Confidentiality is the legal and ethical duty of therapists not to reveal information about their clients to unauthorized individuals. Legally and ethically, therapists are bound by statute and by the profession’s code of professional conduct not to reveal information about their clients to unauthorized individuals. Legally and ethically, clients have the right to prevent their therapist from disclosing information shared by them in counseling without their consent.
In counseling, two types of confidentiality are commonly recognized: content confidentiality and contact confidentiality. Content confidentiality requires that the substance or content of the client’s discussion with a counselor not be revealed by the professional. Disclosures of confidential client information to individuals with no right to that information are called content breaches. Such breaches of confidentiality may result in civil liability to the therapist or licensure revocation. Contact confidentiality requires that the professional not reveal the fact that the client is being seen by the professional. Disclosures to an unauthorized party that the client is seeing the therapist are referred to as contact breaches. Although therapists often make strenuous efforts to avoid disclosures of the identities of their clients, the law generally does not address matters of contact confidentiality.
The ethics codes of both the American Psychological Association (APA) and the American Counseling Association (ACA) provide a set of standards and code of conduct to guide the professional activities of their members, including the provision of counseling and psychological services. In both codes, the duty of counselors and therapists to protect and uphold their clients’ right to privacy is fundamental, and both generally are interpreted as including the protection of contact confidentiality. Nevertheless, it is important that counselors and their clients understand the distinction between content and contact confidentiality, as most laws governing the confidentiality of counselor-client communications do not protect contact confidentiality.
Therapists’ obligations to protect their clients’ confidentiality derives from the client’s right to privacy, which itself derives from the more general, but central, ethical value of personal autonomy—a person’s right to “self-determination.” In this case, it is the right to determine with whom personal information may be shared. Confidentiality in this sense can be understood as the counselors’ duty or obligation to support clients’ right to privacy by not repeating to or sharing with others information shared privately with them by their clients. What clients consider to be private must stay private, and it is the duty of therapists to assure that this is the case with respect to disclosures made by clients in counseling. If a client’s private information is to be shared with another, it should be shared by the client— or at least with the consent or authorization of the client. In this regard, a client’s right to privacy and a client’s right to confidentiality in relation to communications shared in counseling are one and the same.
Because confidentiality and privacy are a client’s right, the client may waive that right if he or she chooses. In making such a waiver, it must be demonstrated that such waiver is undertaken knowingly and voluntarily. That is, counselors may ethically and legally reveal a client’s confidences with the informed consent of the client.
It is often suggested that the protection of another’s privacy through the maintenance of confidentially is a way to build trust within the counseling relationship— trust necessary for clients to share productively and personally with their counselors and therapists. In this regard, it is not uncommon to find it argued that an assurance of confidentiality is indispensable for effective therapy. In keeping with this view, counselors and the counseling profession generally assume that an assurance of confidentiality is essential for effective therapy and that most clients would not feel safe discussing personal and intimate aspects of their lives with a counselor without such assurance. Even the courts have embraced this assumption, with the U.S. Supreme Court writing in Jaffee v. Redmond (1996),
Effective psychotherapy depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories and fears . . . For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.
This may be the case for some clients; however, both experience and research demonstrate that many clients are quite willing to talk personally and intimately with their counselor or therapist without assurances of confidentiality. While some studies suggest that assurances of confidentiality are essential to productive counseling, overall the results of research on this topic are mixed, with other studies indicating that such assurances have little effect on encouraging disclosures, or that assurances of confidentiality matter only to some clients in some circumstances.
For this reason, the protection of client privacy and the maintenance of confidentiality cannot rest on their necessity to the effectiveness of therapy or as critical therapeutic tools or strategies. Rather, privacy protection and confidentially must be justified on ethical and legal grounds. Both the APA and the ACA include the therapist’s duty to protect the confidentiality of client disclosures made in counseling as a fundamental ethical principle and duty in their respective ethics codes. With regard to law, state and federal law also protect the (content) confidentiality of communications between clients and their therapists. Importantly, state and federal laws also address how such confidential communications are stored (e.g., the maintenance and management of case records) and how that information can be released—specifically, the restricted circumstances under which such information may or must be shared, and the mechanism by which that information is shared. Thus, under the law, clients’ rights to privacy and therapists’ obligations to protect that privacy through their maintenance of confidentiality are enforceable. However, those rights and obligations are not without limits. Exceptions to confidentiality will be discussed momentarily.
