Therapy Toronto Free Directory

Psychotherapy in Ontario:

How Confidential is my Therapy?

Limitations to privacy in counselling and health therapies due to communications technology and legal issues.

Written in May, 2010 by Beth Mares, clinical member, Ontario Society of Psychotherapists, and IT professional Mike Mares. The information about legal matters applies specifically to Ontario, Canada, not necessarily to other provinces and other countries.

This is general information and is correct to the best of our knowledge at the time of writing, but we have no special expertise in the law or cybersecurity, both of which are continuously evolving.

Legal limitations on confidentiality

Any reputable therapist wants to protect your privacy, and regulated health professionals and social workers are obligated to do so by law; with some exceptions, which you might want to know about.

Court order
A court can order a counsellor or therapist to testify about what a client told them and/or produce session notes. The professional may protest, and may hire a lawyer to represent him, but the judge's decision prevails. Such notes have been used against psychotherapy clients in custody cases. Regulated health professionals and social workers are required to keep notes about counselling sessions for 7 years. Some therapists make a separate set of temporary notes for themselves dealing with more personal session contents, countertransference issues, etc., and so far as I am aware, these do not have to be kept and potentially produced. Unregulated psychotherapists and counsellors such as myself are not required to keep notes; however psychotherapy has recently been legislated a "controlled act" in Ontario, and it is expected that non-regulated psychotherapists (such as the members of the Ontario Society of Psychotherapists) will be regulated under the health professions act by 2012 or 2013. It is not yet known what services non-regulated counsellors will be allowed to provide after that.

Fink rules
Practitioners regulated under the health professions act (doctors, nurses, psychologists etc.) are obligated by law to report any health professional said to have engaged in professional misconduct to the appropriate college, even when this information is obtained in a confidential therapy session. Social workers, who are regulated under a separate act, are required to report to their own college any alleged professional misconduct by a fellow social worker. (The professionals do not report the name of the client / patient unless the client gives consent.) So if you want to talk confidentially about your flirtation with your physiotherapist, best to go to a social worker or an unregulated psychotherapist--while such still exist. In case you didn't realize, anything remotely sexual between a health practitioner or social worker and a client is verboten--even after the therapeutic relationship has ended, in most cases. (I wonder if they have the same rules in England, and if Stephen Hawking's nurse was drummed out of the profession for marrying him.) Rules about dual relationships have been developed for the protection of clients, which is also the rationale for fink rules, but some might consider some of these rules, let's say, overprotective.

Child abuse
Anybody, professional or not, who has reason to believe that a child is being or has been abused as defined by law--which may be different from your own definition--is required to report it to the Children's Aid. So if you're looking for help to stop abusing your children you're in a bit of a catch-22. Perhaps your best bet would be to get your help from an institution that might have enough influence to help you to keep your children and prevent an arbitrary decision from being made, rather than to go to a counsellor who works alone.

Information sharing

Where health care providers operate as a team, they usually have a policy of sharing information. This should be explained to you at the outset, and you will probably be asked to give written permission. However, if you have been waiting for a program for months and you find that out on your first day, you might have a tough choice. Also, most social workers are employed by an institution in which people other than your counsellor, for example, your counsellor's supervisor, may have access to information about your sessions. Doctors' records can be audited. Of course, your counsellor's supervisor and the College of Physicians and Surgeons auditors have confidentiality protocols to follow. There is generally less sharing of information if your therapist is working alone, as most members of the Ontario Society of Psychotherapists are. We are required to have supervision (typically peer supervision), but it would be considered unethical to give names or other potentially identifying information about clients we discuss.

How communications technology can compromise privacy

The continuing evolution of technology has meant that despite their best efforts to safeguard clients' privacy, conscientious therapists might not be aware of all the privacy implications of technologies they use. Therapists' organizations work to keep members informed and protocols up to date. However, therapy clients should be aware of the following.

Without encryption, the email you send your therapist is not secure, and neither is the instant messaging session you have with him. Encrypted emails and chat sessions are much more secure, so long as both parties have encryption and emails are not forwarded to a non-encrypted address, intentionally or accidentally. It is our understanding that Skype services are automatically encrypted. It is possible for both you and your therapist to encrypt your data (or the hard drive, expensive and usually only done by big businesses and institutions). Without encryption, a virus that infects your computer, or your therapist's, can steal any information on it, including any email that has been sent or received; and after a computer is dumped or donated to charity, with everything deleted and the hard drive "wiped clean", anything that has ever been on it can potentially be recovered unless the hard drive is physically destroyed. At the current level of technology it is theoretically possible even for encrypted data to be hacked by someone with sufficient expertise and patience, but in practice it is unlikely to happen. If you have been reading the news lately you will also know that governments have been demanding the codes to enable them to decipher encrypted communications.

The cordless phone you use (or the one your counsellor uses) for your phone sessions is broadcasting a signal that could be picked up by another phone nearby or a primitive listening device; a phone message you leave, or that someone leaves for you, on Bell's Call Answer is stored by Bell; and a cell phone with a message on it can be lost or stolen.

Most of the time we live with all this; but it would be prudent not to use your work email to send anything you wouldn't want your boss to read, or to use any of these technologies to convey information that could get yourself or someone else victimized, blackmailed or incarcerated. It's also OK to ask a therapist you are considering working with about his practices concerning security of confidential information.

If you need more details, go to the Ontario College of Social Workers website, the Ontario College of Physicians and Surgeons website, or sites dealing with cyber security.

Update, Oct., 2011

Fink rules: The fink rule that the new psychotherapists' college has drafted requires psychotherapists to report of misconduct of a colleague only when it looks as though something dangerous is happening. Our guess is that this means something like a suicidal client not being managed in a way that minimizes the risk of suicide.

Beth Mares and Mike Mares work in Toronto, Ontario.

Also by Beth Mares, with help from Mike Mares For psychotherapists: Avoiding ethical traps in the use of technology

Back to home page: Therapy Toronto Free Directory