Paul Sanchez
Confidentiality is critical to the effectiveness of mental health professions and society. Under United States confidentiality laws, medical and mental health professionals must abide by the privacy regulations laid out under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Generally, therapists are mandated to report when a client poses an immediate danger to themselves or others, intends to commit a crime, or is a victim of criminal activity. However, the laws of each state vary, and therapists are not always required to report all illegal activity, especially if it does not pose a danger to the client or others. For example, a school counsellor may not be required to report a student's parent seeing a sex worker, but they would likely have to report child abuse.
| Characteristics | Values |
|---|---|
| Confidentiality laws | Health Insurance Portability and Accountability Act of 1996 (HIPAA) |
| Therapist's duty | To share confidentiality laws with the patient in the first session |
| Patient's rights | Access their own information and records |
| Patient's rights | Information will only be shared with others with their consent |
| Exception to confidentiality | If a client poses a risk to themselves or others, or for legal reasons, information may be shared with other agencies |
| Exception to confidentiality | If a client is a child or a vulnerable adult who is at risk of abuse, is being abused, or is a victim of criminal activity |
| Exception to confidentiality | If a therapist fails to disclose things like suicide risk, intent to harm, or risk of child abuse |
| Exception to confidentiality | If a patient poses an immediate danger to themselves or others, shares in a therapy session that they plan on committing a crime, when a child is the victim of domestic violence, or when sexual abuse is known to be taking place |
| Exception to confidentiality | If a client under 18 is being abused — physically, sexually, emotionally, or through neglect |
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What You'll Learn
Confidentiality laws
The Health Insurance Portability and Accountability Act (HIPAA) is a federal law that provides a baseline level of protection for patient confidentiality. It states that psychologists have a primary obligation to protect confidential information and should take reasonable precautions to do so. The HIPAA Privacy Rule also grants individuals the right to request restrictions on the use and disclosure of their protected health information.
In addition to HIPAA, the American Psychological Association (APA) has published ethical principles and a code of conduct that includes guidelines on confidentiality. According to the APA, psychologists should discuss the limitations of confidentiality with clients, obtain permission before recording sessions, and only document the necessary information to minimise intrusions into privacy.
State laws may also outline specific situations in which counsellors or therapists must break confidentiality. For example, in some states, clinicians must disclose information if a client poses an imminent danger to themselves or others, if child, elder, or dependent adult abuse is suspected, or if the therapist receives a qualifying court order. In California, there are more than 20 situations defined in state law where therapists are permitted but not required to break confidentiality.
School counsellors have additional considerations when it comes to confidentiality. They must adhere to school board policies and federal and state laws regarding student records, health information, and special services. School counsellors should also inform students and families about the limits of confidentiality, especially when consulting with other professionals or when privileged communication is not granted by state laws and local guidelines.
While counsellors and therapists generally strive to protect client confidentiality, there may be times when breaking confidentiality is necessary to prevent serious and foreseeable harm or to adhere to legal requirements. In such cases, clinicians should use ethical decision-making models to determine potential courses of action and their consequences.
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Child abuse reporting
In the United States, school counselors are mandated by the Child Abuse Prevention and Treatment Act of 1974 to report suspected cases of child abuse and neglect to the proper authorities. They play a critical role in the early detection and recognition of abuse and are required to report it to Child Protective Services (CPS) or, in some cases, the police. This is in addition to their role in guiding and assisting students and providing them with a safe space to talk and process their feelings.
While laws and definitions pertaining to child abuse and neglect vary among states, school counselors are generally required to report suspected cases of physical abuse, psychological maltreatment, sexual abuse, medical neglect, and sex trafficking. They are also trained to identify signs of suspected child abuse or neglect, such as ill-fitting or filthy clothes, consistently poor hygiene, untreated illnesses or injuries, frequent absence from school, inappropriate sexual knowledge or behaviour, and running away from home.
In California, for example, the Department of Education provides guidelines and training modules to help school employees and educators identify and report suspected cases of child abuse or neglect. School volunteers are also highly encouraged to report any suspected cases and receive training in identification and reporting.
It is important to note that school counselors are not required to report all illegal activity. They are bound by confidentiality agreements and will only report if they feel that a student or someone else is in imminent danger. Counselors work to build trust with students and create a safe space for them to share their experiences.
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Imminent danger to self or others
The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule is designed to offer a minimum level of protection for clients. However, mental health providers are permitted to disclose PHI about a patient if they present a serious danger to themselves or others. This disclosure must be consistent with applicable laws and ethical standards. For example, if a teenage patient makes a credible threat to inflict serious and imminent harm on fellow students, the provider may alert law enforcement, a parent or guardian, school administrators, or other relevant parties to prevent or mitigate the potential harm.
