations placed upon the organisation?
How is compliance with such limits ensured?
How is compliance with such limits reviewed?
Are there policies and procedures that reflect statutory limitations?