Confidentiality: Ethical
and Legal Issues
Chapter Six
Introduction
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You cannot make a blanket promise to your
clients that everything they talk about will
always remain confidential.
The more you consider the legal ramifications of
confidentiality, the clearer it becomes that most
matters are not neatly defined.
Professional judgment always plays a significant
role in resolving cases, from both an ethical and
a legal perspective.
Confidentiality
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As a general rule, psychotherapists are
prohibited from disclosing confidential
communications to any third party unless
mandated or permitted by law to do so.
Therapists are advised to err on the side of
being overly cautious in protecting the
confidentiality of their clients, unless faced with
a mandatory exception to confidentiality such as
reporting child abuse or elder abuse.
Confidentiality continued
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Counselors MUST obtain client consent
before engaging in advocacy on behalf of
an identifiable client.
Privileged Communication
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Privileged communication is a legal
concept that generally bars the disclosure
of confidential communications in a legal
proceeding.
All states have enacted into law some
form of psychotherapist-client privilege,
but the specifics of this privilege vary from
state to state.
Privileged Communication
continued
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Generally speaking, this legal concept
does NOT apply to group counseling,
couples counseling, marital and family
therapy, or child and adolescent therapy.
No clear judicial trend has emerged for
communications that are made in the
presence of third persons.

It is best for therapists to assume that such
communications are not privileged by law.
Privacy
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Privacy, as a matter of law, refers to the
constitutional right of an individual to decide the
time, place, manner, and extent of sharing
oneself with others.
According to Nagy (2005), you must not reveal
identifying information about clients, orally or in
writing, or even the fact that they consult you,
without their formal consent.
Confidentiality and Privacy in a
School Setting
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In some states, therapists in private practice are
required to demonstrate that attempts have
been made to contact the parents of children
who are younger than 16, whereas school
counselors are not required to do so.
Counselors working in schools are NOT required
by the Family Educational rights and Privacy Act
of 1994 (FERPA) to make their personal records
available or to disclose the substance of
confidential counseling sessions to parents.
Ethical & Legal Ramifications of Confidentiality
and Privileged Communication
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No genuine therapy can occur unless clients
trust that what they say is confidential.
When it is necessary to break confidentiality, it is
a good practice to inform the client of the
intention to take this action and also to invite
the client to participate in the process.
Mandatory reporting is designed to
encourage reporting of any suspected cases of
child, elder, or dependent-adult abuse.
Exceptions to Confidentiality
and Privileged Communication
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All of the major professional organizations have
taken the position that practitioners must reveal
certain information when there is clear and
imminent danger to an individual or to society.
It is the responsibility of the therapists to clarify
the ethical and legal restrictions on
confidentiality.
Unless clients understand the exceptions to
confidentiality, their consent to treatment is not
genuinely informed.
Privacy Issue with
Telecommunication Devices
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It is the counselor’s responsibility to make
sure fax and email transmissions arrive in
a secured environment in such a way as to
protect confidential information.
It should not be assumed that email is
private, because email messages can
easily be accessed by people other than
their intended recipients.
Privacy Issue with
Telecommunication Devices

The courts have ruled that email sent or
received on computers used by employees
is considered to be the property of the
company, and therefore, privacy and
confidentiality do not exist.
Implications of HIPAA for Mental
Health Providers

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The Health Insurance Portability and
Accountability Act of 1996 (HIPAA) was
passed by Congress to promote standardization
and efficiency in the health care industry and to
give patients more rights and control over their
health information.
These regulations protect patients by limiting
the ways that covered entities can use patients’
medical information and other individually
identifiable health information.
Implications of HIPAA for Mental
Health Providers cont.