Legal Privilege
Privileged Communication
Statutes that accord protection to clients from therapists’ sharing with others information that was shared privately in therapy also may include provisions exempting counselors and therapists from the requirement to reveal privileged information about a client and client disclosures in court. These laws are called privileged communication laws.
Privileged communication refers to the statutory or judicial protection extended to certain “special relationships” whose existence is considered important to the community and to be dependent on assurance of the confidentiality of communications. More specifically, in the case of therapy, it is a right, granted by statute to the client, that confidences originating in the therapeutic relationship will be safeguarded (i.e., not be revealed) during certain court proceedings. In other words, when a client invokes privilege, the therapist is legally and ethically bound to not reveal in court information obtained during the professional relationship.
Privileged communication is understood to be rooted in early Elizabethan law, where certain individuals had the right or privilege to refuse to testify about embarrassing matters. In time, this individual privilege conferred to attorney-client relationships prohibited an attorney from testifying against his or her client. Under U.S. law, the privileged nature of communications shared by clients with their attorneys can be understood within the context of the Fifth Amendment to the Constitution—the right to avoid self-incrimination.
Over time, legislatures cautiously have passed laws extending privileged status to communications originating in other, special, socially important relationships. Such relationships include those between physicians and their patients, husbands and wives, priests and penitents or confessors. In order for legislatures to pass such laws they must be convinced that making an exception to the rule of evidence is vital to the well-being of society and that an individual citizen’s need to privacy outweighs the need for evidence in a court case.
In 1961, jurist John Wigmore proposed four criteria to be used as guides to decision making regarding the according of privileged communication: (1) the communications must originate in confidence that they will not be disclosed, (2) confidentiality must be essential to the full and satisfactory maintenance of the relationship, (3) the relationship must be one that is strongly supported and fostered by the community, and (4) the harm to the relationship as a result of disclosure of the communications must be greater than the benefit from the proper disposal of the litigation.
Extension of the privilege to communications originating in therapy relationships (i.e., those occurring between psychologists or counselors and their clients) is a relatively recent development. Although it is now almost universal that psychologist-client communications are treated as privileged, the extension of privileged status to the communications occurring within the counselor-client relationship remains limited.
Even where such privileged communication is recognized, it is important for counselors to be aware that there are exceptions to this privilege that may require otherwise protected or privileged information to be revealed. Common exceptions include requirements to testify regarding client threats to the health and safety of the client or others; a client’s intent to commit a crime; knowledge of child abuse, elder abuse, or disabled adult abuse committed by the client; and a client’s mental condition or state in an involuntary commitment proceeding or if the client has raised an issue of her or his mental state in a legal proceeding.
Qualified Privilege
When invoked and accepted by the court, the doctrine of qualified privilege provides protection against charges of defamation. Defamation is an act of communication that causes someone to be shamed, ridiculed, held in contempt, lowered in the estimation of the community, or to lose employment status or earnings or otherwise suffer a damaged reputation. More specifically, defamation is the making of false statements about a person that injure his or her reputation or that deter others from associating with him or her. Libel and slander are the legal subcategories of defamation. Libel is defamation in print, pictures, or any other visual symbols. Slander is defamation by oral communication.
