Counseling Today, Ethics Update

Obligations for protecting the confidentiality of the deceased

David Kaplan October 7, 2006

This is the 10th and final interview in a series of columns that have focused on new aspects of the revised ACA Code of Ethics. The previous nine updates, as well as the entire text of the ACA Code of Ethics and additional resources, are available on the ACA website at www.counseling.org/ethics. For this final update, ACA Chief Professional Officer David Kaplan interviewed Judy Miranti and Michael Kocet, two members of the ACA Ethics Code Revision Task Force.

B.3.f. Deceased Clients

Counselors protect the confidentiality of deceased clients, consistent with legal requirements and agency or setting policies.

David Kaplan: Why did the Ethics Code Revision Task Force feel a need to add a standard (B.3.f.) addressing the confidentiality of a deceased client?

Judy Miranti: I don’t think we had any initial intent to say, “We’re going to protect the confidentiality of our clients in death.” It evolved as we focused on client welfare. And it turned into a very unique part of the revised ethics code.

Michael Kocet: The task force felt that addressing the welfare of a client means protecting confidentiality in perpetuity, and, therefore, confidentiality should not end when a client passes away. There may be circumstances where an individual does not want information shared, even upon their death, and so a counselor needs to make a reasonable assessment of when and where it’s appropriate to maintain that confidentiality. A person’s death should not mean that any and all information about that person in the counseling relationship is open to public scrutiny or discussion.

DK: Let’s look at a scenario. A 22-year-old client commits suicide. His mother approaches you and says, “I need to know if my son really hated me when he killed himself.”

JM: This is a difficult situation, but the welfare of the deceased client is paramount.

MK: I agree. The welfare of the client is still existent, even after death. The bottom line comes down to the issue that we still have to protect the son’s privacy, even after he dies, and to make our best clinical judgment in terms of what he would want done with the information. If we make a determination that the client would give consent to the requested information being shared with his mother and we have some prior documentation to that effect, then I would go ahead and respond to the mother. But if there is uncertainty, I would keep the client’s statements about his mother confidential.

DK: So are you essentially saying that whatever rules applied while the client was alive would also apply after the client died?

JM: Yes.

MK: Here is a scenario I use when I train counselors. An elderly client dies and the adult children start a legal court fight over the estate. One daughter says, “Dad went to counseling, so he must have been crazy. I’ll check with his counselor and look at the counseling records. It’ll prove that dad didn’t know what he was talking about and that he was not in his right mind when he left the house to my brother.” We would honor the counseling relationship even after the client was deceased and protect the privacy and confidentiality of the father by refusing the daughter’s request to review her father’s case notes.

DK: Let’s look at a scenario that involves positive sentiments. A client dies tragically and before their time. During the counseling, the client said some very loving and heartfelt statements about family members. Would it be appropriate for the counselor to contact the grieving family and say, “I’m really sorry to hear what happened. I just wanted to let you know that your partner” or your father or your mother “had some very loving things to say about you”?

JM: Your professional judgment is going to come into play. You don’t have to divulge all the particulars. If the client said some loving things about family members, I think it would be a comfort to them in their grief to know that.

DK: What is the role of informed consent in protecting the confidentiality of a deceased client?

MK: It is now important to build the concept that confidentiality does not stop upon the death of a person into the informed consent process.

DK: Is it appropriate for a counselor to go to the funeral of a deceased client who has died unexpectedly?

JM: The counselor needs to ask herself or himself the question: What would be the purpose of going to the funeral? 

MK: Based on an honest appraisal of that question, the counselor would have to assess whether going to the funeral would be beneficial or harmful to the memory of the deceased client. In that respect, it is no different than evaluating the beneficial versus harmful aspects of attending a client’s wedding or graduation ceremony.

If your professional judgment clearly indicates it would be beneficial, you can choose to go to the funeral service. It may be prudent to sit in a chair off to the side where you don’t have to necessarily interact with others. You can pay your respects to the client and then leave without having to interact with too many people. If someone asks you how you know the deceased, you can simply state that you worked with them professionally. 

On the other hand, if the client’s family clearly knew about and might have even been involved in the counseling at times, you might be more active in paying your respects if there is reason to believe that the family would be comfortable with and comforted by your presence.

DK: Can the case history of a deceased client be used when teaching classes or as an example during a professional presentation?

JM: The same rules apply as to a living client. You can use case examples for educational purposes as long as identifying information is removed so that the client cannot be identified. 

DK: What should be done with the records of a deceased client?

MK: Once again, the same rule applies as for a client who is living. The ACA Code of Ethics does not state a specific length of time to keep records. However, many state licensing laws require that records be kept for seven years. Therefore, seven years is a reasonable amount of time to keep the file of a deceased client.

DK: Speaking of records, what is the appropriate way to react to a subpoena for information from the file of a deceased client?

MK: If I made a professional judgment that divulging information could in any way harm my deceased client, I would, with the assistance of the lawyer provided by my liability insurance company such as the ACA Insurance Trust, decline to provide information.

JM: At the point the court indicated that I had no choice but to comply with the subpoena, I would give the minimal amount of information possible. I would protect the client’s confidentiality as much as possible, even after death.

DK: To wrap up, what would you say is the key to Standard B.3.f. and protecting the confidentiality of a deceased client?

MK: That the counseling relationship exists even through death. We continue to honor that relationship after a client dies. As such, whatever statements in the ACA Code of Ethics applied when the client, supervisee, student or research participant was alive continue to apply after they are deceased. If a counselor would not disclose information when a client was alive, they should not disclose that information in their death.

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