Only mental health providers who fall
within the definition of covered entity
are subject to HIPPA requirements.
The Duty to Warn and to Protect

According to Mitchell (2000), those in the counseling
profession often have to weigh these conflicting
principles:
 The client’s right to privacy versus the therapist’s
responsibility to protect society.
 The client’s right of confidentiality versus the
therapist’s obligation to protect the community from
violent behavior.
 The client’s right to die versus the therapist’s
obligation to save lives.
The Duty to Protect Potential
Victims
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Even though practitioners are not generally
legally liable for their failure to render perfect
predictions of violent behavior of a client, they
can be charged if they are careless or
unprofessional.
Most states permit (if not require) therapists to
breach confidentiality to warn or protect victims.
Many states grant therapists protection from
being sued for breaching confidentiality if the
therapist can show that he or she acted in good
faith to protect third parties.
The Tarasoff Case
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The California Supreme Court ruled that a failure
to warn an intended victim was professionally
irresponsible.
The court held that simply notifying the police
was insufficient to protect the identifiable victim.
Negligence lies in the practitioner’s failure to
warn a third party of imminent danger, not in
failing to predict any violence that may be
committed.
The Tarasoff Case continued
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According to this decision, “the protective
privilege ends where the public peril begins.”
It is generally assumed that the duty to warn
and to protect is a national legal requirement.
According to Knapp & VandeCreek (1982),
“psychotherapists need only follow reasonable
standards in predicting violence.”

Therefore, therapists should not become intimidated
by every idle fantasy, for every impulsive threat is not
evidence of imminent danger.
The Tarasoff Case continued
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Not all states have embraced the Tarasoff
doctrine.

In 1999, the members of the Texas Supreme
court unanimously rejected the Tarasoff duty.
Other Court Cases
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The Bradley case illustrates the duty not to
negligently release a dangerous client by ruling
that a physician has a duty to take reasonable
care to prevent a potentially dangerous patient
from inflicting harm.
The Jablonski case underscores the duty to
commit a dangerous individual and that failure
to obtain a dangerous patient’s prior medical
history can constitute malpractice.
Other Court Cases continued
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The Jaffee case found that
communications between licensed
psychotherapists and their clients are
privileged and therefore protected from
forced disclosure in cases arising under
federal law.

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Jaffee applies only in federal cases.
According to DeBell & Jones (1997), Jaffee
does not appear to cover couples, family, and
group therapy.
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Implications of Duty to Warn
and to Protect for School
Counselors
Courts have uniformly held that school personnel
have a duty to protect students from foreseeable
harm.
School officials may be held accountable if a
student’s writing assignments contain evidence
of premeditated violence.
According to Hermann (2002), 63% of the
school counselors in her study believed they
were well prepared to determine whether a
student posed a danger to others.
Guidelines for Dealing with
Dangerous Clients
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Most counseling centers and community mental
health agencies now have guidelines regarding
the duty to warn and protect when the welfare
of others is at stake.
In most cases, therapists will not have advanced
warning that a client is dangerous.
Under NO circumstances should clinicians alter
client records.

If asked under oath whether any part of the records
have been altered and such entries later come to
light, the clinician is guilty of perjury, a criminal
offense.
The Duty to Protect Suicidal
Clients
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Therapists have a legal duty to protect suicidal
clients.
According to Remley & Herlihy (2005),
counselors can be accused of malpractice for
neglecting to take action to prevent harm when
a client is likely to commit suicide, yet they are
also liable if they overreact by taking actions
that violate a client’s privacy when there is not a
justifiable basis for doing so.
School Counselor Liability for
Student Suicide
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According to Hermann (2002), the most
prevalent legal issue encountered by
school counselors involves them making a
determination whether students are
suicidal.
Hermann (2002) found that 72% of the
school counselors surveyed believed they
were well prepared to determine whether
a client was suicidal.
School Counselor Liability for
Student Suicide continued
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According to King & colleagues (1999),
only 38% of the high school counselors
surveyed believed they could determine if
a student was at risk for committing
suicide.
Court Cases and School
Settings
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Courts have found a special relationship
between school personnel and students.
Even if the risk of the student actually
committing suicide is remote, the possibility may
be enough to establish a duty to contact the
parents and to inform them of the potential for
suicidal behavior.
The courts have addressed the need for training
school employees in suicide prevention.
Guidelines for Assessing
Suicidal Behavior
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In an assessment interview, focus should be
placed on evaluating depression, suicide
ideation, suicide intention, and suicide plans.
Suicide is the 8th leading cause of death in the
United States.
 It is the 13th leading cause for the elderly.
 It is the 3rd leading cause for young people
between the ages of 15 and 24.
Guidelines for Assessing
Suicidal Behavior continued
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Men are 3 times more likely than women to
commit suicide.
Single people are twice as likely as married
people to commit suicide.
Factors such as unemployment increase the risk
of suicide.
Once it is determined that a client is at risk, the
professional is legally required to break
confidentiality and take appropriate action.
Guidelines for Assessing
Suicidal Behavior continued
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According to Sommers-Flanagan & SommersFlanagan (1995), both consultation and
documentation offer safeguards against
malpractice liability.
The final decision about the degree of suicidal
risk is a subjective one that demands
professional judgment.
If a client demonstrates suicidal intent, and the
therapist does not exercise reasonable
precautions, there are grounds for liability.
The Case for Suicide
Prevention
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Suicidal individuals often hope that somebody
will listen to their cry for help.
There are differing expectations for action by
mental health professionals dealing with suicide
depending on the setting.
Remember that clients are ultimately responsible
for their own actions and that there is only so
much that you can reasonably do to prevent
self-destruction.
The Case Against Suicide
Prevention
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Szasz (1986) does not believe that mental
health professionals have an absolute
professional duty to try to prevent suicide.
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He believes that by attempting to prevent
suicide, professionals often ally themselves
with the police power of the state and resort
to coercion, therein identifying themselves as
foes of individual liberty and responsibility.
He believes that it is the client’s responsibility
to choose to live or to die.
Concluding Thoughts on Suicide
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According to Benitez (2004), there is no
Tarasoff duty to report when a client is
threatening suicide.
Protecting Children, the Elderly,
& Dependent Adults from Harm
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Privileged communication does not apply in
cases of child abuse and neglect, nor does it
apply in cases of elder and dependent adult
abuse.
In 2003, more than 550,000 elderly people were
reported abused or neglected in the U.S., but
the actual number may be 4 or 5 times higher
than this.
Mandatory reporting laws differ from state to
state.
Protecting Children, the Elderly,
& Dependent Adults from Harm