Of relevance to issues of confidentiality and legal privilege, defamation involves instances in which a counselor or therapist shares with another information about a client that may be or is damaging to that client’s reputation. An example of this would be when therapists break confidentiality to share with the appropriate authorities (e.g., local child-protection services) their suspicion that a client is being (or has been) sexually abused or molested by an adult or, if the client is an adult, is molesting a child. Both are instances in which counselors may be required by law to break confidentiality to report their suspicions to protect a child. It is important to note that counselors are not required to be certain that abuse has taken place; rather, they are required to report their suspicions—leaving determination of facts of the matter to the appropriate authorities. Regardless of the truth or falsity of such a communication to the authorities, such a communication or revelation can be understood to be damaging to the reputation the suspected abuser, and it is understandable that such person might take legal action against the therapist for breach of confidentiality and for defamation and damage to the person’s reputation and standing in the community.
In legal proceedings, the general avenues of defense in defamation suits are (1) that the communication or revelation is true, and (2) that the person gave consent to the release of the information. Qualified privilege is a third avenue of defense. The notion of there being a privilege that qualifies some communications as exemptions from defamatory characterization rests on the notion of an overarching social duty to share or release information, even if that information may be false. There are four conditions that must be met under the doctrine of qualified privilege: (1) the information must be presented in good faith—not in malice, (2) there must be a legitimate social duty to release the information, (3) the disclosure must be limited in scope to what is necessary to discharge the duty, and (4) the disclosure must be made only to the appropriate parties with a right to know. Most states with mandatory abuse-reporting laws include a qualified privilege provision in their reporting statute, thereby protecting counselors from defamation suits so long as their report of suspected abuse was made out of sincere concern for the protection and welfare of the child, the information shared related only to the suspicions of abuse, and the information was shared only with the appropriate authorities.
Limits and Exceptions to Confidentiality and Privilege
As noted earlier, a client’s right to privacy and confidentiality, is not without limits. There are exceptions to rules of privacy and confidentiality; neither is absolute. Specific exceptions to privacy and confidentiality vary by jurisdiction, and counselors are well advised to become familiar with the exceptions that are relevant to their practice jurisdiction and professional practice setting.
In addition to previously noted client waivers of confidentiality with their informed consent, other circumstances may permit and require disclosures by counselors of otherwise confidential disclosures to supervisors and others involved in the treatment of the client. Disclosures to the parent or guardian of a minor client and disclosures to share in the interest of the operation of the system in special settings (e.g., the penal system) are additional instances when confidentiality is limited.
Even where privileged communication is recognized, counselors need to be aware of statutory exceptions to this privilege that may require them to reveal otherwise confidential and privileged information. Such exceptions may include requirements to testify regarding client threats to the health and safety of the client or others (including when a client has a fatal, communicable disease and the client’s behavior is putting others at risk), a client’s intent to commit a crime, reporting of suspected abuse or neglect of a child or other persons presumed to have limited ability to care for themselves (e.g., the elderly or a disabled adult), and a client’s mental condition or state in an involuntary commitment proceeding or if the client has raised an issue of her or his mental state in a legal proceeding.
Other exceptions include death of the client, sharing information with subordinate and fellow professionals in coordinating client care (e.g., within-agency or within-institution sharing of information), working under supervision, the use of clerical staff and other assistants who handle confidential information, and clinical and legal consultation with colleagues or experts. Additionally, privilege and confidentiality are waived when clients bring law suits claiming emotional damage, when clients raise issues of their mental health in legal proceedings (e.g., in custody suits), when counselors provide services to multiple clients (e.g., when a third party is present during the communication, such as in couples, family, or group counseling), and to permit counselors or therapists the ability to defend themselves against charges of negligence or malpractice charges raised by their clients.
References:
- American Counseling Association. (2005). ACA code of ethics. Alexandria, VA: Author.
- American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. Washington, DC: Author.
- Bersoff, D. N. (Ed.). (2003). Ethical conflicts in psychology (3rd ed.). Washington, DC: American Psychological Association.
- Jaffee v. Redmond, 518 U.S. 1 (1996).
- Welfel, E. R. (Ed.). (2006). Ethics in counseling and psychotherapy: Standards, research, and emerging issues (3rd ed.). Belmont, CA: Thomson Brooks/Cole.