Information_Sharing_Group_Attachment_A by elmasreen999

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									                                                                     Attachment A
 Sharing Information Concerning University Students When There
          Is a Perceived Risk of Danger to Self or Others:

                           A Summary of Applicable Law



Executive Summary

This document discusses two categories of student information. Under FERPA
information gained by non-medical University personnel can be shared within the
institution and with parents who claim the student as a tax dependent. In “health and
safety emergencies,” FERPA permits sharing of information with outside entities. The
propriety of campus health care providers sharing limited medical information, with a
few administrators and/or parents , about a student who is not quite committable for
mental health problems, but who is nonetheless quite concerning, is complex. HIPAA
should not be a factor, unless the campus has subjected its student health/counseling
service records to HIPAA, in which case HIPAA is generally not an obstacle.

We have considered the possibility of subjecting the student health/counseling service to
Chapter 122C. While there appear to be considerable advantages to doing so, there also
may be additional requirements for policies and practices. This topic needs far greater
discussion than is possible in this paper. In any event campuses may still use involuntary
commitment statutes. We think that mental health providers should review these
statutory requirements, since there may be more flexibility in them than is sometimes
perceived.

While the licensure requirements of the different health care professional groups all allow
disclosure of medical information in situations where there is danger to self or others,
each group sets slightly different standards according to the profession and the situation.
Some mental health care providers are permitted to share concerning information more
easily than others. This may be an area where being subject to Chapter 122C could be
helpful because it provides uniform standards for disclosures. We raise the issue of what
role the campus should have in assisting a health care provider who is the subject of a
complaint to his/her licensure board for sharing medical information in this situation.

Another area of potential concern is liability. Again, Chapter 122/C coverage could offer
considerable benefits in this area. State defense of health care providers in litigation and
having insurance for judgments is very helpful.




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Sharing Information Concerning University Students When There
         Is a Perceived Risk of Danger to Self or Others:

                           A Summary of Applicable Law

I. INTRODUCTION

We have been asked to prepare a report on the current status of the confidentiality of
student information, including information contained in student medical records, under
North Carolina and federal law. This report is intended to facilitate discussion of the
issues surrounding the basic question: When may/should someone on a campus provide
information about a student to a campus official or to the student’s parent if the person
believes the student is at substantial risk of causing harm to himself or others?

This report encompasses applicable confidentiality provisions of the Family Educational
Rights and Privacy Act, the Health Insurance Portability and Accountability Act of 1996,
North Carolina laws on confidentiality of medical records, and applicable licensure rules
of the licensing organizations for a number of healthcare professions. Although we were
directed to include any relevant provisions in section 504 of the Rehabilitation Act and
the Americans With Disabilities Act, the only provisions in those statutes dealing with
confidentiality of medical records are related to pre-employment physicals, which is not
relevant for this discussion. In this regard, the Family Policy Compliance Office of the
U.S. Department of Education (FPCO) has ruled that medical information about a
student’s disability that is shared with a University for purposes of determining eligibility
for accommodations under 504 or ADA, once in the possession of the University, is
protected by FERPA. [LeRoy S. Rooker, Letter to University of North Alabama re:
Disability Office Records, November 2, 2004]

To write this report, we conducted considerable research. Rather than encumber this
document with lengthy citations and ever longer footnotes, we attach an Appendix which
sets out the pertinent citations, content of relevant statutes, regulations, and ethical
statements. By compiling all this material into one document, we believe it will help all
to better understand the current state of the law. We have also attached, in a second
Appendix a few suggestions for the subcommittee’s consideration.




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II. CONFIDENTIALITY

A. Family Educational Rights and Privacy Act

The Family Educational Rights and Privacy Act (FERPA, 20 U.S.C. 1232g) protects a
student’s “education records” from disclosure without the student’s prior written consent.
The term “education records” means “those records that are: (1) directly related to a
student; and (2) maintained by an educational…institution or by a party acting for the
…institution.” 34 CFR 99.3. This broad definition is somewhat limited by a number of
statutory and regulatory exceptions.. Other exceptions also allow disclosure of education
record information without the student’s consent under certain circumstances. The first
three sections below discuss FERPA’s application to “education record” information in
general. Issues involving information in student medical records are discussed separately
in later sections.

Is it an “education record”?

According to LeRoy Rooker of the FPCO, FERPA is not a confidentially law but a
records privacy law. Therefore, if an employee, contractor or other institutional official
of an educational institution has direct knowledge about a student, based on his or her
first-hand observations and that information is not recorded in an education record, he or
she may disclose the information to anyone without violating FERPA. If the employee’s
observations have been written down and shared with someone else, they then become an
education record and can only be disclosed in accordance with FERPA. Administrative
actions taken as a result of the employee’s personal observations are also FERPA-
protected. [LeRoy Rooker, “The Federal Educational Rights and Privacy Act: A Primer,”
presented May 12, 2006, at a continuing legal education program for the Education Law
Section of the North Carolina Bar Association. See also Leroy S. Rooker, Letter: Recent
Amendments to Family Educational Rights and Privacy Act Relating to Terrorism
Activities, April 12, 2002.] Of course, extremely sensitive information should still be
shared carefully and appropriately.

When may “education record” information be disclosed?

The FERPA regulations [34 CFR 99.31] list 15 instances in which education record
information may be disclosed without the student’s consent. Three may be applicable in
cases where a student’s actions or personal affect cause concern about his or her potential
danger to self or others.

        1. Disclosure to the institution’s own officials, including teachers, who have a
        “legitimate educational interest” in the information. 34 CFR 99.31(a)(l). Each
        institution is allowed to define “legitimate educational interest” for itself, and the
        definition must be included in the institution’s annual FERPA notice to students.
         34 CFR 99.7.
        2. Disclosure to a student’s parents, if the parents claim the student as a
        dependent for federal income tax purposes. 34 CFR 99.31(8). If either parent



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        claims the child as a dependent for federal income tax, both parents may have
        access to the student’s records. [LeRoy Rooker presentation, supra.] To
        determine whether the child is a tax dependent, institutions may ask for a copy of
        the parent’s tax return, may check the institutional financial aid office to see if
        there is a copy on file for the current tax year, or may annually collect a
        certification from the student that he or she is/is not a dependent of parents.

        3. Disclosure in connection with a health or safety emergency. 34 CFR
        99.31(10). Information may be disclosed to appropriate parties in a health or
        safety emergency “if knowledge of the information is necessary to protect the
        health or safety of the student or other individuals.” The exception is to be strictly
        construed. 34 CFR 99.36. The Family Policy Compliance Office of the U.S.
        Department of Education has discussed this issue in a Dear Colleague letter:

        “[T]he Department consistently has limited the health and safety exception to a
        specific situation that presents imminent danger to a student, other students, or
        other members of the school community – or to a situation that requires the
        immediate need for information from education records in order to avert or
        diffuse serious threats to the safety or health of a student or other individuals.
        However, any release must be narrowly tailored considering the immediacy,
        magnitude, and specificity of information concerning the emergency. As the
        legislative history indicates, this exception is temporally limited to the period of
        the emergency and generally will not allow for a blanket release of personally
        identifiable information from a student’s education records.

        “Under the health and safety exception school officials may share relevant
        information with ‘appropriate parties,’ that is, those parties whose knowledge of
        the information is necessary to provide immediate protection of the health and
        safety of the student or other individuals….

        “The educational agency or institution has the responsibility to make the initial
        determination of whether a disclosure is necessary to protect the health or safety
        of the student or other individuals.” Leroy S. Rooker, Letter: Recent
        Amendments to Family Educational Rights and Privacy Act Relating to Terrorism
        Activities, April 12, 2002.


Sections 99.31 and 99.36 are set out in full in the Appendix.

What if the student has told the institution not to release his or her “directory
information”?

“Directory information” under FERPA is “information contained in an education record
of a student that would not generally be considered harmful or an invasion of privacy if
disclosed.” Within that general restriction, institutions have some flexibility in defining
“directory information” on their campuses. Normally this information is made public



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without the student’s consent. A student may, however, ask the institution not to release
his or her directory information. Even if the student has made this request, it does not
affect the ability of the institution to release any relevant information about the student
under the provisions discussed in prior sections of this memo because those provisions
deal with release to specifically targeted audiences in specific circumstances, not the
general public release of information.

B. Health Insurance Portability and Accountability Act of 1996

Is a student’s medical information protected by FERPA, HIPAA, or something else?

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) regulates the
disclosure of an individual’s “protected health information.” However, the definition of
“protected health information” “excludes individually identifiable health information in:
(i) education records covered by the Family Educational Rights and Privacy Act… [and]
(ii) records described at 20 USC 1232g(a)(4)(B)(iv)….”[FERPA]. 45 CFR 160.103.

20 USC 1232g(a)(4)(B)(iv) provides that “Records on a student who is…attending an
institution of postsecondary education, which are made or maintained by a physician,
psychiatrist, psychologist, or other recognized professional or paraprofessional acting in
his or her professional or paraprofessional capacity, or assisting in that capacity and
which are made, maintained, or used only in connection with the provision of treatment
to the student , and are not available to anyone other than persons providing such
treatment…” are not education records covered by FERPA.

Therefore, a student’s medical treatment records are not covered by HIPAA, nor are they
covered by FERPA unless they are disclosed to someone outside the treatment team. In
the absence of these federal protections, such records are protected under North Carolina
law. If the records, or a portion thereof, are disclosed outside the treatment team, they
become FERPA-protected records. We recognize, however, that some campuses may
have chosen to protect these records under HIPAA, which is discussed in the next
section.


Where a patient’s medical records are protected by HIPAA, when may they be
disclosed without the patient’s consent?

