When Does a Therapist Have to Break Confidentiality?

Few things are more private than the therapist-client relationship, or any mental health counselor and their patient. But when do you, as the confidant, need to break your silence? Counselors breaking confidentiality comes down to the client’s personal safety and the safety of others. In this piece, we will discuss:

• Why patient confidentiality is important
• How to maintain confidentiality
• When to break client confidentiality
• Exceptions to confidentiality rules
• How to permissibly break confidentiality for adults and children
• Whether breaking confidentiality is grounds for malpractice

What Is Therapist-Client Confidentiality?

Client confidentiality is the legal and ethical requirement that mental health professionals protect their client’s privacy. Clearly, the act of spilling details from therapy sessions to friends is a confidentiality violation. But less obvious examples can violate the ethics code too, such as leaving voicemails on a public account, which could reveal that a person is in therapy — a violation unless the client provides written consent.

One of the most vital aspects of any successful mental health therapy relationship is creating a connection around trust with a client. For this connection to happen, clients need to feel their thoughts, secrets, and traumas are safe in your hands. Setting confidentiality ground rules from the start is crucial for building this trusting relationship (this includes signing confidentiality statements and asking the client’s permission for certain disclosures — such as confirming an appointment over voicemail).

Other reasons, too, explain why therapist confidentiality is important. For example:

• Clients who trust that confidentiality is part of the therapy space more willingly seek care.
• Clients are more likely to be honest when they trust that what they say is confidential (from insurers and outsiders).
• Clients will see that honest sharing positively impacts their mental health.

And then there’s HIPAA, which is a federal law that protects the client’s information, with an exception that requires the therapist to intervene when necessary to protect the safety of the client or others.

The Health Insurance Portability and Accountability Act (HIPAA) provides federal standards that allow clients to make informed choices about their physical, mental, and emotional health information. When clients sign a HIPAA agreement in the initial informed consent paperwork, they are agreeing to the following standards:

• They control their health information, including the use and release of their records.
• Office privacy policies exist to protect their health information.
• They can ask at any time whether their information will get shared.
• Only those who need to know can receive their records.
• They can request copies of their health records and make corrections as needed.

And (very importantly):

• HIPAA requires the therapist to contact the client’s family or law enforcement if the therapist truly believes the client displays a serious or imminent threat to themselves or others.

The wording of the therapist-client agreement must address these “imminent threat” standards specifically. If you violate the laws that are in place requiring reporting, you will likely face action from your licensing board. This negligence can warrant a malpractice lawsuit, a board action, loss of employment, and an investigation by the American Counseling Association (ACA) Code of Ethics organization. The Office of Civil Rights can also impose a steep fine if you violate HIPAA.

How to Maintain Therapist-Confidentiality

Therapist-client confidentiality guidelines address the following points for keeping your relationship confidential:

• Don’t acknowledge the client if you see them out in public.
• Don’t leave messages on voicemail or text that indicate you are the client’s therapist.
• Don’t tell anyone else about upcoming appointments.
• Don’t discuss therapy details with anyone unless you have the client’s written permission.
• Know when to report suicidal thoughts versus when the client does not have suicidal intent.
• Inform insured clients that the insurer requires relevant information about diagnoses and medications before the insurer will pay for treatment.
• Only send emails for scheduling or modifying appointments.
• Acquire additional training to become fully competent in providing telepsychology services.
• Be sure to inform the client of the security breach risks when using telepsychology (virtual) visits.

Learn what patients say they fear most about telehealth

Specific Rules for Therapist Confidentiality with Minors

• Know your state’s laws regarding confidentiality for clients who are children.
• Personal representatives of emancipated minors and foster children can have limited access to protected health information (PHI), but this access does not include your private session notes.
• Get parental consent to keep a child’s therapy confidential if trust issues arise between the child and you in regards to the issues they are seeking help for.
• Share only their child’s treatment goals and therapy progress if parents don’t surrender confidentiality.

Mandatory Reasons for Breaking Confidentiality Without the Client’s Consent

Therapists might have to break protocol to protect others from harm. For example, imagine that a furious client states, "I bought a gun because my co-worker needs to know I’m tired of them." The therapist becomes ethically obligated to protect the co-worker from harm. Each state or licensing board has a duty to warn law to ensure public safety by preventing injury and death. As a therapist, you must warn third parties or the police when the client threatens to harm a third party, you, or themselves.

Mental health therapists must follow their state’s duty to warn law, the APA Ethics Code, and the ethical requirements of their licensing board when faced with the need to implement their duty to warn. And the client must understand when signing the intake agreements that there are certain instances when you are mandated to break confidentiality. Below is a list of details that indicate that you are required to take action:

• You suspect the client is abusing a child, an elder, or a dependent adult.
• Your client admits they are suicidal and states they have devised a plan to commit suicide.
• The client reports homicidal intent and shares ongoing intent to kill or inflict serious bodily injury.
• You receive a subpoena to testify about the client or to submit the client’s progress notes.

The APA Ethics Code, Explained

The American Psychological Association’s Ethics Code is typically where a therapist starts when deciding whether they should disclose information. While the following refers specifically refers to psychologists, it applies to any mental health professional in a psychological practice. The code states:

a) Psychologists may disclose confidential information with the appropriate consent of the organizational client, the individual client/patient or another legally authorized person on behalf of the client/patient unless prohibited by law.

(b) 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.

Section (B) causes the therapist to carefully evaluate a potential confidentiality breach with ethical responsibility. Let’s break it down:

• Provide needed professional services: Suppose you cannot provide therapy because of your physical or emotional incapacitation or professional incompetence. In that case, you do not possess the necessary skills, attitudes, values, or judgment to provide beneficial therapy to clients. In these instances, you must take reasonable steps to protect your clients from further harm by referring them to other therapists.

• Obtain appropriate professional consultations: When your client’s mental health condition is beyond your scope of practice, you must refer or share treatment with another provider.

  When transferring the client’s mental health records to another practitioner, you must ensure the following:

  • The client must agree on the professional you refer them to for mental health treatment.
  • Your office staff must use technologically secure processes to transfer client records.
  • You must arrange to continue services to the client until they have established with the new practitioner.
  • You must obtain a written medical information release before you release the client’s objective data, pertinent history, and therapy progress notes.

• Protecting all from harm: Not only must you protect others from harm as outlined above, but you will want to protect yourself from potential harm that the client could inflict.
• Obtain payment for services from a client/patient: You must have the client’s written consent authorizing the release of their diagnoses and billing codes to third-party payers to bill insurance and obtain payment.

Final Thoughts

Treating clients for mental health issues is challenging and requires therapists to be precise in their decision-making skills. To grow and protect your career, you must follow established practice standards while intentionally striving to gain new knowledge from every client you encounter.

Today’s culture causes therapist-client confidentiality to evolve, making it necessary for all mental health providers to stay up-to-date on legal and ethical requirements. Continuing education and ongoing accumulation of clinical experience will protect you, your client, and your practice from mistakes that can lead to disciplinary actions. There are no guarantees that you will be free from disputes during your career. Knowing as much as possible about therapist-client confidentiality will foster trust with your clients and protect you from legal or licensing woes.

Image courtesy of istock.com/TommL

Last updated on May 23, 2024.
Originally published on Sep 15, 2022.

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• Mental Health
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