Patient Confidentiality and Privilege Rights in Therapy

Overview of Confidentiality and Privilege in Psychotherapy

Under the usual conditions of therapy, patient information is protected by the legal concept of privilege. The privilege to determine how and when therapy records are disclosed belongs to the patient. A therapist has a professional obligation to maintain confidentiality. Essentially, this means that everything discussed in a therapy session must be kept in confidence, and that duty of confidence cannot be revoked by the therapist without the patient's approval.

The rights of a patient and the rights of a therapist are broadly protected, except under certain conditions. The conditions that fall outside the protection of privilege and confidentiality in psychotherapy are considered official exceptions. Under these exceptions, a psychotherapist is either allowed or required to break confidentiality. The exceptions discussed below reference the laws of the state of California, a state with notably restrictive consumer protection and human services laws.

Exceptions to Confidentiality Under California Law

Under California law, there are three exceptions to the confidentiality of psychotherapy:

(1) Where there is a reasonable suspicion of child abuse or elder adult physical abuse.

(2) Where there is a reasonable suspicion that the patient may present a danger of violence to others.

(3) Where there is a reasonable suspicion that the patient is likely to harm himself or herself unless protective measures are taken.

Mandated Reporting: Child Abuse and Elder Adult Abuse

Mandated Reporting of Child Abuse

The California state laws addressing reported incidents of child abuse or the threat of child abuse are: Child Abuse: CA Penal Code § 11164–11174.4: 288; 261–269, and Child Abuse: CA Welfare & Institutions Code § 18951 ff. The language of the law specifically obligates a psychotherapist to report as follows:

"In respect to minors, a psychotherapist is mandated to report accidental injury inflicted by others; sexual abuse; unjustifiable mental suffering (as in a young child witnessing domestic violence); neglect; cruelty; statutory rape (minor under 16 and other 21 or older, even if consensual); lewd and lascivious conduct (minor under 16 and other 10 years older, even if consensual); consensual sexual contact between minors (where one is 14 years of age and the other is under 14 years of age)."

Under this mandate, incidents or concerns about threats of child abuse must be reported whether disclosed by an offender, a potential offender, a victim, a potential victim, or others who would have knowledge of the incident or threat of child abuse.

Mandated Reporting of Abuse of Elderly Adults

The California state laws addressing reported incidents of physical abuse of elderly or dependent adults are: Elderly and Dependent Adults: CA Welfare and Institutions Code § 15630–15632; § 15610–15610.65; § 15633–15637. The law requires:

"In respect to elderly or dependent adults, a psychotherapist is mandated to report physical abuse, including sexual assault; misuse of physical or chemical restraint; neglect; fiduciary abuse; and isolation."

Threats of Violence to Others

A therapist has a duty to report threats of violence to others. Many patients explore feelings of retribution in therapy, and this may include destruction of property. The therapist must exercise professional judgment in such cases, while remaining alert to any threat that identifies specific property or specific individuals, as addressed by CA Civil Code § 43.92 (a). Specificity — the patient's identification of particular people — is a key indicator that a psychotherapist may be obligated to report the patient's disclosure.

According to CA Evidence Code § 1024:

"There is no privilege … if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another, and that the disclosure of the communications is necessary to prevent the threatened danger."

It is important to note that there is not a strict mandate under this provision (see Tarasoff v. Regents of the University of California); rather, the law protects the therapist from a charge of breach of confidentiality. Further, according to CA Civil Code § 43.92 (a):

"There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist … in failing to warn of and protect from a patient's threatened violent behavior or failing to predict and warn of and protect from a patient's violent behavior, except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims."

CA Civil Code § 43.92 (b) includes language specifying that, when issuing a warning about a danger or threat of danger, the psychotherapist should report the impending violence to a law enforcement agency and to the threatened victim or victims. A court-appointed psychotherapist practices under the same legal mandates as a psychotherapist in private practice.

Conclusion

The obvious caveat to this discussion is that the examples are all derived from California state statutes. Other states may have different requirements. In case law — for example, the Tarasoff decision in California — the rulings of regional courts can substantively influence the interpretation of statutory law. In California, case law now obligates a psychotherapist to report information received from family members under the same standards that apply to information disclosed directly by patients. A psychotherapist must be aware not only of the State Board obligations governing the practice of therapy, but must also have a clear understanding of all the permutations of the laws in the state in which he or she practices.

References

California Evidence Code. Retrieved from http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=evid&codebody=&hits=20

California Civil Code. Retrieved from

California Penal Code. Retrieved from http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=pen&codebody=&hits=20

California Welfare & Institutions Code. Retrieved from http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=wic&codebody=&hits=20

Richmond, R. L. A Guide to Psychotherapy and Practice. San Francisco, CA. Retrieved from http://www.guidetopsychology.com/confid.htm