Confidentiality and legal privilege are related but distinct entities. Confidentiality is the guarantee that an individual's personal information will not be disclosed except under specific, mutually agreed upon circumstances. Legal privilege, also called privileged communication, refers to specific relationships and communications that are protected from disclosure in legal proceedings. Both confidentiality and legal privilege are governed by a myriad of federal and state laws and case law (judicial interpretations of legal statutes) and by the ethical standards and explicit policies of professional organizations of healthcare providers, including mental-health professionals.
Confidentiality and legal privilege are essential for encouraging people to obtain healthcare and mentalhealth services and for establishing and maintaining patient/client trust in providers. Confidentiality and legal privilege are of particular importance with regard to sensitive personal information, especially mental-health and substance-use/abuse. People with known mental-health and/or substance-use disorders are often discriminated against and/or denied equal justice. Insurance companies are often the most significant threat to confidentiality, because they may force customers to authorize healthcare providers, including psychotherapists, to provide any information requested by anyone in the company.
There are circumstances where confidential information must be shared in order ensure appropriate treatment or to protect the health or safety of the individual or other people. However, sensationalizing of violence sometimes has led legislators and law enforcement to demand easier access to confidential medical records or to expand mandatory reporting requirements. Such measures are unlikely to reduce violence, since studies have repeatedly shown that people with mental-health or substance-abuse disorders are no more violent than the general population. Furthermore, in the absence of specific threats, it is not possible for professionals to predict future behavior, and the most reliable predictors of future violence are no different for people with mental illness than for the general population. Measures that compromise confidentiality threaten the privacy and legal rights of people in recovery from mental disorders, as well as discouraging people from voluntarily seeking treatment.
The advocacy organization, Mental Health America, lists privacy rights that are most likely to be abridged, including the right:
Mental-health professionals may not disclose anything about clients without their permission, including their existence and admissions of past criminal activity. Psychotherapists are generally required to keep certain basic records as set out in the American Psychology Association's “Ethical Principles of Psychologists and Code of Conduct.” Federal and state laws govern the confidentiality of such records, although state laws vary widely. Clients must sign a “Release of Information” (ROI) for the disclosure of any information to another person, including a therapist or physician.
In some situations, confidentiality issues must be addressed at the outset.
Confidentiality does not prevent people, such as family members, from providing information to professionals about clients, as long as the person providing the information is not also bound by confidentiality. For example, parents may provide relevant information to adult children's psychotherapists, who can receive such information as long as they do not confirm that they are treating the clients or provide any information themselves.
The HIPAA Privacy Rule is the federal law that protects the privacy of consumers’ health information, including disclosure to and use by healthcare providers and health plans. It balances protections of confidentiality with allowing for certain disclosures and uses of oral and written health information for appropriate purposes. The Security Rule covers confidentiality of electronic health information. The Family Educational Rights and Privacy Act (FERPA) covers confidentiality of student health information held by schools.
In general, mental-health information is treated like other health information under the Privacy Rule.
Most states and U.S. territories have laws requiring that specified professionals report reasonable suspicions of: child mistreatment; physical abuse of dependent or elderly adults; self-inflicted injuries; injuries resulting from a firearm, assault, or abuse; and threats of violence to others. Laws also typically require reports of patients transferred to a hospital from another care facility who have a physical injury or condition that appears to be the result of abuse or neglect. Laws may specify when such communications are privileged. “Mandatory reporters” usually include:
In some states, mandatory reporters also include:
Legal privilege belongs to the patient or client. They hold the privilege of disclosing their clinical records and other information, determining what happens to that information, and preventing others from disclosing their confidential information. In psychological practice, client's legal right to the confidentiality of their clinical records is also called client privilege. Professionals must hold privilege for their clients, even after relationships are terminated. In general, couples and families hold legal privilege jointly. Legal privilege of deceased people transfers to their legal representatives. Legal privilege applies to professionals such as licensed clinical psychologists and psychiatrists, but its application to other professionals varies widely from state to state. As of 2015, at least 13 states had statutes addressing psychologist-client privileged communications that were modeled on attorney-client privilege. Legal privilege extends to group therapy or therapy conducted in the presence of another person, such as a family member, whose presence is necessary for the success of the therapy.
Because legal privilege is the property of clients, they are the only ones who can assert or waive privilege. Clients cannot usually choose to selectively waive their legal privilege. A client's disclosures in a private therapy session are privileged if the client intends them to be confidential. For example, clients who see therapists for personal benefit or a psychological, mental, or emotional problem or who have a long-term relationship with a therapist are assumed to have intended the sessions to be confidential. However, if a psychologist is consulted about a legal problem such as a custody dispute, for evaluation of potential adoptive parents, or because a judge has ordered a client to undergo therapy, at least some details are expected to be disclosed in legal proceedings, and there is no legal privilege. The professional's files and notes are privileged if they are based on privileged sessions. Test results are privileged if they were conducted for mental-health purposes, but not if they were conducted in connection with a legal proceeding. Legal privilege is lost if clients reveal their test results or other privileged information to anyone other than spouses.
Legal privilege varies by state, but in general, if a therapy session is directly pertinent to a court case, it is probably not privileged. If clients and their lawyers are asserting privilege, the judge decides whether the therapist must disclose information. Legal privilege issues generally arise when a:
Legal privilege does not apply to:
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Duncan, Rony E., Annette C. Hall, and Ann Knowles. “Ethical Dilemmas of Confidentiality with Adolescent Clients: Case Studies from Psychologists.” Ethics & Behavior 25, no. 3 (2015): 197.
Groshong, Laura, and David Phillips. “The Impact of Electronic Communication on Confidentiality in Clinical Social Work Practice.” Clinical Social Work Journal 43, no. 2 (June 2015): 142–50.
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“Position Statement 21: Rights of Persons with Mental Health and Substance Use Conditions.” Mental Health America. December 8, 2012. http://www.mentalhealthamerica.net/positions/rights (accessed June 28, 2015).
Richmond, Raymond Lloyd. “Confidentiality.” A Guide to Psychology and Its Practice. 2015. http://www.guidetopsychology.com/confid.htm (accessed June 29, 2015).
American Psychological Association, 750 1st St. NE, Washington, DC, 20002-4242, (202) 336-5500, (800) 374-2721, http://www.apa.org .
Center for Ethical Practice, 934 E. Jefferson St., Charlottesville, VA, 22902, (434) 971-1841, Ext. 1, EHF@ CenterForEthicalPractice.org, http://www.centerforethicalpractice.org .
Child Welfare Information Gateway, Children's Bureau/ ACYF, 1250 Maryland Ave. SW, 8th Fl., Washington, DC, 20024, (800) 394-3366, firstname.lastname@example.org, https://www.childwelfare.gov .
Mental Health America, 2000 N. Beauregard St., 6th Fl., Alexandria, VA, 22311, (703) 684-7722, (800) 969-6642, Fax: (703) 684-5968, http://www.mentalhealthamerica.net .
Office for Civil Rights, U.S. Department of Health and Human Services, 200 Independence Ave. SW, Rm. 509F, HHH Building, Washington, DC, 20201, (800) 368-1019, OCRPrivacy@hhs.gov, http://www.hhs.gov/ocr/office .