Most campus health services do not have the resources to provide long-term counseling
or therapy to students. Instead, they refer students who need additional help to outside
providers in the community. Therefore it is possible, if not likely, that a seriously
disturbed student’s mental health records would be in the possession of an outside
provider and thus subject to HIPAA.

HIPAA regulations also permit the use or disclosure of protected health information
without the patient’s written authorization or agreement in certain limited situations. 45




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CFR 164.512. A relevant exception in the current context permits disclosure of
protected health information “to avert a serious threat to health or safety.”

                 “A covered entity may, consistent with applicable law and
                 standards of ethical conduct, use or disclose protected health
                 information, if the covered entity, in good faith, believes the use or
                 disclosure:
                 (i)(A) Is necessary to prevent or lessen a serious and imminent
                 threat to the health or safety of a person or the public; and
                   (B) Is to a person or persons reasonably able to prevent or lessen
                 the threat including the target of the threat….”

Under the regulations “A covered entity that uses or discloses protected health
information pursuant to this exception is presumed to have acted in good faith with
regard to a belief described in [section]…(i)…, if the belief is based upon the covered
entity’s actual knowledge or in reliance on a credible representation by a person with
apparent knowledge or authority.”

Records Generated In Response to an Administrative Referral

When a student’s behavior brings him or her to the attention of the University Student
Affairs office and the student’s psychological condition becomes an issue, either in the
context of a campus disciplinary process or where medical withdrawal is being
considered, the University may make an administrative referral of the student to a mental
health professional for evaluation. In these situations, the student is clearly informed that
the mental health professional is not in a physician/patient relationship with the student
but has been retained by the University to provide information about the student’s
condition that the University will consider along with other evidence to determine
whether the student can and should safely remain in school. The student consents to this
procedure, and the University pays for the evaluation. The information communicated by
the evaluator is not a medical record; it is an education record protected under FERPA.


C. State Law and the Applicability of Chapter 122C to Student Health Services

We have prepared a comprehensive review of confidentiality to cover not only
psychiatrists and psychologists, but also the other licensed health care professionals who
work in one or more campus student health services. Since we understand that some of
the reluctance of health care providers to share information relate to concerns about their
licensure and about potential legal liability for breach of confidentiality, we also address
those areas. It is also necessary to consider licensure requirements since most statements
about confidentiality are found in this body of materials.




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1. General

The duty of patient confidentiality is a medical-ethical duty derived from English
common law, and has been recognized by the North Carolina Supreme Court in Crist v.
Moffatt, 389 S.E. 2d 41 (1990). In addition to this general duty, a licensed healthcare
provider may have specific obligations with regard to the maintenance and disclosure of
confidential patient communications and records which are set forth in licensing statutes
and regulations.

The duty of confidentiality is not absolute—there are a number of well-established
permitted or required disclosures, some of which have been codified in state statutes,
such as reporting of communicable diseases for public health purposes, reporting of the
abuse or neglect of juveniles and disabled adults, and communications necessary for the
safety of the patients and others.

Evidentiary privileges, such as the physician-patient privilege (.G.S. 8-53) and
psychologist-patient privilege (G.S. 8-53.3) are not the basis for the duty of
confidentiality. These privileges involve the right to withhold evidence from discovery
and/or the right to refrain from disclosing or divulging information gained within the
context of a “special relationship.”

But, what of the situation where the health care provider wants to disclose? There is one
statutory chapter in North Carolina that addresses this situation, but it is not entirely clear
whether it applies to all campus health services at state universities.

2. Disclosure of Minors’ Medical Information to Parents

N.C.G.S. 90-21.5 provides legal authority for a minor to consent to service for the
prevention, diagnosis, and treatment of “emotional disturbance,” which in all likelihood
would include the type of counseling and mental health services provided by the
university. Consequently university students, whether they are minors or adults,
generally control access to information about the mental health services provided by the
university. Under N.C.G.S. 90-21.4, a “physician shall not notify a parent…without the
permission of the minor, concerning the medical health services [for emotional
disturbance]…unless the situation in the opinion of the attending physician indicates that
notification is essential to the life or health of the minor. If a parent…contacts the
physician concerning the treatment or medical services being provided to the minor, the
physician may give information.” Disclosures of mental health information to a parent,
without the student’s consent, that fall outside the G.S. 90-21.4 exceptions, could be
found to constitute a breach of confidentiality.

In situations where HIPAA applies, if the patient is incapable of agreeing or objecting or
if it is an “emergency circumstance,” and if the covered entity, “in the exercise of
professional judgment, determine[s that]… the disclosure [to a third party] is in the best
interests of the individual,” protected health information may be disclosed. However




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only the information “that is directly relevant to the person’s involvement with the
individual‘s healthcare.” may be disclosed “, 45 CFR164-510(b)(3).

3. Coverage by Chapter 122C

Prior to our undertaking this assignment, a question had arisen as to whether or not health
care providers in campus student health services were covered by the North Carolina
mental health code, Chapter 122C of the General Statutes.

This is a very important question since G.S. 122C-55(d) permits “A responsible
professional . . . [to] disclose confidential information when in his opinion there is an
imminent danger to the health or safety of the client or another individual or there is a
likelihood of the commission of a felony or violent misdemeanor.” (emphasis added)
Except for this provision, there is no other statute specifically permitting such
disclosures. Note that in 122C-55(d) the other individual at risk does not have to be
identifiable.

A “responsible professional” is defined in N.C.G.S. 122C-3(32) as “an individual within
a facility who is designated by the facility director to be responsible for the care,
treatment, habilitation, or rehabilitation of a specific client and who is eligible to provide
care, treatment, habilitation, or rehabilitation relative to the client's disability.”

The definition of a “facility” is quite different than one might assume. It is defined in
N.C.G.S. 122C-3(14) as “any person at one location whose primary purpose is to provide
services for the care, treatment, habilitation, or rehabilitation of the mentally ill, the
developmentally disabled, or substance abusers, and includes: . . .” (emphasis added)
Thus, even though the list that follows contains many hospital settings, it is clear that the
list is illustrative and not limiting. Since the statute defines a facility to include “any
person,” it seems clear that a university student health service would satisfy the definition
of a facility. We recognize, however, that the structure and functions of student health
services vary from campus to campus within the University system.

Coverage of student health/counseling service employees by Chapter 122C might provide
a more consistent approach to the sharing of information and is worthy of further study


4. Involuntary Commitment

Whatever the decision about coverage under Chapter 122C, the commitment statutes are
still available to us. Student health/counseling services occasionally now petition for
involuntary commitment of a patient. The standard for doing so is that the patient be
mentally ill and dangerous to him/her self or others. We encourage health care providers
to review the definitions of danger to self or others, which are set out in the Appendix.
These concepts are more flexible than one might generally suppose.




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The statutes describing the basis for petitioning and commitment are set out in the
Appendix. With regard to the time period for the “recent past” in the definitions in
N.C.G.S. 122C-3(11) for dangerousness to self and dangerousness to others, the case of
Davis v. N.C. Department of Human Resources, 121 N.S. App. 105, 465 S.E.2d 2 (1995);
disc. Rev. denied, 343 N.C. 750, 473 S.E.2d 612 (1996), makes clear that the phrase
means the “relevant past,” which in Davis meant six months, but could mean other
durations in other cases.

It is also important to remember that under N.C.G.S. 122C-261, “Anyone who has
knowledge” may petition for involuntary commitment. This includes family members,
neighbors, friends, and health care providers. Psychiatrists and psychologists are not the
only people who may petition for commitment.


III. LICENSURE

A. Executive Summary of Section

The ethical standards for healthcare providers’ releasing information without the
patient’s/client’s consent vary by profession. The only common denominator is that all
involve some degree of potential harm to the patient or others. Social workers’ limitation
to “clear and imminent danger” is the most narrow. The standards for psychiatrists and
psychologists seem to have the most flexibility, from the risk of danger being significant
(psychiatrists) to protecting people from harm (psychologists). Since the latter two health
care providers most often face concerns of patients posing risks to themselves or others,
this flexibility makes sense.

B. Exceptions to Confidentiality

The vast majority of the statements about the confidentiality obligations of health care
providers are set out in the statutes, regulations, and ethics statements related to
professional licensure.

As to physicians (and physician assistants), the North Carolina Medical Board looks,
among other sources, to the American Medical Association’s Ethical Opinions. While
the AMA stresses the importance of maintaining confidentiality, it also recognizes those
infrequent occasions when the patient may pose a risk of harm to self or others. In its
statement on Patient Confidentiality (which is not an Ethical Opinion), the AMA states
that “If there is a reasonable probability that a patient will inflict serious bodily harm on
anther person, for example, the physician should take precautions to protect the intended
victim and notify law enforcement authorities.”

AMA Ethics Opinion E-5.05 states in part that: “When a patient threatens to inflict
serious physical harm to another person or to him or herself and there is a reasonable
probability that the patient may carry out the threat, the physician should take reasonable




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precautions for the protection of the intended victim, which may include notification of
law enforcement authorities.”

Psychiatrists, while subject to the general requirements of physicians, have additional
ethical statements more focused on the subtleties of mental health they face in their
practices. The American Psychiatric Association’s Principles of Medical Ethics,
Annotation 2 to Section 4, states that information gained in treating patients in student
health services should not be released without student consent. It should be noted,
however, that the APA’s commentary on Section 4 of the AMA’s Medical Ethics, states
“When, in the clinical judgment of the treating psychiatrist, the risk of danger is deemed
to be significant, the psychiatrist may reveal confidential information disclosed by the
patient.” (Annotation 8) Thus, it appears that the APA acknowledges that, in some
cases, it is appropriate for a psychiatrist to make exceptions to the general expectation of
confidentiality.

