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Intentional Confidentiality Waivers
In This Toolkit:
Victims can voluntarily waive their privileges, but you should alert them to the benefits and drawbacks of doing so. For example, a benefit could be that sharing information with others on the SART team could improve services and help pending investigations. On the other hand, victims may not be able to control the type or amount of information released or to whom it is released.16 For example—
- Some or all of the records may be given to the defendant.
- Some or all of the information may get introduced in court, depending on judges' rulings.
- Advocates may be called to testify at trial.
- Advocates' personal observations, beliefs, and opinions may be disclosed.
- Trial testimony may be available to the public through the court clerk's office.
- Information discussed during counseling sessions held after the waiver is signed may not be confidential.
In addition, although the victim can dictate what the center may voluntarily release, once the center does so, confidentiality is waived and, if a subpoena is served, all victim records and communications may be subject to release.17
In general, releases of information should be clear, concise, and limited to a specific purpose to be achieved; individually tailored to the needs of specific victims; and thoroughly reviewed with the victim.18 Consider including the following information:
- Name of the agency or person permitted to share information.
- Names of agencies or organizations to which disclosures will be made.
- Name of the victim.
- Purpose of the disclosure.
- How much and what kind of information is to be disclosed.
- The victim's signature.
- The date the waiver was signed.
- A statement that the confidentiality waiver can be revoked at any time except to the extent that your SART has already reviewed the case.
- The date, event, or condition upon which the consent will expire if not previously revoked.
The most common situations in which victims intentionally waive privilege are when they19—
- Report a crime: Let victims know that if they want their attackers arrested and prosecuted, the medical forensic information will be released to law enforcement and prosecution. (Counseling and other private records are not, however, automatically subject to disclosure.)
- File a civil lawsuit: Let victims know that it will be very difficult to control their privacy. If they file civil suits based on physical and emotional damages, their psychotherapist/counselor records may be made public.
When drafting confidentiality policies, carefully consider not allowing emergency verbal releases of information. Only in the rarest of circumstances should a victim be able to authorize a release of information by phone or by any means of communication that does not allow the victim to read and sign the release. If you do decide to allow verbal releases, stipulate the following safeguards in your policy:20
- Clearly document which emergency circumstances apply.
- Make sure that other SART members witness and sign the release.
- Make the scope of information to be released as narrow as possible.
- Follow up the verbal release with a written one as soon as possible.