Confidentiality is one of the cornerstones of a strong working relationship between a therapist and client. A client’s understanding that their therapist will protect their privacy by not revealing the contents of therapy sessions encourages the sharing of intensely-personal thoughts, feelings, and beliefs. However, there are circumstances where break confidentiality is required. Here is what you need to know about confidentiality requirements, when you might be compelled to break confidentiality, and how to protect yourself and your practice.
Each counseling association has a code of conduct that dictates expectations regarding the rules of confidentiality. Generally speaking, most associations encourage therapists to maintain confidentiality except in cases where they’re required to report or feel strongly compelled to based on professional judgment. However, it’s not as straightforward as just complying with your association. Most states have laws that either permit or require mental health professionals to disclose information about clients in certain situations. Additionally, the federal government also provides guidance in the Health Insurance Portability and Accountability Act (HIPAA).
Confidentiality is a hotly-disputed topic due to the concern that clients may not fully disclose if they believe that confidentiality may not be maintained. In order to honor client-counselor confidentiality, you’ll want to familiarize yourself with the legal regulations based on your location as well as your association’s rules.
In the APA’s Ethical Principles of Psychologists and Code of Conduct, section 4.05(b) states, “Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to (1) provide needed professional services; (2) obtain appropriate professional consultations; (3) protect the client/patient, psychologist, or others from harm; or (4) obtain payment for services from a client/patient, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose.”
The NASW Code of Ethics, in section 1.07c, states, “Social workers should protect the confidentiality of all information obtained in the course of professional service, except for compelling professional reasons. The general expectation that social workers will keep information confidential does not apply when disclosure is necessary to prevent serious, foreseeable, and imminent harm to a client or other identifiable person. In all instances, social workers should disclose the least amount of confidential information necessary to achieve the desired purpose; only information that is directly relevant to the purpose for which the disclosure is made should be revealed.”
With few exceptions, HIPPA treats mental health information the same as other health information. Those who break confidentiality may be sued by clients in some cases, and they can get into trouble with state licensing boards as a result.
HIPAA does also allow a therapist to secure a client’s permission to share relevant information with a health insurer for the purpose of being reimbursed for claims. This typically includes only the diagnosis and any medications required and it specifically states that the therapist should not reveal more than is required to ensure coverage. Should a client refuse permission, then insurance may not be used for payment.
Most states also have legislation regarding confidentiality disclosures, and it’s important that therapists understand all guidelines and regulations based on their location. The National Conference of State Legislatures provides guidance of confidentiality regulations for all of the states. As of this writing, only a handful of states have no duty to report if there is concern about violence. The majority of states either have a mandatory duty to warn or report or one that is permissive but not obligatory. As a result of the differences across states, it’s especially important for therapists to be knowledgeable about the regulations they are required to follow in their location.
There are a few situations that may require a therapist to break confidentiality:
One example necessitating that confidentiality be broken is in a case where you believe a child may be being abused. If the child has unexplained injuries and appears to be frightened of their parent or primary caregiver, that may be enough for a reasonable suspicion of abuse. In this case, depending on your location, you have a legal duty to report this suspicion to the authorities.
But whether reporting is a “must” or a “may” will depend on the state where the therapist in the situation practices. Though most states do have legislation relating to these cases, some require reporting and some merely allow it. In states where it’s allowed, it’s up to the therapist to use their professional judgment to determine if the situation warrants reporting and breaking client confidentiality.
However, even these situations have some grey area as they may require some level of judgment. One example is in the case of a client being a danger to themself. A therapist will generally not report unless there is an intent and a plan to act on suicidal thoughts. Just having suicidal thoughts is not enough cause to break confidentiality. A person shouldn’t be hospitalized against their will for seeking help, but only if they actively plan to self-harm.
In states that do not mandate reporting in these situations, it’s up to the therapist to make the call regarding the risk. In general, the mental health associations advocate for empowering mental health professionals to exercise their judgment.
Additionally, your case notes will provide some protection. By keeping detailed documentation of all sessions, including discussion points and observations, you’ll have documented information that supports the need to disclose if you believe confidentiality must be broken.
While confidentiality issues can be complex, you can usually avoid problems by knowing what your state law says regarding confidentiality, taking good session notes, and letting your professional judgement guide you. These situations are always challenging, but you can be sure you’re prepared.