Psychotherapy in Ontario:
How confidential is my therapy?
NEWSFLASH! September, 2019: New police powers override privacy
Updated March, 2020
by Beth Mares Registered Psychotherapist and IT professional Mike Mares. This is general information and is correct to the best of our knowledge, but both the law and cybersecurity are continuously evolving.The information about legal matters applies to Ontario, Canada; not necessarily to other jurisdictions.
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.
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 on each session (for 10 years in the case of registered psychotherapists). Unregulated counsellors in private practice are not required by law to keep notes; however they are usually advised to do so for self-protection in case of legal action, and may be required to do so in order to get malpractice insurance.
Police obtaining and sharing confidential information
As of July, 2019 any police officer can demand any confidential record, medical, financial, whatever, of anyone he claims is missing. For a detailed look at some of the implications of this, see Psychotherapist's concerns about new police powers. Also, to give you an idea of the sorts of things that can happen, the Toronto police were handing over confidential mental health information to the US border guards, causing some people to wonder why they were refused entry to the US. After pressure from the Ontario Civil Liberties Association via the Privacy Commissioner, they recently promised to stop doing it, so it was in the news.
Practitioners regulated under the health professions act (psychotherapists, doctors, nurses, psychologists etc.) are obligated by law to report any health professional they have reason to believe has engaged in certain types of malpractice to the appropriate college, even when this information is obtained in a confidential therapy session. (For all colleges, this includes sexual misconduct; for the College of Psychotherapists it also includes "unsafe practice". Social workers, who are regulated under a separate act, are required to report to their own college certain types of 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 counsellor.
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. (We 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. For a detailed examination of the issue, see Preventing sexual abuse by health professionals.
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 therapy at 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.
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 required to give written permission. Also, if your therapist is employed by an institution, 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, the people authorized to read your records have confidentiality protocols to follow. There is generally less sharing of information if your therapist is working alone. He/she may have supervision (typically peer supervision), but it would be considered unethical to give names or other potentially identifying information about clients who are discussed.
Some marital therapists insist on being free to share anything you say in an individual session with your spouse; if this is their policy they should inform you up front, but it's best to ask and be sure. When you do marriage counselling with a licenced health care worker, the notes on your sessions are part of your medical records, which ordinarily you have a right to get a copy of. Your therapist is not supposed to allow a client to copy the notes of couples sessions without the consent of the other party, but this is not well known, so you might want to check. Be careful about giving consent if there is a chance that your partner or ex partner might show the notes to someone you would not want to see them, such as the judge in a custody case.
You have no doubt heard that the Ministry of Health has been trying to get all our health records in electronic format so that they can be quickly shared among different health professionals we may be dealing with. It could be a lifesaver, but...there is a problem when people's personal affairs and relationships are considered health information. A health professional in a major Ontario hospital said that she had seen a psychiatrist at her hospital a couple of times and discovered that the notes on her sessions were readily available to all her colleagues and every health professional in the hospital. We hope this problem is being fixed. At this point this only applies to doctors' records, so far as we know.
How communication technology can compromise privacy
The continuing evolution of technology has meant that either a therapist or a client can unwittingly compromise privacy. The main problems with phones and computers are dealt with in our article for therapists on how to avoid privacy breaches.
In addition: If you have been reading the news lately you will 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 (or supposedly deleted from 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 OK to ask a therapist you are considering working with about his practices concerning security of confidential information. The security measures we take for counselling via internet in Ontario can be seen at online appointments.
Addendum, Feb 8, 2020
Now there's more: If you have Siri, Alexa or one of their pals installed, conversations can be unwittingly recorded and conveyed over the internet. There are some third party apps that will use them to eavesdrop on you, too. It won't happen if your phone is turned off--unless there is some malware on your phone that makes it seem to turn off and continue to record. For more information about how to prevent recording, see https://www.groovypost.com/howto/stop-google-assistant-siri-cortana-alexa-active-listening/
To see privacy issues in context, you might be interested in articles on the erosion of privacy in the New York Review of Books, such as an article by Sue Halperin the December 22, 2016 issue, They Have, Right Now, Another You.
Also by Beth Mares
Beth Mares RP is an online therapist licensed in Ontario and based in Toronto, where she has been providing psychotherapy for thirty years.
Copyright © 2010 Mike Mares, since updated. All rights reserved.
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