School counselors, for instance, are not required to report all illegal activity. They are bound by confidentiality agreements and will only report issues if they feel that the student or someone else is in imminent danger. This includes situations where the student expresses suicidal thoughts or intentions to harm others. In such cases, the counselor may take action by reporting to the authorities, informing the potential victim, or both.
In the context of involuntary commitment laws, "imminently dangerous to self or others" often refers to situations where an individual poses a real and present threat of substantial harm to themselves or others. This could include recent threats or attempts of suicide or serious bodily harm, or indications that the person is unable to meet their basic needs for nourishment, medical care, shelter, or self-protection without supervision and assistance.
It is important to note that the interpretation of "imminent danger" may vary depending on the specific laws and regulations in different states or countries. The definition provided by the Occupational Safety and Health Administration (OSHA) states that imminent danger in a place of employment refers to conditions or practices that could reasonably be expected to cause death or serious physical harm immediately or before the situation can be controlled through enforcement procedures. This definition focuses on the urgency and severity of the threat, emphasizing the potential for immediate harm.
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Therapist's duty to warn
The "duty to warn" is a legal obligation for therapists to breach client confidentiality if the client is deemed a risk to themselves or others. This duty was established in 1976 following the landmark Tarasoff v. Regents of the University of California case, where the California Supreme Court ruled that therapists must take action if they determine that their patient presents a serious danger of violence to another person. This may include warning the intended victim, notifying the police, or taking other reasonably necessary steps.
The duty to warn has since been expanded by subsequent legal decisions, such as the 1983 case of Jablonski by Pahls v. United States, which established a mental health provider's obligation to review a client's previous treatment records to assess their potential threat to themselves or others. These cases have set a precedent for therapists' legal responsibilities to protect the public's safety, even if it means breaking confidentiality.
It's important to note that the duty to warn is not limited to identifiable victims or imminent violence in all states. Some statutes have broader parameters, applying to general threats not limited to specific individuals. However, the duty to protect laws generally focus on the client's potential for violence and are triggered by communications within the therapeutic relationship.
While therapists have a legal duty to warn, it is also supported by ethical guidelines. The American Psychological Association (APA)'s "Ethical Principles of Psychologists and Code of Conduct" permits disclosure without consent if it will protect the client or others from harm. This guidance also emphasizes the importance of privacy and confidentiality, which therapists are primarily obligated to protect. Therapists must discuss the limitations of confidentiality with their clients and gain permission before recording sessions or writing reports.
In summary, the duty to warn gives therapists the right and obligation to breach confidentiality if they believe their client poses a risk to themselves or others. This duty has been established and expanded upon by legal precedents and ethical guidelines, balancing the need for client privacy with the responsibility to protect public safety.
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State-specific reporting laws
In most states, therapists are mandated by law to report situations where a patient poses an immediate danger to themselves or others. This includes instances of self-harm, suicide ideation, and intent to harm others. Therapists are also required to report suspected child abuse, including child pornography in certain states, and the abuse of vulnerable or dependent adults, such as elder abuse.
However, the reporting requirements for intimate partner violence (IPV) vary across states. Some states mandate reporting, while others allow therapists to use their discretion, focusing on helping the abused partner create a safety plan. Similarly, therapists are generally not required to report past crimes, with exceptions for child abuse, elder abuse, and dependent adult abuse reporting laws.
State laws also differ in their approach to permissive duty to protect or warn. For example, Arizona, Oregon, Texas, and Florida have permissive duty laws, allowing therapists to decide what information to share with authorities. In contrast, states like Maine, North Dakota, and North Carolina do not permit therapists to breach confidentiality, prioritizing the sanctity of the therapeutic relationship.
To navigate these complex and nuanced state-specific reporting laws, therapists must be well-informed about the laws in their state of practice and any relevant case law that may impact their duty of confidentiality.
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Frequently asked questions
No, unless the student is a danger to themselves or others, school counselors are bound by the confidentiality agreement.
This depends on the state. Therapists are generally required to report child abuse, elder abuse, and dependent adult abuse. They may also break confidentiality if information is required as a legal obligation to determine mental state or competence in criminal cases or any other legal proceeding.
Therapists must abide by the privacy regulations laid out under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Under HIPAA, therapists are charged with sharing confidentiality laws with the patient during the first session.
