You undoubtedly understand the importance of confidentiality with your clients. Knowing that whatever they share with you is confidential builds a safe and trusting environment where clients feel comfortable discussing personal and sensitive matters with you. But what if they tell you something others really need to know, like information that results in a safety issue? When can a therapist break confidentiality? This post explains.
Regulations and Laws that Define Confidentiality
Confidentiality is a fundamental aspect of therapy that promotes trust, open communication, and the overall well-being of clients. To uphold confidentiality, therapists are guided by a comprehensive framework of regulations and laws that prioritize protecting client information. These regulations establish a secure and confidential environment for therapeutic work.
- State Laws – States have different laws regarding confidentiality. For example, some states may dictate that minors can’t give consent and, therefore, you can disclose private information to their legal guardians. States also may have different laws regarding therapy records and communications in court proceedings.
- HIPPA – Health Insurance Portability and Accountability Act (HIPAA) is a set of standards for protecting people’s medical records and other personal health information. It applies to healthcare providers, including mental health professionals. HIPAA establishes requirements for the privacy and security of protected health information, including when professionals can disclose information to others.
- Ethical Codes – Some professional bodies have their own ethical codes that members agree to abide by. For example, members of the American Psychological Association (APA) commit themselves to uphold the standards outlined in the APA Ethics Code and abiding by the rules and procedures established to enforce these standards. The code of ethics is written in favor of upholding confidentiality.
- Informed Consent – Clients sign informed consent documents before treatment. These documents are an agreement with you regarding confidentiality and can include instances in which you would break it.
- Court Orders and Legal Proceedings – You may be required to disclose client information if you receive a court order or subpoena. In such cases, you must comply with the legal requirements and provide the requested information as directed by the court.
- Duty to Warn/Protect – Specific laws or legal precedents require therapists to breach confidentiality and warn or protect people at risk of harm from a client. These laws balance the duty of confidentiality with the responsibility to ensure the safety of others. Some require the potential victim to be known, and others may apply to more general threats, such as if your client will not disclose who they intend to harm or just indicate that they intend to harm people in general, such as through a mass shooting.
What’s Considered Confidential?
Mental health care is healthcare. Therefore, as a therapist, you are bound by the same rules and regulations as other types of healthcare providers.
In general, almost everything shared with a therapist should be considered confidential and treated as such, including personal details, thoughts, feelings, and any other information disclosed during therapy sessions. You’re expected to keep this information private and not disclose it to others without the explicit consent of your clients.
Instances that Require a Break in Confidentiality
While privacy should be the norm in mental health treatment, a number of exceptions require a therapist to break confidentiality. Therapist-mandated reporting is in place to protect the safety and well-being of the client or others. Therapists have a duty of care, meaning they must report certain situations to the relevant people. So, when can a therapist break confidentiality?
Situations where you may need to break confidentiality include:
- Danger to Self – If a client expresses a clear and imminent risk of self-harm or suicide, you must take action to ensure the client’s safety. You have a legal obligation to report suicidal thoughts if you believe that your client may act on them. This reporting may involve notifying emergency contacts, contacting the authorities, or arranging hospitalization, when appropriate.
- Danger to Others – If a client presents a credible and specific threat of serious harm to another person or group of people, you are generally obligated to take action to protect the potential victims. This action may include warning the person at risk, notifying law enforcement, or taking other necessary steps to prevent harm.
- Discussion About Abuse of Vulnerable Populations – You’re legally mandated to report any suspicion or disclosure of ongoing child abuse, neglect, or endangerment to authorities. This obligation also extends to vulnerable adults, such as the elderly or people with disabilities, who may be at risk of abuse or neglect.
- Crime That’s a Danger to Others – If a client discloses information about a planned or ongoing crime that threatens others’ safety, you may be obligated to report it to the appropriate authorities. The duty to warn and protect extends to situations with a clear and immediate risk of harm to identifiable people.
- Insurance Filing Purposes – When clients use health insurance for therapy, you may need to provide information necessary for billing purposes. This information typically includes basic demographic information, diagnostic codes, and the duration and type of services provided. You should aim to provide the minimum necessary information to maintain client privacy as much as possible.
