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Breaches of confidentiality and exceptions to the rule of confidentiality

Breaches of confidentiality

All community service organisations have a responsibility to keep client or service-user information private and confidential. In some circumstances, clients can take legal action against a worker or an organisation under the law of negligence. We owe a duty of care to our clients to prevent any risk of harm.

Most agencies have policies and procedures relating to privacy and confidentiality which identify the rights of clients and responsibilities of workers. Often workers are asked to sign a confidentiality agreement when they begin working for an organisation. By signing this agreement workers are stating that they will respect and uphold the organisation’s policies and procedures and ensure that client information is not disclosed without the client’s informed consent. This is a legally binding document that clearly states a worker’s obligation to treat all client information confidentiality.

If a worker breaks client confidentiality they are seen to have breached (If something is breached it has been violated or broken) the policies of the organisation and, as a result, he or she may be dismissed from their position—that is, sacked! This may also open the worker to legal action from a client.

If you, as a worker, notice that another worker seems to be breaching client confidentiality you should:

  • See if they have the client’s permission to share the information (you can either ask the worker or check in the client’s file).
  • Check to see what the agency’s policy is regarding breaches of confidentiality and follow the procedures outlined.
  • If there isn’t a policy, and if you feel comfortable enough, approach the worker and express your concern.
  • Talk with your supervisor and tell them what you have observed or overheard and express your concerns.
  • Ask that all staff receive training in confidentiality, why it is important and how to maintain it.


Breaching procedures

All agencies should have guidelines and procedures to store and maintain client information and they should have policies on what should happen if these guidelines and procedures are breached.

Becoming aware that a fellow staff member is breaking confidentiality can create a dilemma for a worker. Should the worker ignore it and hope that it doesn’t happen again? Should they talk to the staff member concerned or mention it to a supervisor and perhaps cause the worker to be sacked?

There is a range of specific circumstances where a worker will be excused from breaching confidentiality, where he or she discloses information to protect the public. Some of these exemptions are established through statue and others through judicial interpretation of the law.

Where a worker becomes aware, in the course of managing a client, that a risk to public safety exists, he or she will be excused from breaching confidentiality where he or she discloses information about this risk in order to protect the public. This includes instances where there is a risk to a particular individual.

In circumstances where a worker considers that a client represents a risk to the public, they should carefully assess the level of risk before acting. It is a really good idea to discuss the situation with your supervisor.


Exceptions to the general rule of confidentiality

In the case where legal obligations override a client’s right to keep information private and confidential, you and your organisation has the responsibility to inform the client and explain in a way  they can understand, the limits of confidentiality.

There are a few exceptions to the general rule of confidentiality, and these all have a legal bases.These include –

  1. A client tells you they have committed a serious crime –                                                                                              Serious crime covers offences such as drug trafficking, serious assaults, sexual assaults, murder and manslaughter. It does not include minor possession offences or any offences under public health legislation.
  2. If the client is a child and is being abused or at risk of abuse –see mandatory reporting guidelines
  3. If you are concerned that the client might harm themselves or someone else
  4. If a child is under the age of 16 years, and especially under the age of 14 years, parents legally have the right to know what happens in counselling
  5. Making records available to the police if they have a warrant to inspect documents
  6. Responding to a request under the freedom or information legislation
  7. Responding to a summons or subpoena
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