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Privilege and privacy are hot button issues for professionals these days. Read more about privilege for psychiatrists.
A Mental Health Professional’s Guide to the Legal Obligation to Retain Client Confidences
Because of the length of this document, we present it in PDF format. Click here to download the entire 27-page, printable document.
The document introduction appears below.
A Mental Health Professional (MHP) is faced with the extraordinary and sometimes conflicting obligations of maintaining a client’s confidences and protecting a client’s emotional and mental health. (Throughout this article the phrase client will be used to identify the subject of both therapeutic and medical relationships.) This ambivalence is complicated when family relations are involved. And while a client is typically entrusted with the task of facilitating his own therapeutic healing and development, MHPs are occasionally required to take affirmative steps to protect a client from himself, circumstances, or others.
Weighing options and alternatives when choosing to favor preservation of a client’s well being over the preservation of a client’s confidences is complicated by what can appear to be contradictory legal mandates. On the one hand, MHPs are ethically, professionally, and legally required to preserve the confidences with which they have been entrusted. On the other hand, MHPs may be ethically, professionally, and legally required to disclose confidences under certain circumstances. Understanding the relevant legal landscape will help MHPs when navigating this sometimes treacherous realm.
The first tool that should be applied when determining what should be disclosed and when is the treating professional’s own sense of ethical and professional duty. Legal doctrines- especially where public health is concerned- typically emerge from a desire to protect the public interest. Where the provisioning of mental health services is concerned, this inquiry recognizes the fundamental value of the sanctity of the client-counselor relationship. As a noted legal publicist has recognized, “[confidences protect] interest and relationships which, rightly or wrongly, are regarded as, of [considerable] social importance…” Charles McCormick, McCormick on Evidence, § 72 (3d. ed. 1984). In enacting laws requiring or protecting the confidences exchanged during the therapeutic process the legislature or judiciary have made a determination that, first the therapeutic process is of intrinsic social value, and second that this process is facilitated by mutual trust.
As any MHP can attest, the establishment and maintenance of trust through the creation of an environment that engenders mutual positive regard and respect is essential to the counseling relationship. It is in this setting that a client may identify and reconcile feelings that derive from highly personal experiences and anxieties. Like penitent parishioners, clients often disgorge long held secrets. Knowing that a counselor will hold these revelations in confidence empowers most clients toward the candor and authenticity often required for therapeutic growth. The need for confidence within the treatment setting was aptly described by a New York appellate court when it stated:
“[Within the therapeutic setting,] [t]he patient is called upon to discuss in a candid and frank manner personal material of the most intimate and disturbing nature. ... He is expected to bring up all manner of socially unacceptable instincts and urges, immature wishes, perverse sexual thoughts--in short, the unspeakable, the unthinkable, the repressed. To speak of such things to another human requires an atmosphere of unusual trust, confidence and tolerance. ... Patients will be helped only if they form a trusting relationship with the psychiatrist.” MacDonald v. Clinger, 84 App Div 2d 482, 446 NYS2d 801, 804 (1982).
However, a client’s therapeutic development should not be permitted to dominate over all other considerations. Circumstances may require therapists to breach these confidences where the client presents a threat to themselves or another. Likewise confidences may be broken where circumstances threaten to exact a significant injury upon the unwitting client. There also may be circumstances where the disclosure of certain therapeutic interactions may be required to protect the sanctity of other valued relationships.
This article will examine the mandate and limits of retaining client confidences. This paper will first explore the various legally recognized family relations and the duty MHPs have to work within these familial bonds when providing therapeutic services. This paper will then explore the distinction between confidences and privilege, exploring the bounds and limits of each. Finally, this article will explore various regulatory schemes that touch on or affect MHPs’ ability or duty to preserve client confidences.
Because of the length of this document, we present it in PDF format. Click here to download the entire 27-page, printable document.
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