What is a legal concept that prevents the disclosure of confidential information between a client and mental health provider?

WHAT IS CLIENT CONFIDENTIALITY?

Confidentiality includes not just the contents of therapy, but often the fact that a client is in therapy. For example, it is common that therapists will not acknowledge their clients if they run into them outside of therapy in an effort to protect client confidentiality. Other ways confidentiality is protected include:

• Not leaving revealing information on voicemail or text.
• Not acknowledging to outside parties that a client has an appointment.
• Not discussing the contents of therapy with a third party without the explicit permission of the client.

For licensed mental health professionals, confidentiality is protected by state laws and the Health Insurance Portability and Accountability Act (HIPAA). Therapists who break confidentiality can get in trouble with state licensing boards. They can also be sued by their clients in some cases.

Some people working in mental health, such as phone crisis counselors or life coaches, are not licensed by their state. These people may not be legally required to protect client confidentiality. Yet most agree not to reveal identifying information about their clients anyway.

EXCEPTIONS TO CONFIDENTIALITY RULES

Licensed mental health professionals can break confidentiality in some circumstances. One of the most common scenarios is when a client is a threat to himself/herself or others, in which case a therapist must notify the person in danger or notify someone who can keep the client safe. In these circumstances, therapists often seek hospitalization for their clients.

It is important to note that a therapist will not automatically break confidentiality if a client reports thoughts about suicide. Typically, a client needs to state an intent to act on those thoughts and have a specific suicide plan before hospitalization is considered. An individual will not be hospitalized against their will for simply seeking help.

Most therapists are happy to go over any confidentiality concerns before starting therapy. A therapist may also be required to break client confidentiality if they believe a child or disabled person is being abused. For example, if a child has unexplained injuries and acts frightened of their parent, a therapist may have reasonable suspicion of abuse. As a mandated reporter, they have a legal duty to report their suspicions to authorities.

In rare cases, therapists can be forced to testify against their clients through a subpoena. However, it is much more difficult to force a therapist to testify than it is to force a non-licensed mental health professional. Laws governing therapists are much stricter about confidentiality.

Confidentiality for Children

Confidentiality for children is a hotly contested issue. In many jurisdictions, minors are not considered developed enough to consent to treatment, so parents are expected to consent on their behalf. Thus, minors do not have the strong confidentiality rights that most adults have in those places. However, in states like Washington, minors 13 or older do have comparable or even identical rights to seek health care (including mental health care) and to have their privacy protected as adults.

A lack of confidentiality can interfere with the therapeutic relationship. A child may be reluctant to disclose information to a therapist if they know their parents will eventually learn about it. To promote trust with the minor in therapy, many clinicians seek the permission of the clients’ parents to keep therapy confidential.

Even when parents do not agree to confidentiality, therapists will not typically reveal details about their discussions in therapy. Instead, they will give information about broad treatment goals and progress. For example, a therapist may report that a child has anxiety and is being treated with cognitive behavioral therapy. However, they would not have to report that the child is stressed about getting low grades in school.

Confidentiality Forms

At the beginning of treatment, a therapist may offer a client paperwork detailing their privacy policy. This information may be part of the informed consent form, or it could be its own paper.

Most confidentiality forms start off with a small paragraph explaining how the information shared in therapy will be kept private. The form may then list scenarios when confidentiality may be broken, such as if a person declares suicidal intent.

If a therapist takes insurance, they may ask for a client’s permission to share relevant information with the insurer. Typically, the information revealed is limited to the diagnosis being treated and any medications required. According to HIPAA, therapists should not reveal any more information than is necessary to ensure coverage. If an individual refuses to give permission, they may still go forward with therapy, but they will not be able to get insurance to pay for it.

Most therapists are happy to go over any confidentiality concerns before starting therapy. You can find a licensed therapist here.

References:

1. Behnke, S. H., & Warner, E. (n.d.). Confidentiality in the treatment of adolescents. American Psychological Association. Retrieved from http://www.apa.org/monitor/mar02/confidentiality.aspx
2. Confidentiality agreement template. (n.d.). Retrieved from https://psychology-info.com/confidentiality-agreement-template
3. Confidentiality. (n.d.). Retrieved from http://www.4therapy.com/therapy/about-therapy/confidentiality-1841
4. Does a parent have a right to receive a copy of psychotherapy notes about a child’s mental health treatment? (2017, September 12). Retrieved from https://www.hhs.gov/hipaa/for-professionals/faq/2094/does-parent-have-right-receive-copy-psychotherapy-notes-about-childs-mental-health-treatment.html

Last Updated: 12-14-2020

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Information obtained by mental health providers (e.g., psychologists, psychiatrists, social workers, mental health counselors and other mental health professionals) in connection with providing professional services to a patient is subject to a higher standard of confidentiality than is other types of health information.