Psychologists are regulated by ethical positions of the American Psychological
Association in its Ethical Principles and Code of Conduct. Section 4.05 provides an
exception from confidentiality when disclosure of the information is to “(3) protect the
client/patient, psychologist, or others from harm. . . .”

Nurses appear to have little in their ethical code about exceptions from confidentiality.
They may breach confidentiality when required or authorized by law, according to 21
N.C.A.C. 36.0217(16).

Social workers must consider 21 N.C.A.C. 63.0507(b), which grants an exception in
circumstances which “would result in clear and imminent danger to the client or others.”
This seems the most restrictive of all the ethical codes.

Licensed counselors are subject to the American Counseling Association’s Code of
Ethics. Section B.2.a. states that “The general requirement that counselors keep
information confidential does not apply when disclosure is required to protect clients or
identified others from serious and foreseeable harm or when legal requirements demand
that confidential information must be revealed.”

As can be seen above, the ethical standards for release of confidential information vary
from profession to profession. There seems little chance of conforming them under
present licensure standards. It is important to note, however, that all of the ethical
standards – regardless of profession -- recognize to varying degrees the right of health
care providers to breach their standard day-to-day confidentiality obligations when
necessary to protect their patients or other third parties.

C. Consultations

There have been indications that some health care providers believe they would be
breaching patient confidentiality if they share patient information with other colleagues in
the student health service. It seems quite clear that it is ethically appropriate for a health



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care provider to seek consultations from others who do not personally evaluate the
patient. In this situation, the health care provider generally should not disclose the
patient’s name and should provide only the details pertinent for the consult.

Physicians are encouraged in AMA Ethics Opinion E-8.04 to seek consultations when
medically indicated. There does not seem to be a limit on the sharing of information.
Psychiatrists, under Annotation 4 by the APA to AMA Medical Ethics Section 4, may
consult with non-physicians but must admonish the person about the duty of
confidentiality. The next annotation indicates that only relevant information should be
released.

Section 3.09 of psychologists’ Ethical Principles permits co-operation with other
professionals to serve the patient. Section 4.06 states that: “When consulting with
colleagues, (1) psychologists do not disclose confidential information that reasonably
could lead to the identification of a client/patient, research participant, or other person or
organization with whom they have a confidential relationship unless they have obtained
the prior consent of the person or organization or the disclosure cannot be avoided, and
(2) they disclose information only to the extent necessary to achieve the purposes of the
consultation.”

A nurse can be disciplined under 21 N.C.A.C. 36.0217(4) for failing to provide another
health care professional patient information “crucial to the safety of the client’s health
care. . . .”

Social workers who obtain a consultation from physicians and other health care providers
are required by 21 N.C.A.C. 63.0507(c) to conceal the identity of the patient.
Counselors seeking a consultation should only disclose necessary information and should
not reveal identifying information about a patient unless “the disclosure cannot be
avoided.” B.8.c.


V. LEGAL LIABILITY

A. Background

North Carolina does permit litigation for breach of medical confidentiality. See
Crist v. Moffatt, 326 N.C.326, 389 S.E.2d 41 (1990).

B. Immunity under Chapter 122C

One aspect of liability is the standard of care by which the health care provider will be
judged. Generally in medical malpractice that standard is one of ordinary negligence.
However, if the student health service providers are subject to Chapter 122C of the
General Statutes, then they are also covered by the immunity statute, N.C.G.S. 122C-
210.1.




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N.C.G.S. 122C-210.1 provides that: “No facility or any of its officials, staff, or
employees, or any physician or other individual who is responsible for the custody,
examination, management, supervision, treatment, or release of a client and who follows
accepted professional judgment, practice, and standards is civilly liable, personally or
otherwise, for actions arising from these responsibilities or for actions of the client. This
immunity is in addition to any other legal immunity from liability to which these facilities
or individuals may be entitled and applies to actions performed in connection with, or
arising out of, the admission or commitment of any individual pursuant to this Article.”

In Pangburn v. Saad, 73 N.C. App. 336, 326 S.E.2d 365 (1985), the court read the
predecessor statute to N.C.G.S. 122C-210.1 as providing only a qualified immunity for
the psychiatrist, protecting him from liability for ordinary negligence, but not protecting
him for any gross negligence (or “willful, wanton or reckless”) or intentional torts. Since
the plaintiff had alleged gross negligence in the discharge, the court held that the case
should not have been dismissed on a 12(b)(6) motion, and sent the case back to the trial
court.

Many health care attorneys perceived little value in this statute subsequent to Pangburn.
But Judge Greene’s dissent in Gregory v. Kilbride, 150 N.C.App. 601, 565 S.E.2d 685
(2002); disc. rev. denied, 357 N.C. 164, 580 S.E.2d 365 (2003) may have breathed new
life into N.C.G.S. 122C-210.1. Judge Greene argued that all the deposition evidence
showed no more than ordinary negligence by the physician. Because there was no issue
of material fact about gross negligence or an intentional tort, Judge Greene concluded
that summary judgment should have been granted the physician pursuant to this statute.
His analysis of this immunity statute using Youngberg v. Romeo, 457 U.S. 3307, 73
L.Ed. 2d 28, 102 S.Ct. 2452 (1982), is intriguing and persuasive: that a decision by a
professional is presumptively valid and liability attaches only upon showing a substantial
departure from accepted professional standards..

This immunity statute and its interpretation should encourage student health providers to
seek consultations from others in those situations when a student seemingly does not
meet the criteria for involuntary commitment and yet is very troubling to the health care
provider. By receiving consultations, the health care provider will benefit from ideas or
approaches offered by the consultant that the original health care provider did not think
of. If both health care providers agree about how to care for the patient, then that should
be persuasive evidence to support an argument that they acted within “accepted
professional judgment, practice, and standards.”

This statute applies not only to decisions in care of the patient, but appears to be broad
enough to protect from allegations of negligent breach of confidentiality. It’s, of course,
possible that, in litigation challenging a breach of patient confidentiality, the allegation
will be that the breach was an intentional act and outside the protection of N.C.G.S.
122C-210.1. Such an approach, if successful, could result in the case not being dismissed
prior to trial.

We might want to consider seeking clarification of this statute in the future.



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C. Defense of Suits and Paying Judgments

Another aspect of liability concerns defending the case and paying any judgment against
a defendant.

The North Carolina Defense of State Employees Act, N.C.G.S. 143-300.2 et seq.,
provides for the North Carolina Attorney General’s office to defend state employees who
are sued for negligence arising from their work. N.C.G.S. 143-299.2 provides for
payment of up to $500,000 [in 2007 the North Carolina legislature increased this limit to
$1,000,000; however the Governor has not yet signed the bill into law]. The State has
excess insurance beyond this amount, to the level of several million dollars. We are not
aware of any state employee who was acting within the course and scope of his/her job
ever having to pay money out of his/her pocket for a judgment.

D. Assistance with Licensure Board Issues

An issue for our discussion might concern what role, if any, a campus might have in
supporting a healthcare provider whose professional conduct has been challenged with
his/her licensure board for work-related conduct involving disclosure of confidential
patient information in troubling cases where the healthcare provider had to make a
judgment call on the issue.

One might ask whether this is a matter only for the health care provider. But, sound
arguments can be made that, if a University employee or contractor allegedly breaches
confidentiality by disclosing confidential information to University administrators after a
careful consideration of the likelihood of risk of harm to the patient and others were the
information not to be released,, then it is appropriate for the institution to support the
health care provider before his/her licensing board. An additional consideration is that, if
the licensure board takes action, even issuing just a letter of warning, against the
provider, that fact might be key evidence in a subsequent legal action against both the
provider and the institution. Thus, several reasons support a campus seeking the
Attorney General’s assistance, or if not available, the assistance of private counsel to
assist the health care provider. There is precedent for this support at the University of
North Carolina Hospitals, where an attorney on the Attorney General’s staff defended an
employee before his or her licensure board as an extension of the Hospitals’ medical
malpractice self-insurance program.

We believe it is important that health care providers in university student health services
be made aware of their legal and ethical obligations and rights. It is only through a
thorough understanding of these issues that sound judgments and decisions can be made.




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                                                                                          14


                                   APPENDIX ONE


                                         FERPA


34 CFR 99.30

§ 99.30 Under what conditions is prior consent required to disclose information?
(a) The parent or eligible student shall provide a signed and dated written consent before
an educational agency or institution discloses personally identifiable information from the
student’s education records, except as provided in § 99.31.
(b) The written consent must:
(1) Specify the records that may be disclosed;
(2) State the purpose of the disclosure;
and
(3) Identify the party or class of parties to whom the disclosure may be made.
(c) When a disclosure is made under paragraph (a) of this section:
(1) If a parent or eligible student so requests, the educational agency or institution shall
provide him or her with a copy of the records disclosed; and
(2) If the parent of a student who is not an eligible student so requests, the agency or
institution shall provide the student with a copy of the records disclosed.
(d) ‘‘Signed and dated written consent’’ under this part may include a record and
signature in electronic form that—
(1) Identifies and authenticates a particular person as the source of the electronic consent;
and
(2) Indicates such person’s approval of the information contained in the electronic
consent.
(Authority: 20 U.S.C. 1232g (b)(1) and (b)(2)(A)) [53 FR 11943, Apr. 11, 1988, as
amended at 58 FR 3189, Jan. 7, 1993; 69 FR 21671, Apr. 21, 2004]


§ 99.31 Under what conditions is prior consent not required to disclose information?
(a) An educational agency or institution may disclose personally identifiable information
from an education record of a student without the consent required by § 99.30 if the
disclosure meets one or more of the following conditions:

(1) The disclosure is to other school officials, including teachers, within the agency or
institution whom the agency or institution has determined to have legitimate educational
interests.

