What’s Said Here, Stays Here Rule and The One Confidentiality Waiver to Rule Them All

Extra important disclaimer! The following content is a general framework to help SARTs and is not intended to be used as legal advice. Please consult your state/territory specific legal advisers if you have particular questions, needs, or concerns. Now, back to the regularly scheduled blog!

The title of this blog alludes to two common strategies that I hear Sexual Assault Response Teams (SARTs) discuss when the topic of confidentiality and information sharing comes up.  For those who aren’t in the know:

• What’s Said Here, Stays Here: This is when providers have a verbal or written agreement to not share any case or client information they hear while in a SART meeting. The teams using this strategy typically share confidential and privileged information freely with one another.
• One Confidentiality Waiver to Rule Them All: this is what I call it when teams sign one confidentiality agreement when they join the team and agree that they will not share any information discussed in any meetings they attend. Many teams use this strategy to “cover their bases” and comply with confidentiality and privilege requirements.

Both of these violate confidentiality rules and privilege statutes. Both of these strategies place agencies at risk of losing VAWA, VOCA, and FVPSA funding. This FAQ on the VAWA provisions also provides great information about some of the agency obligations of receiving funding from these sources. This page from TechSafety does a great job putting it into easy to understand terms. These confidentiality strategies also potentially put agencies at risk of having legal action taken against them for failing to protect information. Neither of these strategies meet the requirements of confidentiality and privilege. So, what does that mean for teams trying to share confidential or privileged information about cases and/or victims/survivors?

This means that every single time a team member wants to share confidential or privileged information about a case or client, they must secure written, time-limited, information specific consent from the victim/survivor. Each and every time. If a team member starts to share information without a time-limited, written consent form, they are putting their agency at risk. It’s up to us, as team members, to pause conversations and explain our obligations to protect information as service providers. This especially applies to community-based advocates, system-based advocates, healthcare providers, and other direct service providers.

If you see your team reflected in this blog post, it’s okay! Every time I’ve ever talked to a team using one of these strategies, they were doing so with the best possible intentions. However, it is absolutely critical that you change your information sharing practices if you see your team in this post. There is a lot of guidance out there about how to protect information and still be able to have meaningful conversations as a team. We’ve previously discussed the Confidentiality Institute and the Victim Rights Law Center. You can always reach out to me and others at SVJI for help and a place to start! Connect with us using the contact page or by emailing us as svji@mncasa.org.

Keep doing great work and keep protecting victim/survivor information! Leave any ideas or questions in the comments below.