It is time a regulatory body is founded to protect patients’ confidentiality
Most of us have come across internet memes that portray how earnings of divorce lawyers and barbers are likely to skyrocket post-pandemic. However, in reality, while most of them are currently sitting idle, business for professionals providing psychological counselling/therapy has undoubtedly been thriving throughout the locked-down “holidays.”
Covid or not, since the well-being of mental health has only recently begun to receive some attention in Bangladesh, developing regulations to hold counsellors accountable for spilling your personal information is a far cry.
Usually in the first visit, counsellors tend be convincing of how the information given by their clients is going to remain confidential, and that only in exceptional cases, such as when they would feel that a client is likely to commit suicide or be of threat to another person, they might have to inform family members or the law enforcement.
While that might seem reasonable, and you would think that there must be an ethical code of conduct (in spite of the inclusion of such in their academic syllabus) they are bound by, you would be surprised to know that, in Bangladesh, no such codes are legally enforceable.
Unlike lawyers, who are regulated by the Bangladesh Bar Council, a body providing practising licenses to counsellors do not exist.
Hence, while on moral grounds, your counsellor might be at fault to have given away your secrets to someone else, you would not be able to hold them legally liable, and there exists no authority to punish the individual by either cancelling or suspending their practising license due to such grossly unprofessional conduct.
Thus, in reality, you only have their word of mouth to trust.
Data protection laws
According to Article- 43(b) of the Constitution of the People’s Republic of Bangladesh, every citizen has the right to the privacy of their correspondence and other means of communication. This provision is included in the chapter of fundamental rights.
Hence, the state is bound to implement the privacy of citizens, since otherwise, a victim might possess the right to move the Supreme Court with a petition.
Moreover, as per Sections 7(h), 7(i), and 7(r) of the Right to Information Act, 2009, no authority is bound to disclose any information which might reveal the privacy of one’s life, any information which might endanger life or physical safety of any person, or any personal information protected by any law.
Although there is no specific personal data protection law, the above certainly aids in protecting privacy. It is evident that these regulations might bear some fruit, only if your counsellor is associated with a particular hospital/ medical facility or an organization.
However, in case they are working freelance, what would your remedy possibly be in case your privacy is at stake?
In fact, even the infamous ICT and Digital Security Acts fail to fully protect personal data, considering the fact that the laws specifically concentrate on digital information. Meaning, if any personal data is misused from any record except those in computerized systems, it would be difficult to hold an offender liable for punishment.
A way out
Although even today, in Bangladesh, a person who goes for counselling or therapy might be stereotyped as “pagol” (lunatic) or one who has “no real-life problems,” the drastic increase in the popularity of counselling services is a sign of the fact that a regulatory body for psychologists, and enactment of an enforceable code of conduct, has become a crying need. More so, since the aforementioned laws are not quite useful in case of counselling.
Now think of it this way -- I am an individual with anxiety disorder, and I am going to have to trust my counsellor with certain secrets. Simply knowing that my counsellor would not face consequences upon maliciously (or carelessly) exposing my confidential information is enough to trigger my anxiety.
Jokes apart, drafting a non-disclosure/confidential agreement between a client and a counsellor seems to be the only way out at present. To give readers a clearer idea, a non-disclosure/confidential agreement is a legal document created between two parties that wish to share confidential information between themselves, while legally forbidding either party to disclose the information to any other person or entity.
Types of confidential information that might be applicable are such things as inventions, trade secrets, new products or manufacturing processes, or any other trade secret items or data. The agreement might be one-sided (designed to prevent one of the parties from disclosing the information), or mutual (whereby both parties cannot disclose any confidential information received from the other party).
For someone who needs help, and is determined to heal by voluntarily approaching a counsellor, the hassle of being subject to the Contract Act of 1872, and more importantly the thought of making your counsellor believe at the first instance that you do not trust them enough, might actually make them refrain from availing the services.
Hence, till the formation of a formal regulatory body and professional code of conduct, I believe this step should rather be taken from the counsellors’ end. An assurance in the form of a legally enforceable agreement (contract) is not only going to be comforting for clients, but is also likely to take this service-oriented business towards further prosperity.
Saquib Rahman is an Advocate of the Dhaka Judges’ Court, and a lecturer in the Department of Law at North South University.