Confidentiality is one of the most sacred areas of trust in psychotherapy, and it is guarded with tenacity by both the therapist and the law. But there are exceptions, and anyone entering psychotherapy should be advised regarding those limitations before revealing potentially personally damaging information. But how many patients are told explicitly what can be held in complete confidence and what may not have that protection?
The therapist is free to violate that implicit understanding of confidentiality under certain conditions. Occasionally, a lawsuit will be brought regarding a violation of confidentiality and an organization may file an amicus brief to offer reasons why it has not been violated and information was appropriately released.
The American Psychological Association has listed a number of these amicus briefs on their website. Additional examples of confidentiality issues may be found here. A good overview of therapy and how it works has been provided by the APA.
Besides confidentiality, there is something called privilege and that is information that is left to the sole discretion of the patient whether or not to permit a therapist to release it. The patient controls privilege.
Exceptions to privilege include child abuse cases, mental health at issue cases, disputes between co-patients, disputes between patient and therapist, crime or fraud, and duty to warn. The latter refers to the 1976 case of Tarasoff v. Regents of the University of California, in which a patient informed his therapist that he was having violent thoughts about a young woman he had been dating.
Prior to this killing, there doesn’t seem to have been a legal duty to warn but the “future crimes” standard releasing a therapist would seem to have been the standard of practice. The therapist at UC thought he took appropriate steps, but never warned the identified victim, and she was murdered. The murderer was found guilty, spent a short time in prison, and was then deported to his homeland.
In the above-mentioned instances, the therapist is not only free to release privileged information, but required by law to do so. In the Tarasoff case, curiously, the therapist’s supervisor ordered him to destroy all his therapy notes. The laws vary by state and there is a chart providing each state’s requirements regarding duty to warn.
An exception to the duty to warn (the third-party informant) came up in a case in California where a young man, who had broken off with a young woman who began to date another man, indicated to his father that he wanted a gun and he wanted to kill the other young man.
The father went to the patient’s therapist and informed him of this. The therapist told him to take his son to the hospital, where he was voluntarily admitted overnight and released. The next day he killed the young man and himself.
A court in Ewing v. Goldstein and Ewing VA Northridge Hospital Medical Center found the therapist was liable for the death of the young man. The California Court of Appeals indicated that the young man’s father had told the therapist of his son’s threats, and there was a duty to protect, which the therapist failed to follow through on, which resulted in the death of both the young man and the patient. The “failure” hinged on the therapist’s failure to tell the hospital of the impending danger the young man posed if permitted to be released after one day.
The court indicated that the therapist should have been aware of the patient’s state of mind and the dangerousness which he presented and revealed this to prevent his hospital release; he did not. This, then, indicates that even if a third party tells a therapist about the patient’s potential danger to someone or the community, there is a requirement to report it.
What about prior criminal activity or prior crimes committed by a patient? Does a therapist have to report them? The answer to these questions remains vague, and it appears there is no current law requiring therapists to report. Therefore, Tony Soprano was in the clear when he told Dr. Melfi about his criminal actions.
I was in a group session in my doctoral studies where one student revealed that a patient told him he murdered someone five years previously. The student asked what he should do. Neither the professor nor the group had an answer, and the professor told him to seek guidance from his professional association. After he did contact the association, guess what happened? They told him to talk to his supervisor. And so it went.
A good overview of the situation may be read here. There are still grey areas that legal scholars and laws must address. In the meantime, anyone entering therapy should consider current legal protections for themselves as well as problematic areas.
Some mental health professionals have questioned this believing a discussion of legal releases of information will prevent either full disclosure in therapy or lead to an individual not attending therapy, even when they need help.