(2) The disclosure is, subject to the requirements of § 99.34, to officials of another
school, school system, or institution of postsecondary education where the student seeks
or intends to enroll.




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                                                                                          15


(3) The disclosure is, subject to the requirements of § 99.35, to authorized representatives
of—
(i) The Comptroller General of the United States;
(ii) The Attorney General of the United States;
(iii) The Secretary; or
(iv) State and local educational authorities.

(4)(i) The disclosure is in connection with financial aid for which the student has applied
or which the student has received, if the information is necessary for such purposes as to:
(A) Determine eligibility for the aid;
(B) Determine the amount of the aid;
(C) Determine the conditions for the aid; or
(D) Enforce the terms and conditions of the aid.
(ii) As used in paragraph (a)(4)(i) of this section, financial aid means a payment of funds
provided to an individual (or a payment in kind of tangible or intangible property to the
individual) that is conditioned on the individual’s attendance at an educational agency or
institution.
(Authority: 20 U.S.C. 1232g(b)(1)(D))

(5)(i) The disclosure is to State and local officials or authorities to whom this information
is specifically—
(A) Allowed to be reported or disclosed pursuant to State statute adopted before
November 19, 1974, if the allowed reporting or disclosure concerns the juvenile justice
system and the system’s ability to effectively serve the student whose records are
released; or
(B) Allowed to be reported or disclosed pursuant to State statute adopted after November
19, 1974, subject to the requirements of § 99.38.
(ii) Paragraph (a)(5)(i) of this section does not prevent a State from further limiting the
number or type of State or local officials to whom disclosures may be made under that
paragraph.

(6)(i) The disclosure is to organizations conducting studies for, or on behalf of,
educational agencies or institutions to:
(A) Develop, validate, or administer predictive tests;
(B) Administer student aid programs;
or
(C) Improve instruction.
(ii) The agency or institution may disclose information under paragraph (a)(6)(i) of this
section only if:
(A) The study is conducted in a manner that does not permit personal identification of
parents and students by individuals other than representatives of the organization; and
(B) The information is destroyed when no longer needed for the purposes for which the
study was conducted.
(iii) If this Office determines that a third party outside the educational agency or
institution to whom information is disclosed under this paragraph (a)(6) violates
paragraph (a)(6)(ii)(B) of this section, the educational agency or institution may not allow



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                                                                                             16


that third party access to personally identifiable information from education records for at
least five years.
(iv) For the purposes of paragraph (a)(6) of this section, the term organization includes,
but is not limited to, Federal, State, and local agencies, and independent organizations.

(7) The disclosure is to accrediting organizations to carry out their accrediting functions.

(8) The disclosure is to parents, as defined in § 99.3, of a dependent student, as defined in
section 152 of the Internal Revenue Code of 1986.

(9)(i) The disclosure is to comply with a judicial order or lawfully issued subpoena.
(ii) The educational agency or institution may disclose information under paragraph
(a)(9)(i) of this section only if the agency or institution makes a reasonable effort to
notify the parent or eligible student of the order or subpoena in advance of compliance, so
that the parent or eligible student may seek protective action, unless the disclosure s in
compliance with—
(A) A Federal grand jury subpoena and the court has ordered that the existence or the
contents of the subpoena or the information furnished in response o the subpoena not be
disclosed; or
(B) Any other subpoena issued for a law enforcement purpose and the court or other
issuing agency has ordered that the existence or the contents of the subpoena or the
information furnished in response to the subpoena not be disclosed.
(iii)(A) If an educational agency or institution initiates legal action against a parent or
student, the educational agency or institution may disclose to the court, without a court
order or subpoena, the education records of the student that are relevant for the
educational agency or institution to proceed with the legal action as plaintiff.
(B) If a parent or eligible student initiates legal action against an educational agency or
institution, the educational agency or institution may disclose to the court, without a court
order or subpoena, the student’s education records that are relevant for the educational
agency or institution to defend itself.

(10) The disclosure is in connection with a health or safety emergency, under the
conditions described in § 99.36.

(11) The disclosure is information the educational agency or institution has designated as
‘‘directory information’’, under the conditions described in § 99.37.

(12) The disclosure is to the parent of a student who is not an eligible student or to the
student.

(13) The disclosure, subject to the requirements in § 99.39, is to a victim of an alleged
perpetrator of a crime of violence or a non-forcible sex offense. The disclosure may only
include the final results of the disciplinary proceeding conducted by the institution of
postsecondary education with respect to that alleged crime or offense. The institution
may disclose the final results of the disciplinary proceeding, regardless of whether the
institution concluded a violation was committed.



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                                                                                          17



(14)(i) The disclosure, subject to the requirements in § 99.39, is in connection with a
disciplinary proceeding at an institution of postsecondary education. The institution must
not disclose the final results of the disciplinary proceeding unless it determines that—
(A) The student is an alleged perpetrator of a crime of violence or nonforcible sex
offense; and
(B) With respect to the allegation made against him or her, the student has committed a
violation of the institution’s rules or policies.
(ii) The institution may not disclose the name of any other student, including a victim or
witness, without the prior written consent of the other student.
(iii) This section applies only to disciplinary proceedings in which the final results were
reached on or after October 7, 1998.

(15)(i) The disclosure is to a parent of a student at an institution of postsecondary
education regarding the student’s violation of any Federal, State, or local law, or of any
rule or policy of the institution, governing the use or possession of alcohol or a controlled
substance if—
(A) The institution determines that the student has committed a disciplinary violation
with respect to that use or possession; and
(B) The student is under the age of 21 at the time of the disclosure to the parent.
(ii) Paragraph (a)(15) of this section does not supersede any provision of State law that
prohibits an institution of postsecondary education from disclosing information.
(b) Paragraph (a) of this section does not forbid an educational agency or institution from
disclosing, nor does it require an educational agency or institution to disclose, personally
identifiable information from the education records of a student to any parties under
paragraphs (a)(1) through (11), (13), (14), and (15) of this section.
(Authority: 20 U.S.C. 1232g(a)(5)(A), (b)(1), (b)(2)(B), (b)(6), (h), and (i)) [53 FR
11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 58 FR 3189, Jan. 7,
1993; 61 FR 59296, Nov. 21, 1996; 65 FR 41853, July 6, 2000]


§ 99.36 What conditions apply to disclosure of information in health and safety
emergencies?
(a) An educational agency or institution may disclose personally identifiable information
from an education record to appropriate parties in connection with an emergency if
knowledge of the information is necessary to protect the health or safety of the student or
other individuals.
(b) Nothing in this Act or this part shall prevent an educational agency or institution
from—
(1) Including in the education records of a student appropriate information concerning
disciplinary action taken against the student for conduct that posed a significant risk to
the safety or well-being of that student, other students, or other members of the school
community;
(2) Disclosing appropriate information maintained under paragraph (b)(1) of this section
to teachers and school officials within the agency or institution who the agency or




{00011763.DOC}
                                                                                             18


institution has determined have legitimate educational interests in the behavior of the
student; or
(3) Disclosing appropriate information maintained under paragraph (b)(1) of this section
to teachers and school officials in other schools who have been determined to have
legitimate educational interests in the behavior of the student.
(c) Paragraphs (a) and (b) of this section will be strictly construed.

(Authority: 20 U.S.C. 1232g (b)(1)(I) and (h)) [53 FR 11943, Apr. 11, 1988; 53 FR
19368, May 27, 1988, as amended at 61 FR 59297, Nov. 21, 1996]

US Department of Education Family Policy Compliance Office Model FERPA Notice:
Section on “Institutional Officials with Legitimate Educational Interests”

The University discloses education records without a student's prior written consent
under the FERPA exception for disclosure to school officials with legitimate educational
interests. A school official is a person employed by the University in an administrative,
supervisory, academic or research, or support staff position (including law enforcement
unit personnel and health staff); a person or company with whom the University has
contracted as its agent to provide a service instead of using University employees or
officials (such as an attorney, auditor, or collection agent); a person serving on the Board
of Trustees; or a student serving on an official committee, such as a disciplinary or
grievance committee, or assisting another school official in performing his or her tasks.

NOTE: FPCO also advises that, if an institution gives a contractor access to all of its
records, the contractor should be actually named in the notice.



         STATUTES, REGULATIONS, ETHICAL STATEMENTS

MENTAL HEALTH LAW –CHAPTER 122C

G.S. 122C-3 Definitions

(11)    "Dangerous to himself or others" means:

a.      "Dangerous to himself" means that within the relevant past:

        1.       The individual has acted in such a way as to show:
                 I.      That he would be unable, without care, supervision, and the
                 continued assistance of others not otherwise available, to exercise
                 self-control, judgment, and discretion in the conduct of his daily
                 responsibilities and social relations, or to satisfy his need for nourishment,
                 personal or medical care, shelter, or self-protection and safety; and
                 II.     That there is a reasonable probability of his suffering serious
                 physical debilitation within the near future unless adequate treatment is


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                                                                                                19


                 given pursuant to this Chapter. A showing of behavior that is grossly
                 irrational, of actions that the individual is unable to control, of behavior
                 that is grossly inappropriate to the situation, or of other evidence of
                 severely impaired insight and judgment shall create a prima facie
                 inference that the individual is unable to care for himself; or

        2.      The individual has attempted suicide or threatened suicide and that there
        is a reasonable probability of suicide unless adequate treatment is given pursuant
        to this Chapter; or

        3.      The individual has mutilated himself or attempted to mutilate himself and
        that there is a reasonable probability of serious self-mutilation unless adequate
        treatment is given pursuant to this Chapter.

