[Wsssc] FW: Disclosure of Threats of Self-harm

[Joe Holliday]

Colleagues: Bruce Marvin's follow-up on self-harm, below. Joe

From: Marvin, Bruce (ATG) [mailto:BruceM1 at ATG.WA.GOV]
Sent: Monday, February 5, 2018 1:04 PM
To: Joe Holliday <jholliday at sbctc.edu>
Subject: Disclosure of Threats of Self-harm

Joe,

Here is quick follow up on the question at last Friday's meeting about when a counselor can breach client confidentiality in response to a threat of self-harm.

The general rule is that communications between a counselor and a client "necessary to enable the [counselor] to render professional services to [the client]" are confidential.  RCW 18.19.180.  An client's health care information is also protected from unauthorized disclosure under RCW 70.02.020(1).  This confidentiality, however, may be overridden when the client threatens or engages in self-harm.  Under RCW 70.02.050(1)(c) a health care provider "may" disclose health care information without the patient's authorization "to the extent the recipient needs to know the information," if the disclosure is:

To any person if the health care provider or health care facility believes, in good faith, that use or disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public, and the information is disclosed only to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat. There is no obligation under this chapter on the part of the provider or facility to so disclose[.]

(Emphasis added).  In other words, a counselor may disclose a client's health care information without the client's authorization based on a good faith belief that disclosure will prevent a serious and imminent threat to the client, another individual, or the public at large and the disclosure is limited to persons reasonably able to address the threat.  Please note that there is case law holding that health care providers may be found liable for failing to warn third parties who have been threatened with serious or imminent threat by a patient in a confidential treatment setting.  Volk v. DeMeerleer, 187 Wn.2d 241, 275-76 (2016).

The statute governing the practice of counseling contains a similar, but less nuanced provision.  Under RCW 18.19.180(2), a counselor may disclose otherwise confidential communications if the "communication . . . reveals the contemplation or commission of a crime or harmful act[.]"  Case law suggests that the decision to disclose an otherwise confidential communication under such circumstances should be made consistent with the standard applicable to the mental health profession.  Cf. Volk, 187 Wn.2d at 255 (holding the determination regarding disclosure of confidential information should be "informed by the standards of the mental health profession.")

Please have your members give me a call if they have additional questions or concerns.

Bruce

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Unless otherwise specifically indicated, the information contained in this e-mail message is an attorney-client communication and/or attorney work product and is, therefore, intended only for the review and use of the above-named person(s). If you are not the intended recipient of this e-mail, any distribution, dissemination, or copying is strictly prohibited. If you believe you are not the intended recipient, please notify the sender by calling (206) 464-5814.
H. Bruce Marvin
Assistant Attorney General
Education Division
800 Fifth Ave. #2000
Seattle, WA 98104-3188

206 464-5814







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