Confidentiality: Some Basics Revisited

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Avoiding Liability Bulletin – October 2015

I once again focus upon the importance of confidentiality and some of its basics. For those who care about their profession as a psychotherapist, marriage and family therapist, mental health or professional counselor (whatever the description), they too should focus upon confidentiality and its critical importance to patients, to society, and to their chosen profession. State law (including regulations and case law) addressing confidentiality governs practitioners who are not subject to HIPAA. HIPAA’s “Privacy Rule” (federal regulations) applies to those who are “covered entities,” even if the “entity” is a sole practitioner (state law may also apply). State legislatures pass laws that either protect or encroach upon the confidentiality rights of patients, as does the U.S. Department of Health and Human Services in the form of federal regulations.

Confidentiality is, in essence, a restriction upon the volunteering of information outside of the courtroom setting. The concept of privilege (and privileged communications) involves the right and duty to withhold testimony and records in a legal proceeding. Confidentiality is considered by many to be the cornerstone of psychotherapy. This reality was recognized in the famous Tarasoff vs. Regents, University of California decision of the California Supreme Court decades ago. In one of my favorite passages from the decision, the Court made abundantly clear that it understood the importance of confidentiality. To quote the Court:

“We realize that the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed. Certainly a therapist should not be encouraged routinely to reveal such threats; such disclosures could seriously disrupt the patient’s relationship with his therapist and with the persons threatened. To the contrary, the therapist’s obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger.”

What I have always admired about the Court’s opinion in Tarasoff, especially the quoted passage, is the respect and deference the court gives to confidentiality. The Court protects confidentiality even in the face of articulated threats of violence. It properly views confidentiality as the necessary ingredient to the therapist-patient relationship. It would be relatively easy to convince the uninformed or poorly informed public, and some lawmakers, that there should be increased exceptions to confidentiality by making arguments based upon a generalized or misplaced focus on crime prevention or crime detection. This can be a slippery and very dangerous slope. By “uninformed or poorly informed” I refer to a lack of knowledge about mental health treatment and the need to protect patient privacy and confidentiality, and the resultant benefits to the patient, to society, and to the profession. Therapists treat, and hopefully, heal. Patients must reveal the very personal details of their lives in order to get meaningful and effective help; and criminal activity or involvement (both minor and major) is often revealed. Others, however, are charged with the responsibility to prevent, detect, and prosecute crime.

Suppose that a police officer, deputy sheriff, detective, or welfare fraud investigator comes to your office asking questions about a particular suspect and asking whether you are treating such person. I have spoken to therapists whose first instincts were to be cooperative with governmental agents and to want to help. I quickly convince most therapists that they should have a different attitude – that is, an attitude of non-cooperation (pleasantly delivered – unlike the following). “None of your business officer – I do not reveal the identity of my patients to anyone and I am unwilling to acknowledge the fact that I may not be treating a particular person. I wish you well.” The above scenario addresses confidentiality as to the “fact of the therapist-patient relationship” rather than the content of the communications.

Signed authorizations from patients enable therapists to share confidential information with others, within the confines of the authorization (time period and content). Otherwise, confidentiality can only be broken when certain disclosures are required by law or when they are authorized or permitted by law. If simply permitted but not mandated, therapists must use their best judgment as to whether a disclosure could disrupt or harm the therapeutic relationship. Perhaps the most important and useful exception to confidentiality, where a signed authorization from the patient is not necessary, is where the information is released to another health care provider or health care facility for purposes of the diagnosis or treatment of the patient. This is the law in California, and I suspect in most other states. The U.S. Department of Health and Human Services recognized this basic principle when promulgating the Privacy Rule (implementing HIPAA). Usually, the past crimes (felonies and misdemeanors) of the patient will be treated as confidential, but state law will of course determine the exceptions to this general principle. Most states have mandatory reporting laws for suspected child abuse or neglect, elder abuse, and dependent adult abuse.

The duty of confidentiality typically survives the death of the patient, so care must be taken after the death of a patient, which may occur suddenly or unexpectedly. In cases of suspected wrongdoing against or suicide of the patient, the county coroner or medical examiner will typically have access to mental health records (to determine the cause of death, for example) under state law. A family member or surviving spouse may pressure the treating therapist to release information about the deceased. A fine line must often be walked between being supportive or understanding of the aggrieved survivors and maintaining confidentiality. Is there a signed authorization from the personal representative or beneficiary of the deceased (or someone else who is authorized under state law) to allow release of the information to a third party? Does the requesting person have a right to inspect the records? The determination as to who is entitled to authorize the release of information or to have access to the information may take some time, and it is important for therapists to maintain confidentiality until they are clear about the authority of the requesting person (being compliant with any time requirement).


Richard Leslie

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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