        Previous episodes of dangerousness to self, when applicable, may be considered
        when determining reasonable probability of physical debilitation, suicide, or
        self-mutilation.

b.      "Dangerous to others" means that within the relevant past, the individual has
inflicted or attempted to inflict or threatened to inflict serious bodily harm on another, or
has acted in such a way as to create a substantial risk of serious bodily harm to another,
or has engaged in extreme destruction of property; and that there is a reasonable
probability that this conduct will be repeated. Previous episodes of dangerousness to
others, when applicable, may be considered when determining reasonable probability of
future dangerous conduct. Clear, cogent, and convincing evidence that an individual has
committed a homicide in the relevant past is prima facie evidence of dangerousness to
others.(emphasis added to the subparts of 11)

(14) "Facility" means any person at one location whose primary purpose is to provide
services for the care, treatment, habilitation, or rehabilitation of the mentally ill, the
developmentally disabled, or substance abusers, and includes: (emphasis added)

        a.       An "area facility", which is a facility that is operated by or under contract
        with the area authority or county program. For the purposes of this subparagraph,
        a contract is a contract, memorandum of understanding, or other written
        agreement whereby the facility agrees to provide services to one or more clients
        of the area authority or county program. Area facilities may also be licensable
        facilities in accordance with Article 2 of this Chapter. A State facility is not an
        area facility;
        b.       A "licensable facility", which is a facility that provides services to
        individuals who are mentally ill, developmentally disabled, or substance abusers
        for one or more minors or for two or more adults. These services shall be day
        services offered to the same individual for a period of three hours or more during
        a 24-hour period, or residential services provided for 24 consecutive hours or
        more. Facilities for individuals who are substance abusers include chemical
        dependency facilities;


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                                                                                               20


        c.      A "private facility", which is a facility that is either a licensable facility or
        a special unit of a general hospital or a part of either in which the specific service
        provided is not covered under the terms of a contract with an area authority;
        d.      The psychiatric service of the University of North Carolina Hospitals at
        Chapel Hill;
        e.      A "residential facility", which is a 24-hour facility that is not a hospital,
        including a group home;
        f.      A "State facility", which is a facility that is operated by the Secretary;
        g.      A "24-hour facility", which is a facility that provides a structured living
        environment and services for a period of 24 consecutive hours or more and
        includes hospitals that are facilities under this Chapter; and
        h.      A Veterans Administration facility or part thereof that provides services
        for the care, treatment, habilitation, or rehabilitation of the mentally ill, the
        developmentally disabled, or substance abusers.

(31) "Qualified professional" means any individual with appropriate training or
experience as specified by the General Statutes or by rule of the Commission in the fields
of mental health or developmental disabilities or substance abuse treatment or
habilitation, including physicians, psychologists, psychological associates, educators,
social workers, registered nurses, certified fee-based practicing pastoral counselors, and
certified counselors.

(32) "Responsible professional" means an individual within a facility who is
designated by the facility director to be responsible for the care, treatment, habilitation, or
rehabilitation of a specific client and who is eligible to provide care, treatment,
habilitation, or rehabilitation relative to the client's disability.


G.S. 122C-55 Exceptions; Care and Treatment

(d)    A responsible professional may disclose confidential information when in his
opinion there is an imminent danger to the health or safety of the client or another
individual or there is a likelihood of the commission of a felony or violent misdemeanor.
(emphasis added)


122C-210.1. Immunity from liability.

No facility or any of its officials, staff, or employees, or any physician or other individual
who is responsible for the custody, examination, management, supervision, treatment, or
release of a client and who follows accepted professional judgment, practice, and
standards is civilly liable, personally or otherwise, for actions arising from these
responsibilities or for actions of the client. This immunity is in addition to any other
legal immunity from liability to which these facilities or individuals may be entitled and
applies to actions performed in connection with, or arising out of, the admission or
commitment of any individual pursuant to this Article. (emphasis added)



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                                                                                         21



Grounds to Petition

122C-261. Affidavit and petition before clerk or magistrate when immediate
hospitalization is not necessary; custody order.

(a)     Anyone who has knowledge of an individual who is mentally ill and either (i)
dangerous to self, as defined in G.S. 122C-3(11)a., or dangerous to others, as defined in
G.S. 122C-3(11)b., or (ii) in need of treatment in order to prevent further disability or
deterioration that would predictably result in dangerousness, may appear before a clerk or
assistant or deputy clerk of superior court or a magistrate and execute an affidavit to this
effect, and petition the clerk or magistrate for issuance of an order to take the respondent
into custody for examination by a physician or eligible psychologist. The affidavit shall
include the facts on which the affiant's opinion is based…. Jurisdiction under this
subsection is in the clerk or magistrate in the county where the respondent resides or is
found. (emphasis added)

Standard for Commitment

122C-263. Duties of law-enforcement officer; first examination by physician or
eligible psychologist.

(d)    After the conclusion of the examination the physician or eligible psychologist
shall make the following determinations:

(1)     If the physician or eligible psychologist finds that:
        a.      The respondent is mentally ill;
        b.       The respondent is capable of surviving safely in the community with
        available supervision from family, friends, or others;
        c.      Based on the respondent's psychiatric history, the respondent is in need of
        treatment in order to prevent further disability or deterioration that would
        predictably result in dangerousness as defined by G.S. 122C-3(11); and
        d.       The respondent's current mental status or the nature of the respondent's
        illness limits or negates the respondent's ability to make an informed decision to
        seek voluntarily or comply with recommended treatment.

        The physician or eligible psychologist shall so show on the examination report
        and shall recommend outpatient commitment. In addition the examining physician
        or eligible psychologist shall show the name, address, and telephone number of
        the proposed outpatient treatment physician or center. The person designated in
        the order to provide transportation shall return the respondent to the respondent's
        regular residence or, with the respondent's consent, to the home of a consenting
        individual located in the originating county, and the respondent shall be released
        from custody.




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                                                                                            22


     (2)     If the physician or eligible psychologist finds that the respondent is mentally
ill and is dangerous to self, as defined in G.S. 122C-3(11)a., or others, as defined in G.S.
122C-3(11)b., the physician or eligible psychologist shall recommend inpatient
commitment, and shall so show on the examination report….

(3)    If the physician or eligible psychologist finds that neither condition described in
subdivisions (1) or (2) of this subsection exists, the proceedings shall be terminated. The
person designated in the order to provide transportation shall return the respondent to the
respondent's regular residence or, with the respondent's consent, to the home of a
consenting individual located in the originating county and the respondent shall be
released from custody.(emphasis added)

^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^


PHYSICIANS


NORTH CAROLINA LAW

§ 8-53. Communications between physician and patient. [confidentiality statute]

No person, duly authorized to practice physic or surgery, shall be required to disclose any
information which he may have acquired in attending a patient in a professional
character, and which information was necessary to enable him to prescribe for such
patient as a physician, or to do any act for him as a surgeon, and no such information
shall be considered public records under G.S. 132-1. Confidential information obtained in
medical records shall be furnished only on the authorization of the patient, or if deceased,
the executor, administrator, or, in the case of unadministered estates, the next of kin. Any
resident or presiding judge in the district, either at the trial or prior thereto, or the
Industrial Commission pursuant to law may, subject to G.S. 8-53.6 [alimony and divorce
proceedings], compel disclosure if in his opinion disclosure is necessary to a proper
administration of justice. If the case is in district court the judge shall be a district court
judge, and if the case is in superior court the judge shall be a superior court judge.


§ 90-14. Revocation, suspension, annulment or denial of license. [also applies to
nurse practitioners and physician assistants—see below]

(a)     The Board shall have the power to place on probation with or without conditions,
impose limitations and conditions on, publicly reprimand, assess monetary redress, issue
public letters of concern, mandate free medical services, require satisfactory completion
of treatment programs or remedial or educational training, fine, deny, annul, suspend, or
revoke a license, or other authority to practice medicine in this State, issued by the Board
to any person who has been found by the Board to have committed any of the following
acts or conduct, or for any of the following reasons: . . .


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                                                                                          23


         (6)     Unprofessional conduct, including, but not limited to, departure from, or
         the failure to conform to, the standards of acceptable and prevailing medical
         practice, or the ethics of the medical profession, irrespective of whether or not a
         patient is injured thereby, or the committing of any act contrary to honesty,
         justice, or good morals, whether the same is committed in the course of the
         physician's practice or otherwise, and whether committed within or without North
         Carolina. . . .

-----------------------------------------------------------------------
ETHICS/PROFESSIONAL RESPONSIBILITY

Licensure board: North Carolina Medical Board
http://www.ncmedboard.org/


The N.C. Medical Board does not have regulations relevant to this issue. A conversation
with an attorney for the N.C. Medical Board revealed that, in addition to the above
statute, the Board considers three types of materials in an ethics/licensure situation:
1. Position Statements on its website (none applicable to this issue);
2. American Medical Association’s Ethics Opinions from its Council on Ethical and
Judicial Affairs; and
3. N.C. Medical Society position statements.


American Medical Association “Principles of Medical Ethics” (2001), Preamble:
http://www.ama-assn.org/ama/pub/category/2512.html

“IV. A physician shall . . . safeguard patient confidences and privacy within the
constraints of the law.”

