Confidentiality is a cornerstone of therapeutic treatment. It gives clients seeking services the knowledge and comfort that they can be completely honest with their clinician, without fear that the therapist will share what they said with outsiders.
That said, there are some circumstances that might call for you to break that confidentiality. What are those circumstances? And how can you inform clients about those circumstances at the beginning of therapy without breaking their sense of privacy in the process?
When Does a Therapist Have to Break Confidentiality?
As we use it here, “breaking confidentiality” means sharing specific, identifiable information about a client’s case without the client’s consent to do so. The times when a therapist has to break confidentiality are generally set forth in state laws, which means they can be inconsistent from one state to another. So it’s important to check your particular state’s laws to see whether a certain requirement applies to you, and if so, what the specifics are. Depending on the state, times when a therapist has to break confidentiality may include:
- When the client poses an imminent danger to themselves or others, and breaking confidentiality is necessary to resolve the danger.
- When the therapist suspects child, elder, or dependent adult abuse.
- When the client has directed the therapist to share information about their case.
- When the therapist receives a qualifying court order.
In addition to those scenarios defined at the state level, therapists also have to break confidentiality if their client is the subject of a national security investigation. In this instance, not only is the therapist required by federal law to break confidentiality, they can’t inform the client that they have done so.
“Breaking confidentiality” means sharing specific, identifiable information about a client’s case without the client’s consent to do so.
There are other situations defined in state and federal law where a therapist can break confidentiality, but the therapist is not required to do so. California, for example, has more than 20 such situations defined in state law. Should a therapist break confidentiality then?
Ethical Standards Around Confidentiality
Professional ethics codes do not determine the situations where a therapist must break confidentiality, as those are set in law. However, ethics codes provide useful guidance on decision-making in those situations where state and federal law allow, but do not require, the therapist to break confidentiality.
In general, the default position of therapists as directed by our ethics codes is to maintain confidentiality even when we’re technically allowed to share information. This goes back to the notion that confidentiality is a cornerstone of effective treatment—breaking confidentiality is not something to be taken lightly.
However, ethics codes also acknowledge that there may be times when both (1) the law allows breaking confidentiality, and (2) doing so can be in the client’s best interests. In their code of ethics, the American Psychological Association (APA) has four general scenarios that might call for you to break confidentiality without your client’s consent.
- You need to provide necessary professional services.
- You need to get appropriate consultations.
- You need to obtain payment for services.
- A client presents a danger to themselves or others.
Often, the decision whether or not to break confidentiality won’t be a black and white one. All these scenarios have degrees, and will likely require you to make a call on a case-by-case basis. Your professional judgement will be key here.
For instance, if you work with depression and suicidal ideation in your practice, mention of suicide in a session might not always be an indication that your client is in direct, immediate danger. Your knowledge of your client and their treatment progress will help you decide whether you need to break confidentiality to keep your client safe.
In other situations, like billing or consulting with another clinician, you can use the guidelines offered in the HIPAA Minimum Necessary Requirement to decide how much confidential or personal information about your client you actually need to disclose to meet your needs.
Check Ethics Codes and Local Laws
If you’re not sure if a situation merits breaking confidentiality, you should check state law in your area. If you’re in a situation where breaking confidentiality is allowed but not required by law (also sometimes called a “permissive,” rather than “mandatory,” disclosure standard) you should check your professional organization’s code of ethics for additional guidance.
The National Conference of State Legislatures provides a detailed guide which allows clinicians to find information on a therapist’s responsibility to break confidentiality when a client appears likely to become violent. In 16 states and Washington, DC, the law provides a permissive, but not mandatory, disclosure standard for such situations. Three states—Arizona, Delaware, and Illinois—have different regulations for different professions. Some states don’t even have any duty to warn/protect laws. As of 2018, these included Maine, Nevada, North Carolina, and North Dakota.
How to Talk About Confidentiality in Your Practice
Most people seeking therapy might have a vague idea of what client-therapist confidentiality entails, but they may not understand specifics, or know that there are circumstances where you can share their information. So it’s important to be upfront with your clients about your privacy policies, and explain when and why you might have to breach confidentiality,
If you’re a covered entity under HIPAA, your Notice of Privacy Practices (NPP) should explain to clients those situations in which their permission isn’t necessary for you to share information about their case. However, not all clients read and retain information from your NPP, so it’s not always safe to presume that clients understand the limits of confidentiality simply because they’ve received your NPP. It’s often worth an in-person conversation as well.
An easy way to initiate this conversation is to send all your privacy policies (including confidentiality disclosures) in your intake paperwork for new clients. Then when you process and review that paperwork in your first session, give your clients a chance to ask any questions and address any concerns they might have.
What To Do When You Do Have to Break Confidentiality
In situations where you’ve determined that you do have to break confidentiality—like if your client or someone else is in danger—there are a few things to keep in mind.
First, only share information with the right people for the situation. Even if you are legally mandated to report suspected child abuse to law enforcement or a local child protective service agency, that doesn’t allow you to share information about the suspected abuse with anyone else.
Second, only share the minimum amount of information necessary to achieve the purpose of the disclosure. That’s the aim of the “minimum necessary” standard mentioned above. And third, after you have broken confidentiality, if the law allows, you should typically inform clients that you have done so. Remind them of the limits of confidentiality and do any repair work necessary for the therapeutic relationship.
There are times when informing clients of your disclosure isn’t appropriate or beneficial, of course, and if you have questions about this you can consult with a supervisor, colleague, or professional association. But even a legally mandated-disclosure doesn’t have to mean that a therapy relationship ends, or that a client loses confidence in their privacy going forward. The better that clients understand confidentiality and its limitations when they start therapy, the more comfortable they can be in future sessions with you.
Disclaimer: This piece is for educational purposes only, and is not intentioned to be and should not be considered legal advice. For specific concerns regarding confidentiality, please consult with an attorney or your professional liability insurer.