Additionally, some clients may grant permission to share specific information with other healthcare professionals or people involved in their care. For example, clients may allow their therapist to communicate with their primary care physician, a psychiatrist, or another therapist. You should also get permission to leave voicemails regarding appointments in case other people can access their voicemails and may hear the details.
What to Do When You Have to Break Confidentiality
As mentioned above, sometimes, there are situations when a therapist has to break confidentiality. In these cases, you need to ensure it is the most appropriate course of action and that you are protected from any legal repercussions.
Steps to take when you have to break confidentiality include:
- Review Guidelines – Before deciding to break confidentiality, carefully review the relevant legal and ethical guidelines applicable to you. This review will help ensure that breaking confidentiality is justified and necessary in the specific situation. There may be other choices you could make that would be more appropriate.
- Gather Documentation or Proof – Make sure you have documented evidence or other proof to support the decision to break confidentiality. This proof can include any relevant records, statements, or observations demonstrating the need for disclosure. This documentation shows that you’re not making the decision lightly, and it will help to back you up in case of repercussions.
- Seek Guidance From Supervisors or Colleagues – Consult with your supervisor, a trusted colleague, or a professional peer to discuss the situation and seek advice. They may provide valuable insights. It could be that they’ve been in a similar situation or know of an option you haven’t considered.
- Consider Legal Counsel – In particularly complex situations, it may be advisable to consult with legal counsel to ensure compliance with relevant laws and regulations. Legal professionals can provide specific guidance to be sure you’re following all laws and are legally protected. Whether to involve legal counsel also may be something your supervisor can advise on.
- Inform the Client – If it’s safe and appropriate, communicate with your client about the need to break confidentiality and explain the reasons. Transparency and open communication can help maintain trust and ensure their understanding of the situation.
- Limit the Disclosure to Necessary Information – When breaking confidentiality, it’s important to disclose only the minimum amount of information required to address the specific concern or situation. Remember that client-therapist confidentiality still covers most of what you’ve been told.
- Document the Disclosure Process – Maintain thorough documentation of the entire process, including the reasons for breaking confidentiality, any consultations on the issue, and the steps taken to protect the client’s privacy and safety. This documentation serves as a legal safeguard and can help demonstrate your ethical and responsible handling of the situation.
It’s never an easy choice to break client-therapist confidentiality. By following the advice above, you can navigate these situations more effectively and manage the stress involved.
How to Protect Yourself and Your Practice
It’s crucial to ensure that you and your practice are protected when dealing with confidentiality and the limitations of it. Deciding to break confidentiality is no small issue, and you want to make sure it doesn’t affect you or your practice long-term.
Steps to take to safeguard yourself and your practice:
- Familiarize Yourself with Local Laws – Stay updated on the laws and regulations regarding client confidentiality. Understanding the legal framework underpinning the rules of breaking confidentiality will help you ensure compliance and protect your practice.
- Maintain Secure Records – Implement robust security measures to protect client information. Use secure systems for record-keeping, storage, and transmission of electronic data. Develop policies and procedures for data protection and train your staff accordingly.
- Prioritize Client Well-Being – Your clients’ well-being should always be your top priority. When faced with a situation that may warrant breaking confidentiality, fully consider whether it’s the most appropriate decision or if there’s another way to handle the situation. Act promptly to ensure the safety and welfare of your client, but if you’re unsure, seek guidance from colleagues or legal counsel.
- Document Confidentiality Agreements and Informed Consent – Have clear and comprehensive written documents that outline the scope of confidentiality, exceptions, and the rights and responsibilities of you and your clients. Ensure that clients read and understand these documents before signing them. Reviewing them together helps establish shared expectations and clarifies any questions or concerns. Having their informed consent in writing protects you in case a client denies knowledge of your legal requirements.
- Seek Legal Counsel When Necessary – If you encounter complicated legal issues or have concerns about confidentiality, speak to a lawyer specializing in mental health or healthcare law. Lawyers can provide guidance specific to your circumstances, ensuring that your practice complies with the law, and that you make the right choice when breaking confidentiality.
- Obtain Professional Liability Insurance – Have a professional liability insurance policy. This insurance protects you and your practice from potential legal claims related to confidentiality breaches or other professional liabilities.