AMA’s resource on Patient Confidentiality (May 2007) may be found at:
http://www.ama-assn.org/ama/pub/category/4610.html

Patient confidentiality
Safeguarding patient confidences also is subject to certain exceptions that are ethically
and legally justified because of overriding social considerations. If there is a reasonable
probability that a patient will inflict serious bodily harm on another person, for example,
the physician should take precautions to protect the intended victim and notify law
enforcement authorities. (excerpt) (emphasis added)


DECLARATION OF PROFESSIONAL RESPONSIBILITY:
MEDICINE’S SOCIAL CONTRACT WITH HUMANITY (2001)
http://www.ama-assn.org/ama/pub/category/7491.html

V. Protect the privacy and confidentiality of those for whom we care and breach that



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                                                                                          24


confidence only when keeping it would seriously threaten their health and safety or that
of others.


AMA Ethics Opinions
E-5.00 Opinions on Confidentiality, Advertising, and Communications Media
Relations
http://www.ama-
assn.org/apps/pf_new/pf_online?category=CEJA&assn=AMA&f_n=mSearch&s_t=&st_
p=&nth=1&

E-5.05 Confidentiality

The information disclosed to a physician by a patient should be held in confidence. The
patient should feel free to make a full disclosure of information to the physician in order
that the physician may most effectively provide needed services. The patient should be
able to make this disclosure with the knowledge that the physician will respect the
confidential nature of the communication. The physician should not reveal confidential
information without the express consent of the patient, subject to certain exceptions
which are ethically justified because of overriding considerations.

When a patient threatens to inflict serious physical harm to another person or to him or
herself and there is a reasonable probability that the patient may carry out the threat, the
physician should take reasonable precautions for the protection of the intended victim,
which may include notification of law enforcement authorities. (emphasis added)

When the disclosure of confidential information is required by law or court order,
physicians generally should notify the patient. Physicians should disclose the minimal
information required by law, advocate for the protection of confidential information and,
if appropriate, seek a change in the law.


E-5.09 Confidentiality: Industry-Employed Physicians and Independent Medical
Examiners

Where a physician’s services are limited to performing an isolated assessment of an
individual’s health or disability for an employer, business, or insurer, the information
obtained by the physician as a result of such examinations is confidential and should not
be communicated to a third party without the individual’s prior written consent, unless
required by law. . . . (continues on to discuss workers’ compensation)




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                                                                                          25


E-8.04 Consultation

Physicians should obtain consultation whenever they believe that it would be medically
indicated in the care of the patient or when requested by the patient or the patient’s
representative. . . .
----------------------------------------------------------------------

NORTH CAROLINA MEDICAL SOCIETY (voluntary group)
http://www.ncmedsoc.org/

There does not appear to be a position statement on confidentiality of medical
information. ***
The Society’s website does contain the following on this subject.

The Physician-Patient Relationship
Elements of the Physician-Patient Relationship


confidence;

Access To Medical Records
Medical records are confidential documents and should only be released when permitted
by law or with proper written authorization of the patient.

________________________________________________________________________

PHYSICIAN ASSISTANTS

LAW

21 NCAC 32S .0113            VIOLATIONS

The [Medical] Board pursuant to G.S. 90-14 may deny, annul, suspend, or revoke the
license, or other authority to function as a physician assistant in this State. The following
acts constitute violations of G.S. 90-14:
(1)       Failure to function in accordance with the rules of this Subchapter or with any
provision of G.S. 90-14 shall constitute unprofessional or dishonorable conduct;

________________________________________________________________________

PSYCHIATRISTS (in addition to what is required for physicians)

Primary state group (voluntary membership): North Carolina Psychiatric Association, a
branch of the American Psychiatric Association
http://www.ncpsychiatry.org/




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                                                                                          26


does not appear to have anything pertinent on its website. But, the below Principles
would be heavily considered in a disciplinary hearing before the NCPA.


American Psychiatric Association’s
THE PRINICPLES OF MEDICAL ETHICS, With Annotations Especially
Applicable to Psychiatry (2006 Edition)
http://www.psych.org/psych_pract/ethics/ppaethics.cfm

Section 4
A physician shall respect the rights of patients, colleagues, and other health
professionals, and shall safeguard patient confidences and privacy within the constraints
of the law.

1. Psychiatric records, including even the identification of a person as a patient, must be
protected with extreme care. Confidentiality is essential to psychiatric treatment. This is
based in part on the special nature of psychiatric therapy as well as on the traditional
ethical relationship between physician and patient. Growing concern regarding the civil
rights of patients and the possible adverse effects of computerization, duplication
equipment, and data banks makes the dissemination of confidential information an
increasing hazard. Because of the sensitive and private nature of the information with
which the psychiatrist deals, he or she must be circumspect in the information that he or
she chooses to disclose to others about a patient. The welfare of the patient must be a
continuing consideration.

2. A psychiatrist may release confidential information only with the authorization of the
patient or under proper legal compulsion. The continuing duty of the psychiatrist to
protect the patient includes fully apprising him/her of the connotations of waiving the
privilege of privacy. . . . The same principles apply to the release of information
concerning treatment to medical departments of government agencies, business
organizations, labor unions, and insurance companies. Information gained in confidence
about patients seen in student health services should not be released without the students’
explicit permission. (emphasis added)        ...

4. The ethical responsibility of maintaining confidentiality holds equally for the
consultations in which the patient may not have been present and in which the consultee
was not a physician. In such instances, the physician consultant should alert the consultee
to his or her duty of confidentiality.

5. Ethically, the psychiatrist may disclose only that information which is relevant to a
given situation. He or she should avoid offering speculation as fact. Sensitive information
such as an individual’s sexual orientation or fantasy material is usually unnecessary.

6. Psychiatrists are often asked to examine individuals for security purposes, to determine
suitability for various jobs, and to determine legal competence. The psychiatrist must




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                                                                                          27


fully describe the nature and purpose and lack of confidentiality of the examination to the
examinee at the beginning of the examination. . . .

8. When, in the clinical judgment of the treating psychiatrist, the risk of danger is deemed
to be significant, the psychiatrist may reveal confidential information disclosed by the
patient. (emphasis added)


Opinions of the Ethics Committee on
The Principles of Medical Ethics
With Annotations Especially Applicable to Psychiatry
(2001 Edition)
http://www.psych.org/psych_pract/ethics/ethics_opinions53101.cfm

Section 4-H

Question: As a student health service psychiatrist, I treat some students
psychotherapeutically and see others for administrative reasons. Do I have a potential
ethical conflict?

Answer: You certainly do if you do not define your roles clearly and in advance to the
student. You cannot give an administrative opinion if the student has made a
psychotherapeutic contract with you. This is a classic example of "double-agentry." If the
college demands that you confuse your roles, you should refuse to participate and must
ethically withdraw from the arena if the college will not relent. Even a student's consent
for you to make an administrative report after a period of psychotherapy does not resolve
your conflict since the consent may not be freely given but coerced. The college should
be advised to seek an administrative opinion from a psychiatrist not involved in a
treatment relationship with the student. (October 1977)

Section 4-JJ

Question: Can a psychiatrist evaluate a prisoner (i.e., patient) for the state and then
determine that the prisoner requires involuntary hospitalization?

Answer: Yes. In this determination, the psychiatrist must do a proper psychiatric
examination to ensure that the person meets the clinical criteria for involuntary
hospitalization. It is then the psychiatrist's ethical responsibility to secure this
intervention, working with other state agencies within the constraints of the law. It is
important at the outset for the psychiatrist to make clear to the person to be examined the
nature, purpose, and lack of confidentiality of the exam. The established criteria for
involuntary hospitalization should be cited in the report to the court. (October 1994)




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Ethics Primer of the American Psychiatric Association
http://www.psych.org/edu/res_fellows/ethicsprimer.cfm

Section 4, Annotation 8 of the Principles states that “psychiatrists at times may find it
necessary, in order to protect the patient or the community from imminent danger, to
reveal confidential information disclosed by the patient.” The area of dangerousness is in
part, but not fully, covered by laws and judicial decisions in many states (e.g., Tarasoff,
Garamella v. New York Medical College, Thapar v. Zezulka). These have been changing
in recent years. An ethical psychiatrist should be familiar with the relevant local laws,
precedents, and clinical traditions about duties to warn; should know that ethical
dilemmas in this area persist; and should often ask for consultation if the question of
major imminent dangerousness arises. (p 41-42, from Chapter 6 “Confidentiality” by
Lawrence Hartmann, M.D.)

________________________________________________________________________
PSYCHOLOGISTS


NORTH CAROLINA LAW

§ 90-270.4. Exemptions to this Article.

(a)    Nothing in this Article shall be construed to prevent the teaching of psychology,
the conduct of psychological research, or the provision of psychological services or
consultation to organizations or institutions, provided that such teaching, research,
service, or consultation does not involve the delivery or supervision of direct
psychological services to individuals or groups of individuals who are themselves, rather
than a third party, the intended beneficiaries of such services, without regard to the
source or extent of payment for services rendered. . . . (emphasis added)


§ 8-53.3. Communications between psychologist and client or patient.
[confidentiality statute]

No person, duly authorized as a licensed psychologist or licensed psychological
associate, nor any of his or her employees or associates, shall be required to disclose any
information which he or she may have acquired in the practice of psychology and which
information was necessary to enable him or her to practice psychology. Any resident or
presiding judge in the district in which the action is pending may, subject to G.S. 8-53.6,
compel disclosure, either at the trial or prior thereto, if in his or her opinion disclosure is
necessary to a proper administration of justice. If the case is in district court the judge
shall be a district court judge, and if the case is in superior court the judge shall be a
superior court judge. . . .




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 § 90-270.15. Denial, suspension, or revocation of licenses and health services
provider certification, and other disciplinary and remedial actions for violations of
the Code of Conduct; relinquishing of license.