State laws may not always be effective in
inducing professionals to report suspected
child abuse as evidenced by the fact that
many do not adhere to mandatory
reporting laws.
Confidentiality & HIV/AIDSRelated Issues

People that have tested HIV-positive are
often very anxious, are struggling with the
stigma attached to AIDS, and they
typically have a great deal of anger.

Those at risk are often angry at health
professionals as well.
Ethical & Legal Considerations
in AIDS-Related Cases
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Courts have not applied the duty to warn to
cases involving HIV infection, and therapists’
legal responsibility in protecting sexual partners
of HIV-positive clients remains unclear.
The ACA (2005) ethics code states that
counselors “may be justified” in disclosing
information to a third party who is at risk, yet
counselors are not necessarily “obligated” to
take this course of action.
Ethical & Legal Considerations
in AIDS-Related Cases
continued
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California state law places the practitioner
who divulges this confidential information
at risk for fines, civil penalties,
incarceration, and loss of license.
Duty to Protect versus
Confidentiality
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The HIV-positive duty to warn decision is
one of the more controversial and
emotional issues practitioners might
encounter.
State laws differ regarding HIV and the
limits of confidentiality, and the law is
often different for medical professionals
than for licensed psychotherapists.
Duty to Protect versus
Confidentiality continued
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Two-thirds of the states have enacted
legislation specifying limits to
confidentiality regarding an individual's
HIV status.
Very few states (just Montana and Texas)
offer legal protection against liability for
practitioners who break client
confidentiality to warn third parties at risk.
Do Tarasoff Principles Apply in
AIDS-Related Psychotherapy?
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McGuire & colleagues (1995) suggest that
therapists should be extremely cautious
regarding breaching confidentiality and
should first consider less intrusive
measures.
Therapists should be aware that some
state laws prohibit warning identifiable
third parties of partners who are HIVpositive.
Do Tarasoff Principles Apply in
AIDS-Related Psychotherapy?
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Therapists have a duty to protect when the
following three conditions are met:
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There must be a “special client-therapist relationship.”
“Clear and imminent danger” must exist.
There must be an “identifiable victim.”
If an HIV-infected individual is engaging in highrisk behavior with an identifiable, unsuspecting
partner, then it appears that the three criteria
under the Tarasoff decision may be met.
Special Training on HIV-Related
Issues

According to Werth & Carney (1994),
several surveys show that most students
are not receiving HIV-related training in
their graduate programs and are
unprepared to handle ethical, legal, and
professional issues pertaining to HIV
situations.