Technology & Confidentiality Toolkit

Is it true that oral granting of consent is not best practice but oral withdrawal of consent is ok? Couldn’t someone impersonate the victim when withdrawing consent, too? Why the difference?

The reason for the difference is it ensures that the withdrawal of the release is immediate, while, when giving consent, a written consent ensures that nothing is released before s/he can put the agreement in writing. In essence, less harm (and program liability) can come with withdrawing consent (and waiting to verify the survivor’s identity) than might result from releasing information without proper consent.

Consent for release of personal information or withdrawal of consent should usually ONLY be given by the victim, so it’s important to ensure, as always, that no one is impersonating the victim. Best practice is to get the withdrawal in writing as soon as possible.

Can instructions from the survivor about to whom and what information, if any, can be released in the event she/he is missing or deceased be included in a release form?

Advocates may have this discussion, in a delicate way, with a survivor if the survivor is fearful for his/her life. It is a best practice to ask the survivor what he/she would want the advocate and program to do with his/her information in the case that something happens to him/her. It would be important to discuss how the advocate would know if the survivor is missing or deceased or if he/she fled and just didn’t tell anyone. Not knowing and releasing his/her information could be dangerous to the missing person or surviving family members of a deceased victim.

Because the VAWA confidentiality provision does not address the issue of deceased victims, a nonprofit DV/SA program should look to their state law for guidance regarding the survivability of any confidentiality or privilege between a victim and the program.

What about releasing information to Emergency Medical Services?

You can contact emergency medical services and tell them the nature of the emergency without telling them identifying information. In many cases, the survivor will be conscious and able to inform EMT staff themselves and decide how much they want to share. It is important to remember that even if it is appropriate to call 911, it is never appropriate to share her/his whole case history or file. Identifying information is not necessary for 911 to respond. What some advocates do is to respond “I don’t know” or give non-identifying information (“around 45 years old” instead of actual birth date) when asked these questions by the 911 operator. In addition, it is not appropriate to specifically comment on why s/he was receiving assistance from your organization.

For court advocates who are advocating in court (often the client is right there) are releases needed?

Non-profit based court advocates who are allowed by state law to speak in court on behalf of a survivor should have a release of information from the survivor and consent to appear in court. Before the hearing, the advocate should review with the survivor what will happen at the hearing, the role of the advocate, and what information s/he would like released. If appearing in court to support the survivor, but not actually speaking on behalf of a survivor, it’s important to notify the survivor that your presence can signal to observers that she is receiving your agency’s services.

When, in an emergency, we get an oral release for a particular piece of information, should we still fill out a form? What do other programs do?

Because VAWA requires a written release, we cannot recommend an oral release, and oral releases are never best practice. However, programs that do, on rare occasion, use oral releases generally go through the full release form, reading it aloud over the phone, and then note on the signature line that oral consent was given with the date. The advocate should verify the person’s identity before reading the form and signing it, and ensure that the survivor signs the form at the next possible opportunity.

In an urgent situation, can the signed release be faxed or emailed?

Yes, although the best practice is to have a signed release in your file that is signed in person. Organizations should decide on an individual basis when to accept a faxed or emailed release to ensure that a perpetrator or abuser isn’t impersonating a victim. Since it is easy to access another person’s email account and/or make an email (or fax) appear to be from someone else, always confirm a faxed or emailed release with the survivor by phone prior to sharing survivor information.

Most of our communication with survivors is over the phone, making it difficult to obtain written releases. How do we effectively advocate for our clients with other service providers/systems in these situations?

The first question that should be asked before any release of information is obtained (written or oral) is whether there is another way to meet the survivor’s immediate advocacy needs without the agency releasing personally identifying information about the survivor. For example, could the advocate support the survivor and help her/him make the call and talk to the other agency or professional herself/himself?  Your agency could also use three-way calling to facilitate the connection and the survivor can provide all personally identifying information themselves.

It’s perfectly reasonable to call another service provider and say “I spoke with a woman today and she really needs xxx, can I give her your number and have her call you?” In cases where you must share personally identifying client information, a release is essential. Because VAWA requires a written release, we cannot recommend an oral release, and oral releases are never best practice.

Do organizations running a hotline or crisis line fall under the requirements of needing a written consent to share identifying survivor information?

The requirements apply to all VAWA grantees and sub-grantees that are serving victims with VAWA funding.  All agencies should develop policies and protocols for determining on an individual basis how to obtain consent when talking with a survivor by phone.  Your organization may be able to make calls to inquire about services and resources without giving out any identifiable information about the survivor.  Although, depending on the situation and community, merely obtaining information about a perpetrator may confirm that the victim is seeking your services.  This should be acknowledged and the survivor notified.

In addition, it may be possible and effective to use three-way calling so that the survivor can speak directly to the agencies from which s/he is seeking information or assistance. 

Remember: Releases are only needed when you’re sharing a survivor’s personally identifying or confidential information with someone else.  If you are providing information to a survivor, no release is needed.