(a)     Any applicant for licensure or health services provider certification and any
person licensed or certified under this Article shall have behaved in conformity with the
ethical and professional standards specified in this Code of Conduct and in the rules of
the Board. The Board may deny, suspend, or revoke licensure and certification, and may
discipline, place on probation, limit practice, and require examination, remediation, and
rehabilitation, or any combination thereof, all as provided for in subsection (b) below.
The Board shall act upon proof that the applicant or licensee engaged in illegal, immoral,
dishonorable, unprofessional, or unethical conduct by violating any of the provisions of
the Code of Conduct as follows: . . .

         (7)    Has violated any provision of this Article or of the duly adopted rules of
         the Board; . . .

         (10) Has been guilty of immoral, dishonorable, unprofessional, or unethical
         conduct as defined in this subsection, or in the then-current code of ethics of the
         American Psychological Association, except as the provisions of such code of
         ethics may be inconsistent and in conflict with the provisions of this Article, in
         which case, the provisions of this Article control; . . .

         (18) Except when prevented from doing so by circumstances beyond the
         psychologist's control, has failed to retain securely and confidentially the
         complete case record . . .;

         (19) Has failed to cooperate with other psychologists or other professionals to
         the potential or actual detriment of clients, patients, or other recipients of service,
         or has behaved in ways which substantially impede or impair other psychologists'
         or other professionals' abilities to perform professional duties;


21 NCAC 54 .1608                 ETHICAL VIOLATIONS

The Board shall use those policies, publications, guidelines, and casebooks developed by
the American Psychological Association in determining whether violations of the Ethical
Principles of Psychologists have occurred. In addition, publications, guidelines, policies,
and statements provided by the Association of State and Provincial Psychology Boards,
the National Association of School Psychologists, and other relevant professional
associations and bodies may be used in interpreting the Ethical Principles of
Psychologists.

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                                                                                             30


ETHICS/PROFESSIONAL RESPONSIBILITY


Licensure board: North Carolina Psychology Board
http://www.ncpsychologyboard.org/


American Psychological Association’s
ETHICAL PRINCIPLES OF PSYCHOLOGISTS AND CODE OF CONDUCT
http://www.apa.org/ethics/code2002.html


1.02 Conflicts Between Ethics and Law, Regulations, or Other Governing Legal
Authority

If psychologists' ethical responsibilities conflict with law, regulations, or other governing
legal authority, psychologists make known their commitment to the Ethics Code and take
steps to resolve the conflict. If the conflict is unresolvable via such means, psychologists
may adhere to the requirements of the law, regulations, or other governing legal
authority.


1.03 Conflicts Between Ethics and Organizational Demands

If the demands of an organization with which psychologists are affiliated or for whom
they are working conflict with this Ethics Code, psychologists clarify the nature of the
conflict, make known their commitment to the Ethics Code, and to the extent feasible,
resolve the conflict in a way that permits adherence to the Ethics Code.


3.09 Cooperation With Other Professionals

When indicated and professionally appropriate, psychologists cooperate with other
professionals in order to serve their clients/patients effectively and appropriately. (See
also Standard 4.05, Disclosures.)


3.11 Psychological Services Delivered To or Through Organizations

(a) Psychologists delivering services to or through organizations provide information
beforehand to clients and when appropriate those directly affected by the services about
(1) the nature and objectives of the services, (2) the intended recipients, (3) which of the
individuals are clients, (4) the relationship the psychologist will have with each person
and the organization, (5) the probable uses of services provided and information obtained,
(6) who will have access to the information, and (7) limits of confidentiality. As soon as




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feasible, they provide information about the results and conclusions of such services to
appropriate persons.

(b) If psychologists will be precluded by law or by organizational roles from providing
such information to particular individuals or groups, they so inform those individuals or
groups at the outset of the service.


4.01 Maintaining Confidentiality

Psychologists have a primary obligation and take reasonable precautions to protect
confidential information obtained through or stored in any medium, recognizing that the
extent and limits of confidentiality may be regulated by law or established by institutional
rules or professional or scientific relationship. . . .


4.02 Discussing the Limits of Confidentiality

(a) Psychologists discuss with persons (including, to the extent feasible, persons who are
legally incapable of giving informed consent and their legal representatives) and
organizations with whom they establish a scientific or professional relationship (1) the
relevant limits of confidentiality and (2) the foreseeable uses of the information generated
through their psychological activities. . . .

(b) Unless it is not feasible or is contraindicated, the discussion of confidentiality occurs
at the outset of the relationship and thereafter as new circumstances may warrant.

(c) Psychologists who offer services, products, or information via electronic transmission
inform clients/patients of the risks to privacy and limits of confidentiality.


4.04 Minimizing Intrusions on Privacy

(a) Psychologists include in written and oral reports and consultations, only information
germane to the purpose for which the communication is made.

(b) Psychologists discuss confidential information obtained in their work only for
appropriate scientific or professional purposes and only with persons clearly concerned
with such matters.


4.05 Disclosures

(a) Psychologists may disclose confidential information with the appropriate consent of
the organizational client, the individual client/patient, or another legally authorized
person on behalf of the client/patient unless prohibited by law.



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(b) Psychologists disclose confidential information without the consent of the individual
only as mandated by law, or where permitted by law for a valid purpose such as to (1)
provide needed professional services; (2) obtain appropriate professional consultations;
(3) protect the client/patient, psychologist, or others from harm; or (4) obtain payment for
services from a client/patient, in which instance disclosure is limited to the minimum that
is necessary to achieve the purpose. . . .


4.06 Consultations

When consulting with colleagues, (1) psychologists do not disclose confidential
information that reasonably could lead to the identification of a client/patient, research
participant, or other person or organization with whom they have a confidential
relationship unless they have obtained the prior consent of the person or organization or
the disclosure cannot be avoided, and (2) they disclose information only to the extent
necessary to achieve the purposes of the consultation. (See also Standard 4.01,
Maintaining Confidentiality.)


_______________________________________________________________________
NURSE (Registered and Licensed Practical)


NORTH CAROLINA LAW

§ 8-53.13. Nurse privilege. [confidentiality statute]

No person licensed pursuant to Article 9A [nurses] of Chapter 90 of the General Statutes
shall be required to disclose any information that may have been acquired in rendering
professional nursing services, and which information was necessary to enable that person
to render professional nursing services, except that the presiding judge of a superior or
district court may compel disclosure if, in the court's opinion, disclosure is necessary to a
proper administration of justice and disclosure is not prohibited by other statute or rule.
Nothing in this section shall preclude the admission of otherwise admissible written or
printed medical records in any judicial proceeding, in accordance with the procedure set
forth in G.S. 8-44.1, after a determination by the court that disclosure should be
compelled as set forth herein.


§ 90-171.37. Revocation, discipline, suspension, probation, or denial of licensure.

The Board shall initiate an investigation upon receipt of information about any practice
that might violate any provision of this Article or any rule or regulation promulgated by
the Board. In accordance with the provisions of Chapter 150B of the General Statutes, the
Board shall have the power and authority to: (i) refuse to issue a license to practice



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                                                                                                         33


nursing; (ii) refuse to issue a certificate of renewal of a license to practice nursing; (iii)
revoke or suspend a license to practice nursing; and (iv) invoke other such disciplinary
measures, censure, or probative terms against a licensee as it deems fit and proper; in any
instance or instances in which the Board is satisfied that the applicant or licensee: . . .
        (5)      Is unfit or incompetent to practice nursing by reason of deliberate or
       negligent acts or omissions regardless of whether actual injury to the patient is
       established. . . .
        (7)      Has violated any provision of this Article.
        (8)      Has willfully violated any rules enacted by the Board.

21 NCAC 36 .0217              REVOCATION, SUSPENSION, OR DENIAL OF
LICENSE
 (c) Behaviors and activities which may result in disciplinary action by the Board include
the following: . . .
        (4)        failure to make available to another health care professional any client
        information crucial to the safety of the client's health care; . . .
        (16)       revealing identifiable data, or information obtained in a professional
        capacity, without prior consent of the client, except as authorized or required by
        law; . . .

-----------------------------------------------------------------------
ETHICS/PROFESSIONAL RESPONSIBILITY


Licensure board: North Carolina Board of Nursing
http://www.ncbon.com/


[Based upon a conversation with the North Carolina Board of Nursing, it relies on the
N.C. statutes and regulations in making disciplinary decisions. It does not look to a code
of ethics or anything similar of any national organization.]

-----------------------------------------------------------------------------------------------------------
NURSE PRACTIONER

21 NCAC 32M .0112                 DISCIPLINARY ACTION [Medical Board] and
21 NCAC 36 .0812                  DISCIPLINARY ACTION [Nursing Board]

(a) After notice and hearing in accordance with provisions of G.S. 150B, Article 3A,
disciplinary action may be taken by the appropriate Board [medical and nursing] if one or
more of the following is found: . . .
(1)       violation of . . . the joint rules adopted by each Board [medical and nursing]; . .
.
(5)       unprofessional conduct by reason of deliberate or negligent acts or omissions
and contrary to the prevailing standards for nurse practitioners in accordance and




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consistent with G.S. 90-14(a)(6) [see above under “physician”] and G.S. 90-171.35(5)
[sic—should be -171.37(5), for which see above under “nurse”];

(b) The nurse practitioner is subject to G.S. 90-171.37 . . . and 21 NCAC 36 .0217 by
virtue of the license to practice as a registered nurse.

