Confidentiality refers to the client’s right to have information shared within the therapeutic relationship kept within the bounds of the client-therapist relationship. Privilege is a similar legal concept that refers to the client’s right to keep confidential information from being disclosed in a legal proceeding. For minors, their legal guardian(s) usually hold privilege until they reach legal adulthood at age 18. While guardians are often legally allowed to attain information about their child’s services, it’s generally advised that parents respect the therapist-client relationship in order to allow for maximal safety and trust in the relationship, and therefore, provide a foundation for maximal benefits. This is particularly true for adolescents who often become increasingly resistant as they feel their privacy is at risk of being violated.
The requirement to protect the privacy of client communications and data is one of the most important obligations governing the actions of all types of mental health professionals. It is arguably the most essential aspect of the therapeutic process because it allows people to feel comfortable sharing the most intimate details of their lives without having to worry about the information being shared with others. Confidentiality is protected at both the federal and state level and is also covered in the ethical rules and guidelines set forth by the professional organizations associated with the various types of mental health practitioners (see this article for an overview of mental health professionals). Therefore, there are slight variations in terms of confidentiality rules across different states and professional licensures.
While the exact rules vary, the underlying emphasis on the importance of maintaining confidentiality is emphasized for all mental health professionals. In general, practitioners should discuss the nature and limits of confidentiality with every person they work with at the outset of treatment and whenever there are relevant changes in circumstances, such as moving from private pay to billing an insurance company. Clients should be given an opportunity to ask questions about the confidentiality policies and acknowledge either verbally or in writing that they understand the information. Clients should also have the option to receive a written copy of the policy at their request.
For the most part, confidential information can only be disclosed when a client gives specific consent to do so. If a client decides to provide consent to release information, they usually complete a form that describes the circumstances and specific information about the disclosure (who it is shared with, what information is shared/not shared, and how long the information can be shared with the other individual/organization). Clients may revoke their consent at any time, either verbally or in writing. In nearly all cases, confidentiality survives the death of the client; that is, the deceased client continues to be entitled to confidentiality and the practitioner is required to protect their records and information.
Consent for disclosure, often termed a release of information, is normally required in order for therapists to share confidential information. However, there are 2 other circumstances in which confidential information may be shared without the client’s permission: 1. When permitted by law and 2. When mandated by law. Permitted by law refers to situations where the therapist has a legal exception to confidentiality, such as to protect their client (e.g., suicide) or themselves (e.g., threat of harm from client or someone related to client); to obtain appropriate professional consultation; or to engage in necessary professional services (e.g., billing insurance). In cases of consultation and billing, therapists are required to disclose only the smallest amount of information necessary to successfully address the need or situation.
There are also situations that legally mandate a breach of confidentiality. Mandated reporting laws refer to instances where a therapist is legally required to share certain information at certain times. These laws vary by state and licensure type but generally relate to suspected abuse of a child or impaired adult (physical, sexual, neglect, etc.) or serious threats of imminent violence against a reasonably identifiable victim (termed the California Tarasoff statute). Information may also be legally disclosed if a client files charges against the therapist (e.g., malpractice). Mandated reports of abuse are made to the relevant agency (e.g., child protective services) in a timely fashion (usually 24-hours) and often result in follow-up actions by that agency (e.g., a home visit). Mandated reports related to the Tarasoff statute usually require that the practitioner notify the intended victim(s) and police and take whatever other reasonable steps possible to help prevent the client from taking that action (e.g., hospitalization).
In terms of legal situations, issues of subpoenas, court orders, court-appointed evaluations, and court-ordered therapy also relate to the topic of confidentiality. Subpoenas are requests for information that are generally issued by attorneys, while court orders are signed by a judge and carry the full weight of the law. When faced with a subpoena, a practitioner would contact their client to inform them of the subpoena and request permission to release records. If given permission, the records are released; if not, the practitioner can request that the subpoena be quashed (voided) and/or assert patient-therapist privilege on the client’s behalf. Ultimately, the therapist may be required to disclose the information if ordered by the court. In terms of court orders, if the client does not want information shared, the practitioner can request that the judge modifies the court order (e.g., limit the disclosure to only the parts relevant to the given situation). If the judge declines the request, the practitioner must comply with the court order.
Court-appointed evaluations refer to situations in which a mental health practitioner, most often a psychologist, is retained by the court to evaluate an individual (e.g., to determine competency to stand trial or parental custody rights). Court-appointed evaluations are an exception to privilege; clients do not have confidentiality rights (any and all information gathered may be shared with the court). In court-ordered therapy, the individual is ordered to seek therapy but retains their right to confidentiality. In most cases, the client ultimately signs a release of information in order to authorize disclosures to the court so that the clinician can communicate with the court (e.g., to demonstrate that the client has been receiving services and working on relevant issues).
The final issue related to confidentiality is group therapy. Of course, a clinician cannot fully enforce confidentiality in group settings because they cannot control what the group members share outside of the group. Mental health professionals usually review the importance of confidentiality at the initial group meeting as well as periodically throughout meetings, as warranted. As a group member, it is each individual’s ethical duty to uphold their fellow member’s right to privacy and to never share material learned about other individuals outside of group meetings.