When does a therapist have to break confidentiality? Confidentiality is sacred in psychotherapy. Without it, there is no degree of trust between client and therapist. Think about it. Why would someone tell their deepest darkest secrets to a therapist if they thought that person could just tell whoever they wanted? The rules regarding the use of confidentiality are varied and do have exceptions. Before we explore those limits in more detail, let’s briefly discuss what confidentiality means in a counseling situation.
What is Confidentiality?
Confidentiality is the assurance that the information a therapist receives about their client will not be shared with anyone else without the client’s consent. Therapists have both a legal and ethical obligation to keep information about their clients confidential. Additionally, there is no time limit to confidentiality; it pertains even after a client terminates therapy. Despite the importance of confidentiality, there are times when a therapist has a duty to break it. Keep in mind, that each state has specific laws regarding confidentiality and occasions when it must not be followed. The following are instances where confidentiality needs to be broken:
Abuse and Neglect of Children
This is one of the few laws that all states have that mandates therapists to break confidentiality. If a therapist finds out—or even strongly suspects—that a child is being abused or neglected (or that they might be abused in the future) they must report it to the child protective services agency in their state. When reporting abuse, it should always be done as soon as possible. If you have the opportunity, it is advisable to tell the parents, even if they are the people that allegedly abused the child.
Abuse and Neglect of the Elderly or Dependent Adults
Similar to children, most states have laws that protect the elderly or disabled from abuse and neglect. Depending on the state, a therapist that does not report suspected abuse might even be charged with a crime. For example, Utah will charge a therapist with a class B misdemeanor for a failure to report abuse.
Duty To Protect
Duty to protect laws cover both threats to others and self-harm. Here are some of the considerations:
Threats to Others
All states require therapists to take action if their client makes a specific legitimate threat of physical harm to a particular person. But it is not necessarily mandatory if the threat is more general. For example, a client who remarks that they would like someone to die, but says they have no specific plan to harm that person right now, does not have to break confidentiality. However, they have permission to tell someone if they feel it might be warranted. Similarly, if there is a general threat to a group of people rather than a specific plan to one person the therapist faces a choice as to whether break confidentiality. When a therapist exercises their duty to protect, they must alert the potential victim, people close to the victim, and/or inform local law enforcement.
Threat to Self
Maybe somewhat surprisingly, the therapist has more of a choice whether to break confidentiality over a client’s threat of self-harm. There are only a few states that legally mandate that a therapist report to others if a person states their intent to hurt themselves. However, breaking confidentiality is almost always permitted in these situations.
Therapists need to consider many variables when they decide whether to break confidentiality in cases of self-harm. Regrettably, it is not always cut and dry. It is important to note that suicidal thoughts do not always equate to suicidal behavior. Many clients report feeling suicidal at times but very few act on those impulses. Clients need to express intent and a specific plan before a therapist should consider breaking confidentiality. Even instances of self-harm may not need to be reported. For example, a person who makes light cuts on their arm but has no intent to seriously harm themselves probably does not reach the threshold of a significant threat to self.
Almost no therapist wants to testify or give over their records to a court proceeding. However, if a judge orders that a therapist must provide a client’s information then they must do so or risk going to jail. A therapist can always choose to fight a subpoena—especially if it is served by a lawyer—but a judge’s decision is final.
Most states require therapists to report misconduct by other helping professionals, most often other clinicians that provide mental health treatment. Some states, however, require therapists to report particular misconduct by any healthcare professional. For example, Florida law states that a therapist must report sexual misbehavior by anyone in a healthcare profession. Therefore, if your client tells you they are having sex with their psychiatrist, you will have to report it to their licensing board.
National Security Investigations
This is not likely to occur in your practice (unless you live near Washington DC) but you are mandated to turn over client information to federal agencies for the purpose of a national security investigation. So, if the FBI comes calling, be prepared to answer questions in an interview or give them access to client records.
A Note on Child Confidentiality
Legally speaking, a child does not have many rights in therapy. A parent must give consent for treatment and legally you can share a minor’s information with their parents. However, telling parents everything that happens in therapy is usually not clinically indicated, especially for older adolescents. You are likely going to want to retain a child’s confidentiality as much as possible. Like adults, you are mandated to tell parents information related to the safety of their child, but you don’t have to volunteer to share other details about their life. It is a good idea to explain to parents how you want to maintain the confidentiality of their children at the beginning of therapy and have them sign an agreement. That might avoid some power struggles later. But if a parent demands to know about their minor child, they have a legal right to that information.
Confidentiality is a vital component of the effectiveness of psychotherapy. Some might say that therapy is nearly useless without it. However, safety and legal issues sometimes make it impossible to maintain. In many instances, it is up to the therapist as to whether they should break confidentiality. If you have a choice, and safety is not compromised, it is better to err on the side of confidentiality. After all, the client-therapist relationship is crucial to success.
Finally, keep your documentation such as your privacy and confidentiality policy intact: always review your documentation with your clients; have them sign all documents and store them securely. An EHR and therapy notes software such as TheraPlatform can help you store all documents securely. In addition, TheraPlatform has built -in library of intake/consent forms which can be modified according to your needs. You can also build any form from scratch and electronically send them to clients and request e-signature. TheraPlatform offers a free 30-day trial, and their pricing is very affordable!
Note: Please note that this blog post is for educational purposes only and it is not a legal advice. If you have legal questions about confidentiality, please contact an attorney.