If I told you about me, would you… Psychotherapy and Confidentiality

Franco E. Santos, MA, Ed.D

At the very heart of a Marriage and Family Therapist or psychotherapist-client relationship is trust. After all, the client is expected to discuss with the psychotherapist his innermost thoughts and feelings regarding himself and his views of others. Without this sense of trust that the psychotherapist will keep the client’s confidence, psychotherapy will not nor can it progress.

Holding the client’s confidentiality is a responsibility that Marriage and Family Therapists and psychotherapists take very seriously. And, there are regulations and laws that safeguard the client’s right to privacy.

HIPAA, Psychotherapy and You

The practice of psychotherapy and patient’s confidentiality is covered under the HIPAA regulation. In 1996, the United States Department of Health and Human services issued a guideline delineating the use and disclosure of individuals’ health information. This guideline, called the “Health Insurance Portability and Accountability Act of 1996” or “HIPAA,” was designed to safeguard patients/clients’ privacy — the “protected health information” (PHI). Among the protected health information are:{pullquote}Holding the client’s confidentiality is a responsibility that Marriage and Family Therapists and psychotherapists take very seriously. And, there are regulations and laws that safeguard the client’s right to privacy.{/pullquote}

information about the client/patient’s physical or mental health including past, present or future diagnosis and/or prognosis;
services rendered or being provided to the client/patient; and
payment information.

California Law Addressing the Client’s Right to Confidentiality

In addition to the HIPAA Regulation, California ensures the client’s right to confidentiality under the California Business and Professions Code § 4982. It states:

“The board may deny a license or registration or may suspend or revoke the license or registration of a licensee or registrant if he or she has been guilty of…

(m) Failure to maintain confidentiality, except as otherwise required or permitted by law, of all information that has been received from a client in confidence during the course of treatment and all information about the client that is obtained from tests or other means.”

B&P section 4982 is further strengthened by Evidence Code Div. 8, Art. 4, Ch. 7, “Psychotherapist-Patient Privilege” under section 1014 wherein it states:

“Subject to Section 912 and except as otherwise provided in this article, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by:
(a) The holder of the privilege.
(b) A person who is authorized to claim the privilege by the holder of the privilege.”

Limitations to Right to Privacy

While the client has broad rights to confidentiality, there are limitations. When there is concern for the public’s safety as well as the safety of the client, the therapist has the duty to break a client’s confidentiality and inform or report to authorities/concerned agencies. The therapist must report if the therapist suspects:

there is child abuse;
there is elderly abuse;
the client intends to harm a person or group of people;
the client intends to harm the client’s self (suicide).

A point to emphasize here is that the therapist need only suspect child abuse, elderly abuse, harm to self or others. It is not the therapist’s responsibility to investigate. However, heavy emphasis is placed on the therapist’s need to report a suspicion. If there is suspicion and that suspicion is not reported to authorities (police, Department of Children and Family Services, etc.), the therapist may be subject to legal proceedings and penalties may apply including fines or loss of license to practice.

Further Consideration: Patriot Act of 2001

Following the terrorist attack of September 11, 2001, congress passed and then President Bush signed, the law known as USA Patriot Act. The Patriot Act was designed to deter future acts of terrorism. Section 215 of the Act, “Access to Records and Other Items under the Foreign Intelligence Surveillance Act,” provides for:

“The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.”

As written, Section 215 gives the FBI the right to access a therapist’s client files should the FBI suspect the client of terrorism. Furthermore, Section 215 bars the therapist from informing the client of the FBI’s demand to produce and the therapist’s compliance thereto. As can be imagined, this places great ethical dilemma for the therapist: caring for the client while, at the same time, spying on the client.

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If you are considering seeing a psychotherapist, be sure to discuss with your therapist your rights to privacy/confidentiality.

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