How to Best Communicate the Scope of Confidentiality with Your Patients
Now that you know the limitations of client-therapist confidentiality, you must ensure you communicate it to your clients to avoid misunderstandings.
Clear and transparent communication about confidentiality helps to establish trust between the therapist and the client. It assures your clients that their personal information will be cared for and kept confidential, fostering a safe and secure therapeutic environment.
Informing clients about the limits and exceptions to confidentiality allows them to provide informed consent for therapy. By understanding the scope of confidentiality, your clients can make informed decisions about what they feel comfortable sharing with you.
To communicate confidentiality with clients upfront:
- Prepare Documents – Have documents ready that outline the scope of confidentiality, such as a privacy policy, informed consent form, or confidentiality agreement. These documents should clearly state the limits and exceptions to confidentiality.
- Review Documents Together – During the client’s first visit, before you begin treatment, take the time to review the documents together.
- Explain the Documents – Clearly explain the purpose of the documents and the importance of maintaining confidentiality. Discuss the measures you take to protect their information.
- Discuss Situations Requiring You to Break Confidentiality – Take the opportunity to discuss the specific situations in which you may be required to break confidentiality, such as when there is a risk of harm to the client or others or when legally mandated, such as reporting suspected child abuse or complying with court orders.
- Obtain Informed Consent – After discussing the scope of confidentiality, ask the client to sign the appropriate forms, acknowledging that they understand and agree to the terms of your professional relationship.
Discussing the limits and exceptions to confidentiality helps clients understand circumstances where you may need to break confidentiality. This discussion can help reduce any misconceptions or concerns your clients may have. It can reassure them that confidentiality will be respected unless there is a serious reason to disclose information.
How to Explain Confidentiality to a Client
You know you need to have a confidentiality conversation with clients, but it feels uncomfortable. What do you say to ensure your client still feels they can trust and be open with you?
The following script can help you think about how to explain the limits of confidentiality in a careful, informative way:
This document is our privacy policy and informed consent form. It explains the purpose and importance of maintaining confidentiality in therapy. It outlines the steps I take to protect your information from accidental release or theft.
I also need to inform you that there are situations where I may be required to break confidentiality.
In situations where I believe that you are in immediate danger of harming yourself, I have the legal option to break confidentiality and contact the appropriate authorities, such as the police. However, I take our confidentiality seriously and will always explore alternative options before taking this step. Overall, your safety and well-being are my primary concern.
If I have a good reason to believe that you pose a threat to harm another person, it is my ethical and legal duty to attempt to inform that person and warn them about your intentions. I must also contact the police and request their intervention to protect the potential victim.
If I have a good reason to believe that you are abusing, neglecting, or endangering an elderly adult, I am obligated to inform Adult Protective Services immediately. Additionally, if there are suspicions or disclosures of child abuse or neglect, I must report this to Child Protective Services.
If a third party, such as an insurance company, is involved in paying for a portion of your therapy, I am required to provide them with a diagnosis. Diagnoses are technical terms used to describe the symptoms of your specific mental health concerns, and this information may be necessary for billing and reimbursement purposes. I will provide only the information absolutely necessary for you to receive this coverage.
If you’re comfortable with our confidentiality policies and understand the exceptions, please sign the informed consent form, acknowledging your understanding and consent to begin treatment.
Remember, we can always revisit and discuss confidentiality if you have further questions or if any new situations arise during our work together. Do you have any questions at this time?
Honoring Confidentiality
As a therapist, you’re ethically and legally bound to maintain your clients’ privacy and confidentiality, except in specific situations. You can break confidentiality only in certain situations, such as when there is a risk of harm to the client or others, suspected child abuse or neglect, or when you are otherwise legally mandated to do so.
Communicating these situations is essential to receive informed consent from your clients. This consent protects you if you ever need to break confidentiality and ensures that clients are fully aware that you strive to keep their information as private as possible. This knowledge allows clients to participate fully in their therapy sessions without worrying that you may disclose their private information.
We know you do your best to earn your clients’ trust and serve their needs. If you’re looking to grow your counseling practice, All Counseling can help. By claiming your profile with All Counseling, you can leverage our directory to enhance your online presence and attract people seeking therapy, ultimately growing your practice and helping more clients in need.
