Exceptions to Confidentiality

Law and Ethics Nuts and Bolts

PERMITTED DISCLOSURES

Therapists are permitted but not required to disclose certain kinds of information without a client’s consent:

5150. When a client is a danger to self or others, or is “gravely disabled,” the process of involuntary hospitalization (5150) will necessitate disclosing information to the admitting hospital, and to law enforcement if their help is needed.

FBI. Involuntary hospitalizations can be disclosed to the FBI (eg to keep a client from being able to buy a gun).

VIOLENCE. Violence against a child under 16 years old can be disclosed to law enforcement, even if there is no mandated report of Suspected Child Abuse (eg if a young person is assaulted by peers).

CHILD ABUSE. “Mental suffering” can be reported to Children and Family Services even if there is no mandated report.

OTHER CLINIICIANS. Legally, therapists are allowed to communicate with other licensed health and mental health professionals in California, whenever they think it is clinically necessary. However, most licensed professionals will only release information with a written consent from the client, unless they believe the exchange of information is needed to prevent serious, urgent danger to the client or someone else. Best practice is almost always to seek consent.

URGENT DANGER. In urgent situations, it may be necessary to communicate with third parties such as family members to keep a client physically safe. Often it is possible to obtain verbal consent and get written consent later, eg if a suicidal client calls and is willing to be voluntarily hospitalized, you might ask permission to call the client’s friend or relative for help and confirmation that they got the client to the hospital. If you ever do disclose information without consent from the client, keep it minimal and relevant to the crisis, and be prepared for the clinical implications later, such as the impact on the client’s relationship with that family member, or the client’s feelings about your choice to break confidentiality.

COLLECTION AGENCIES. A therapist may disclose information to a collection agency to obtain fees owed by a previous client, but must 1) only reveal what is necessary to collect the money (eg dates of sessions, amount of fee, the fact that the service was psychotherapy), and 2) inform the client that the information was disclosed.

DOMESTIC VIOLENCE (disclosure NOT permitted). Therapists who are not medical practitioners (MDs, nurses, eg) treating clients over 18 and under 65 are neither permitted nor mandated to disclose domestic violence to law enforcement without a judge’s subpoena or a release of information from the client.

 

MANDATED DISCLOSURES

Therapists are required to make these disclosures and are generally protected from civil and criminal legal consequences when they do.

For child and elder abuse, if a therapist ascertains that a report has been filed by the client or another professional for the same incident, a report is not required. Document this in progress notes. File a report if there is any doubt.

Where a child abuse report is mandated, a therapist who is not yet licensed can suffer legal consequences for failing to file the report, even if a supervisor instructed the therapist not to file it.

CHILD ABUSE

Therapists must file a Suspected Child Abuse report with Children and Family Services or local law enforcement when there is reason to suspect:

• “Willful cruelty” or “unjustifiable physical pain or mental suffering.” But “mental suffering in and of itself is not required to be reported.”
• Endangering a child’s person or health.
  
• Physical abuse that results in an injury. Exceptions are injuries caused by police using “reasonable or necessary force,” or by other children in a “mutual affray.”
  
• Sexual abuse, in many cases even when the child allegedly consents. (See Child Sexual Abuse Reporting.)
  

A Suspected Child Abuse report must be made by phone as soon as possible after obtaining the information, and within 36 hours in writing.

All reports should be filed with Children and Family Services in the county where the therapist obtained the information. If the abuse incident took place outside that county (even in another country), the local CFS will then take responsibility for determining whether a report is legally required, and filing it, in the appropriate jurisdiction.

ELDER ABUSE

Therapists are required to file a Report of Suspected Dependent Adult/Elder Abuse with Adult Protective Services, when learning that a person may have been abused, who is over 65, or “has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights.” Reportable abuse includes:

• Physical abuse (including sexual abuse)
• Financial abuse
  
• Abandonment
  
• Isolation
  
• Abduction
  
• Neglect (including self-neglect)
  

A Suspected Dependent Adult/Elder Abuse Report must be made by telephone as soon as possible, and in writing within 2 working days.

When an abuse incident is physical and takes place in a Long-Term Care facility, there are shorter timelines, and additional reports and calls are required. The particular requirements depend on various contingencies such as injury, diagnosis, etc., and are available at the Department of Social Services website.

DANGER TO OTHERS

When a client has made a threat or the therapist assesses imminent danger to a third party, the therapist is required to:

• Warn the victim (Tarasoff case)
• Warn others near victim
  
• Warn police (notably, the therapist in the Tarasoff case had done this)
  

 
SUBPOENAS

If you receive a subpoena … First don’t panic. Read carefully and determine what is being subpoenaed. Are you being told to appear for a deposition, send copies of records, write a report . . .?

If you are at all unsure what to do, consult an attorney. If you have a CAMFT membership or a CPH malpractice policy, they provide some limited legal consultation by phone.

If the subpoena is not from a judge, you are neither mandated nor permitted to release the client’s information. This is when you “assert the privilege.” A brief statement is sufficient, such as: “The law forbids me to disclose any information about a psychotherapy patient, including confirming or denying whether a person has been a patient.”

If the subpoena is from a judge: You should still assert the privilege to start with, but the judge has the power to tell you that privilege does not apply in the particular case, and ultimately you will have to comply.

If you do have to release information: Be sure your client records and the things you say at a deposition, are factual and consistent. Attorneys may challenge your credibility with small inaccuracies in your records or even in your curriculum vitae.

Records and depositions: It is illegal to destroy or alter clinical records to avoid complying with a subpoena. Keep in mind that almost anything can potentially be subpoenaed, such as your process notes or even your personal diary. In a deposition, you may be required to give verbal information that you did not record in your progress notes.

Informing the client: Discuss the implications of any subpoena or court order with your client, and let them know what information you have released. Ahead of time, if a client is likely to be involved in a legal matter, inform them of the limits to confidentiality. If they are thinking about voluntarily introducing their therapy or mental health into a legal case, make sure they understand that if you release any records, you will most likely have to release ALL records, and that the information can be used against them as well as for them.

OTHER MANDATED DISCLOSURES

Patriot Act of 2001: Section 215 allows a Foreign Intelligence Surveillance Court to demand psychotherapy records without telling the therapist a reason. It is not new for courts to have this authority, but Section 215 makes it illegal for the therapist to inform the client. (This conflicts with a therapist’s ethical obligation to inform a patient any time records are released.) Changes to the law in 2015 had an impact on the scope of what kinds of records can be demanded, mainly limiting the FIS courts’ ability to collect bulk records from phone companies. Even on that point, the language is unclear, and it is not at all clear that the change would apply to psychotherapy records.

Criminal case against a therapist: A court may require you to provide a client’s records in a criminal or civil case against you, the therapist.