These laws tend to fall into two categories – confidentiality laws, which impose an affirmative duty on the provider to maintain the confidentiality of protected information, and privilege laws, which establish an evidentiary privilege for such information that may be exercised by the patient.

Most confidentiality laws apply to information acquired by a mental health provider in connection with counseling or otherwise providing services to a patient. This includes the type of services provided, the dates and/or frequency of services, the results of clinical tests, and the patient’s symptoms, diagnosis, and treatment plan, as well as confidential communications between the patient and the provider. Mental health providers are permitted to disclose such information with the patient’s written consent and in limited other circumstances, including consulting with another provider about the patient’s treatment or pursuant to a court order.

Additionally, most confidentiality laws contain a so-called “safety” or similar exception, which allows (and in some instances, requires) a mental health provider to disclose confidential information to protect the patient or another person from serious harm. This includes disclosures made to seek the involuntary hospitalization of a patient or to otherwise prevent the patient from causing serious injury or death to himself or to another person, and mandated reports of suspected abuse or neglect of a child, elderly or disabled person. G.L. c. 112, §§129A, 135A, 172, Commonwealth v. Vega, 449 Mass. 227 (2007), 251 CMR 1.11, 258 CMR 22.00, and 262 CMR 8.02.

Mental Health Treatment Information: Evidentiary Privileges

Mental health privilege laws, on the other hand, apply in more limited circumstances and to a narrower scope of information. Specifically, most privilege laws apply to court and administrative proceedings in which confidential communications between a patient and a mental health provider may be introduced as evidence. Under these circumstances, the patient has the privilege of refusing to disclose, and of preventing the provider from disclosing, any such communication, subject to limited exceptions.

Under most mental health privilege laws, the patient’s privilege does not apply to communications made during a court-ordered examination (if the patient was warned that the communication was not privileged) or to cases where the patient has introduced his mental condition as an element of a claim or defense. In addition, most privilege laws permit a judge in child custody cases (including Care and Protection, CRA, guardianship cases, and termination of parental rights cases) to order the disclosure of communications between a provider and a patient (other than the child) if the judge determines that the information bears significantly on the patient’s ability to provide suitable care and custody and it is more important to the welfare of the child to permit the disclosure than it is to protect the patient-provider relationship. In termination of parental rights cases the patient must also have been warned that the communication is not privileged. G.L. c. 112, §§135B, 172, 172A; G.L. c. 233, §20B; Commonwealth v. Vega, 449 Mass. 227 (2007). 

In the context of a legal proceeding in which a minor has the privilege to prevent the disclosure of confidential mental health information, the minor’s parent or guardian generally has the right to decide whether to exercise or waive such privilege. However, in cases involving child custody (e.g., Care and Protection, termination of parental rights, guardianship of minor, and CRA cases), where the child and parent or guardian may have conflicting interests, a parent or guardian may not waive the child’s privilege. Instead, the court may appoint a guardian ad litem to decide whether the privilege should be waived. See Adoption of Diane, 400 Mass. 196 at 201–02. Legal authority for this practice is found in the statutes governing the psychotherapist and social worker privileges. See G.L. c. 112, §135B; G.L. c. 233, §20B. They provide that if the client is not competent to exercise or waive the privilege a guardian shall be appointed to act in the client’s behalf. See G.L. c. 233, §20B. Any party may file a motion for appointment of a guardian ad litem.

Substance Use Disorder Treatment Information

Providers that treat substance use disorders are also subject to a “heightened” duty of confidentiality under both federal and state law. 42 C.F.R. Part 2). See also 42 U.S.C. 290dd-2 and G.L. c. 111B, §11. Federal law limits the circumstances under which a provider in a federally assisted program can disclose information obtained in connection with treating a patient with a substance use disorder (or providing a diagnosis or referral for such treatment) if the information identifies, or could be used to identify, the patient as having a substance use disorder. Providers may disclose such information with the patient’s written consent, which must meet the detailed requirements of federal law. 42 C.F.R. §2.31 details the elements that must be in a release. See Appendix D: 42 CFR Part 2. Providers may disclose information without a patient’s consent, in certain limited circumstances, such as pursuant to a court order, 42 C.F.R. §2.61, in a medical emergency, 42 C.F.R. §2.51, or to report incidents of child abuse and neglect. 42 C.F.R. §2.12(c)(6). Those who receive information from a substance use disorder treatment program are prohibited from re-disclosing that information. 42 C.F.R. §2.32.

A minor's parent or guardian may never consent to the disclosure of the minor's substance use disorder treatment information. A covered substance use disorder treatment provider must obtain the minor's consent to disclose such information to the parent or guardian or to a third party. 42 C.F.R. §2.14, see also Authorized Representatives and Special Considerations Regarding Consent for Minor Patients, below. Disclosure is subject to 42 C.F.R. §§2.61, 2.63 and 2.67.