________________________________________________________________________
SOCIAL WORKERS



NORTH CAROLINA LAW

§ 8-53.7. Social worker privilege. [confidentiality statute]

No person engaged in delivery of private social work services, duly licensed or certified
pursuant to Chapter 90B of the General Statutes shall be required to disclose any
information that he or she may have acquired in rendering professional social services,
and which information was necessary to enable him or her to render professional social
services: provided, that the presiding judge of a superior or district court may compel
such disclosure, if in the court's opinion the same is necessary to a proper administration
of justice and such disclosure is not prohibited by G.S. 8-53.6 or any other statute or
regulation.

§ 90B-11. Disciplinary procedures.

(a)    The Board may, in accordance with the provisions of Chapter 150B of the General
Statutes, deny, suspend, or revoke an application, certificate, or license on any of the
following grounds: . . .

         (3)    Gross unprofessional conduct, dishonest practice or incompetence in the
        practice of social work. . . .
         (7)    Violations of any of the provisions of this Chapter or of rules of the
        Board.


SECTION .0500 - ETHICAL GUIDELINES

21 NCAC 63 .0501             PURPOSE AND SCOPE

(b) The primary goal of the rules in this Section is to set forth principles to guide social
workers' conduct in their profession. Violation of these Rules may be considered gross
unprofessional conduct and may constitute dishonest practice or incompetence in the
practice of social work. Such violations may result in disciplinary action by the Board.




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21 NCAC 63 .0503                 GENERAL PROFESSIONAL RESPONSIBILITIES

 (b) As employees of institutions or agencies, social workers are responsible for
remaining alert to and attempting to moderate institutional pressures or policies that
conflict with the standards of their profession. If such conflict arises, social workers'
responsibility shall be to uphold the ethical standards of their profession. . . .

(d) Social workers shall practice their profession in compliance with legal standards.


21 NCAC 63 .0507                 CONFIDENTIALITY AND RECORD KEEPING

(a) Social workers shall protect the client's right to confidentiality as established by law.

(b) Social workers shall reveal confidential information to others only with the informed
consent of the client, except in those circumstances in which not to do so would violate
other laws or would result in clear and imminent danger to the client or others. Unless
specifically contraindicated by such situations, clients shall be informed and written
consent shall be obtained from clients, or their legally authorized representative, before
confidential information is revealed.

(c) When confidential information is used for the purpose of professional education,
research, or consultation, the identity of the client shall be concealed. Presentations shall
be limited to material necessary for the professional purpose. (emphasis added)


21 NCAC 63 .0601             GROUNDS FOR DISCIPLINARY PROCEDURES
In addition to the conduct set forth in G.S. 90B-11, the Board may take disciplinary
action upon the following grounds: . . . .


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ETHICS/PROFESSIONAL RESPONSIBILITY


Licensure board: North Carolina Social Work Certification and Licensure Board
http://www.ncswboard.org/

It is not clear if the Social Work Board looks to the opinions of any national groups. Such
possible groups are:

Clinical Social Work Association Code of Ethics
http://associationsites.com/CSWA/collection//Ethcs%20Code%20Locked%2006%2Epdf




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                                                                                          36


National Association of Social Workers Code of Ethics
http://www.socialworkers.org/pubs/code/code.asp

This issue probably should be clarified with the Board.



_______________________________________________________________________
LICENSED COUNSELORS


NORTH CAROLINA LAW

§ 8-53.8. Counselor privilege. [confidentiality statute]

No person, duly licensed pursuant to Chapter 90, Article 24 [licensed professional
counselor], of the General Statutes, shall be required to disclose any information which
he or she may have acquired in rendering professional counseling services, and which
information was necessary to enable him or her to render professional counseling
services: Provided, that the presiding judge of a superior or district court may compel
such disclosure, if in the court's opinion the same is necessary to a proper administration
of justice and such disclosure is not prohibited by other statute or regulation.


§ 90-340. Protection of the public.

The Board may, in accordance with the provisions of Chapter 150B of the General
Statutes, refuse to grant or to renew, may suspend, or may revoke the license of any
person licensed under this Article on one or more of the following grounds: . . .

         (3)    Gross unprofessional conduct, dishonest practice or incompetence in the
        practice of counseling. . . .
         (7)    Violations of any of the provisions of this Article or rules of the Board.
         (8)    Violations of the American Counseling Association Ethical Standards
        adopted by the Board.


21 NCAC 53 .0102            PROFESSIONAL ETHICS

The Board of Licensed Professional Counselors has adopted the Code of Ethics and
Standards of Practice promulgated by the American Counseling Association, effective
2005, including the guidelines for the practice of online counseling adopted in October
1999 and any subsequent revisions of or amendments to the Code of Ethics and Standards
published by the American Counseling Association and they are hereby incorporated by
reference. Copies of the Code of Ethics and Standards are available free of charge from




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                                                                                       37


the American Counseling Association, 5999 Stevenson Ave., Alexandria, VA 22304, and
online at www.counseling.org.


21 NCAC 53 .0202                 PRIVILEGED COMMUNICATION

Privileged Communication shall mean any communication between client and counselor,
given in confidence and not intended to be disclosed to third persons other than those to
whom disclosure is made in the furtherance of the rendition of professional services to
the client.


21 NCAC 53 .0402  GROUNDS FOR DENIAL, SUSPENSION, OR
REVOCATION OF LICENSE

History Note:      Authority G.S. 90-334;
Eff. July 1, 1994;
Repealed Eff. September 1, 2006.


21 NCAC 53 .0404                 FORMAL COMPLAINTS

Formal complaints of a Licensed Professional Counselor's unethical conduct . . . .

-----------------------------------------------------------------------
ETHICS/PROFESSIONAL RESPONSIBILITY



Licensure board: North Carolina Board of Licensed Professional Counselors
http://www.ncblpc.org/


AMERICAN COUNSELING ASSOCIATION CODE OF ETHICS
http://www.counseling.org/Resources/CodeOfEthics/TP/Home/CT2.aspx

B.1.c. Respect for Confidentiality

Counselors do not share confidential information without client consent or without sound
legal or ethical justification.




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                                                                                        38


B.1.d. Explanation of Limitations

At initiation and throughout the counseling process, counselors inform clients of the
limitations of confidentiality and seek to identify foreseeable situations in which
confidentiality must be breached. . . .


B.2. Exceptions
B.2.a. Danger and Legal Requirements

The general requirement that counselors keep information confidential does not apply
when disclosure is required to protect clients or identified others from serious and
foreseeable harm or when legal requirements demand that confidential information
must be revealed. Counselors consult with other professionals when in doubt as to the
validity of an exception. . . . (emphasis added)


B.2.d. Minimal Disclosure

To the extent possible, clients are informed before confidential information is disclosed
and are involved in the disclosure decision-making process. When circumstances require
the disclosure of confidential information, only essential information is revealed.


B.3.c. Confidential Settings

Counselors discuss confidential information only in settings in which they can reasonably
ensure client privacy.


B.6. Records
B.6.a. Confidentiality of Records

Counselors ensure that records are kept in a secure location and that only authorized
persons have access to records.


B.8.b. Respect for Privacy

Information obtained in a consulting relationship is discussed for professional purposes
only with persons directly involved with the case. Written and oral reports present only
data germane to the purposes of the consultation, and every effort is made to protect
client identity and to avoid undue invasion of privacy.




{00011763.DOC}
                                                                                          39


B.8.c. Disclosure of Confidential Information

When consulting with colleagues, counselors do not disclose confidential information
that reasonably could lead to the identification of a client or other person or organization
with whom they have a confidential relationship unless they have obtained the prior
consent of the person or organization or the disclosure cannot be avoided. They disclose
information only to the extent necessary to achieve the purposes of the consultation. . . .


H.1.b. Conflicts Between Ethics and Laws

If ethical responsibilities conflict with law, regulations, or other governing legal
authority, counselors make known their commitment to the ACA Code of Ethics and take
steps to resolve the conflict. If the conflict cannot be resolved by such means, counselors
may adhere to the requirements of law, regulations, or other governing legal authority.




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                                                                                          40


                                  APPENDIX TWO
                          Recommendations for Consideration


       Broad definitions of “institutional official” and “legitimate educational
        interest”

        To provide necessary flexibility, the definitions should be drafted broadly.
        “Institutional official” should include a wide range of individuals. “Legitimate
        educational interest” should also be broadly defined. The definition could include
        such things as needing the information to do one’s job effectively and needing the
        information to provide service that is in the student’s best interest. The section of
        the FPCO model notice provision concerning definition of “institutional officials”
        and “legitimate educational interest” appears in the appendix.

       Seek releases from students authorizing disclosure of information to parents
        before the need arises

        Because FERPA always permits release of information with the student’s written
        consent [34 CFR 99.30], institutions could seek such a release from students when
        they first enter the institution. That release would continue to be valid unless the
        student later revoked it and would allow release of information to parents even if
        they no longer claimed the student as a tax dependent.

       Encourage initial campus reporting to student affairs administrators and
        encourage appropriate administrators to maintain contact with the student
        whether or not the student also seeks professional counseling.

        Under FERPA, these administrators can share student information with other
        campus officials who have a legitimate interest and who are in a position to
        address the student’s troubling situation. Because counseling is only one of the
        resources available for students on campus these administrators play an important
        part in a team effort to help the student, allowing them to put the student in touch
        with other useful campus resources. And by continuing to stay in contact with the
        student, they may gain necessary insights and useful information directly from the
        student.

        This reporting channel should be communicated frequently to Housing personnel
        and others who work closely with students. Institutions could periodically send a
        notice to staff and faculty informing them of campus resources available to help
        troubled students and strongly encouraging them to inform the student affairs
        office when they know of a student who appears to need help.

       In appropriate situations Universities may use administrative referrals for
        evaluation of a student, with the student’s consent.


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                                                                                     41


       Institutions may wish to study in more detail whether G.S. 122C applies to
        their own student health services.




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