Confidentiality and Mental Health

Confidentiality refers to professional ethics, principles, and guidelines governing the disclosure of information obtained in the course of a clinical relationship. Breaching a client’s confidentiality is a serious issue that can result in problems for our clients, loss of trust in our profession, and litigation for us. There is no such thing as complete and absolute confidentiality.

The fact that the client is/has been in treatment is confidential. Communications by the client during treatment, observations by therapist, results of psychological and laboratory testing, diagnosis, and prognosis are all confidential. The dissemination of confidential information via faxes, e-mail, voicemail, computers, or other modes of information exchange can breach confidentiality.

At the beginning of treatment, clients must be informed in writing that there are exceptions to confidentiality.

Confidentiality can be waived only under the following circumstances:

1. When the client signs a Release of Information form
2. When the Court orders disclosure
3. In mandated reporting of suspicion of abuse/neglect of a child, elderly person, or vulnerable adult
4. To prevent harm to the client or other person
5. When information is required by insurance or case supervisors
6. When a mental health professional is defending him/herself in a lawsuit

1. Release of Information:

When a client/patient signs and dates a Release of Information, he/she gives you permission to disclose/release otherwise confidential information. A Release MUST contain:
WHO you are allowed to release information to
WHAT information you are allowed to share
A SPECIFIC TIME FRAME the Release will stay in effect
If you have treated a couple or a family, each person you treated must sign a Release of Information before you may divulge any information.

2. Court Ordered Disclosure and Subpoenas are NOT the same!

When you receive a subpoena, you MAY NOT respond unless:
It is a direct Court Order, signed by a Judge; or
Your client/patient has signed a Release allowing you to respond.

A subpoena may appear that it is from the Court, because it may contain wording such as, “By and for the 15th Judicial Circuit”, and “Failure to comply will result in contempt of Court”. This is not a Court Order unless signed by a Judge.

It’s best to ask your client to sign a Release of Information allowing you to respond. If that is not possible or the client refuses, the next step would be to contact the attorney who signed the subpoena and say, “I cannot say whether I do or do not have knowledge of the person named in your subpoena and cannot respond without a Court Order”. This protects the client’s confidentiality because you have not acknowledged that you have treated that person.

3. Mandated Reporting:
It is not a breach of confidentiality to report suspicion of abuse, neglect or exploitation of a child, vulnerable adult, or elderly person. You do not need to have a signed Release giving permission to disclose information. As a mental health professional, you are a mandated reporter!

4. Preventing Harm:
If a client appears to pose a threat to self or others, we may initiate the Baker Act to have the client assessed and evaluated for mental health treatment. The person may be held up to 72 hours and if it is deemed that more treatment is needed, the person may be held longer (Court involved). We must have seen the person within the past 48 hours in order to initiate a Baker Act. We do not need a signed Release and are able to provide information about the client for evaluation and treatment purposes.

5. When Information is Needed by Insurance or Case Supervisors:
On the first visit, clients should be informed about the necessity of releasing information to their insurance company or to case supervisors. Clients should sign a statement that explains about releasing information for insurance purposes or case supervisors PRIOR to beginning the first session so there is no misunderstanding and/or loss of trust between provider and client.

6. Defense in a Lawsuit:
If a mental health professional is being sued by the client, the person being sued has the right to defend him/her self and may use that client’s records if necessary to defend the case. A Release signed by the client is not necessary in order to provide these records.

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For more information and education on Ethics as they pertain to the practice of mental health you can sign up for our Ethics and Boundary Issues course.

Sign up for the Ethics and Boundary Issues Course