Confidentiality in Psychotherapy: What Films Can Teach Psychotherapists About Confidentiality in Psychotherapy

What Films Can Teach Psychotherapists About Confidentiality in Psychotherapy

By: Ofer Zur, Ph.D. and Birgit Wolz, Ph.D.

Table Of Contents

Confidentiality in Psychotherapy
Codes of Ethics on Confidentiality
Addendum for California Therapists and CA Law on Confidentiality
Movie Vignettes and Analysis
Antwone Fisher
Basic Instinct
Bliss
Dressed to Kill
Girl Interrupted

Good Will Hunting
Grosse Pointe Blank
House of Games
K-Pax
Ordinary People
Prime
Prince of Tides
Stay
What about Bob?

Confidentiality in Psychotherapy

Confidentiality in psychotherapy, like privacy, is considered one of the cornerstones of the psychotherapy relationship. The basic assumption behind confidentiality is that it encourages and/or enables clients or patients to share or divulge highly personal, private and/or shameful information to their psychotherapists. Honest and/or extensive sharing of such personal information has been considered a prerequisite for positive therapeutic outcome. It is very important to note that absolute confidentiality does not exist. At best, therapists may promise relative confidentiality. Keeping confidentiality is a balancing act between the ever-present tension of keeping things in confidence and disclosing information when deemed necessary, unavoidable and/or mandatory.

Privacy, confidentiality and privilege are different but related concepts that are of great importance to every mental health professional and those we serve. Without an adequate understanding of these concepts we risk engaging in unethical, illegal and potentially harmful behavior. Privacy is a basic right granted to all our citizens; confidentiality is an ethical concept pertaining to the psychotherapy relationship; and privilege is a legal concept regarding who has the right to release confidential information.

While most consumers assume that everything they share with their psychotherapist is confidential, a number of limits to confidentiality exist to allow mandatory reporting requirements for suspected child abuse and neglect; vulnerable adult reporting requirements that may include suspected abuse, neglect, self-neglect and exploitation of the elderly and other individuals dependent on others for their care; and duty to warn and protect requirements regarding threats to harm others made in treatment. (For an update about the new Tarasoff ruling in CA and how it affects clinicians, go to: https://www.zurinstitute.com/tarasoff.html.)

Just how therapists address the limits of confidentiality through the informed consent process is of great importance and has significant implications for how the therapeutic process transpires. Informed consent is an ongoing process that should begin at the outset of the professional relationship. The client must be competent to consent, consent must be given voluntarily, and we must ensure that the client understands what s/he is agreeing to. When working with minors, families and groups, there are a number of special issues that must be addressed up front, which concern confidentiality expectations. While minors may not legally be able to consent to their own treatment, therapists still must explain relevant treatment information to them in a manner they can understand. With families and groups, clients need to understand that one person cannot waive privilege for another.

Understanding the relevant state laws is important when working with children and adolescents since their confidentiality rights may vary depending on age and other circumstances. In some jurisdictions minors over age 16 may consent to their own treatment and decide who may have access to treatment information. Additionally, ‘mature’ or ’emancipated’ minors (typically those who are married or in the military) have the same rights as adults to consent to treatment.

A thorough understanding of effective office practices is essential for preventing inadvertent breeches of confidentiality. Important steps include soundproofing, record storage and disposal practices, the use of technologies to include computers and fax machines, and the training of staff not to release confidential information without specific authorization.

Knowledge of privilege rights and related procedures is essential when working in the forensic setting and in any situation involving the courts. While we must comply with a court order from a judge, psychotherapists do not necessarily need to comply with a subpoena. Therapists also have the opportunity, through an attorney, to file a motion to quash a subpoena or to have a judge do an in-chambers review of records to see if they are relevant to the legal proceeding before ordering their release.

The use of technology brings with it a number of important confidentiality challenges and concerns that each mental health professional should be aware of and address prior to using these technologies. The use of password protection and encryption are useful for protecting computer records. If our computer is networked or connected to the Internet, the use of firewall and virus protection are important to help prevent unauthorized access to, and release of, confidential materials from our computers. Ensuring care when punching in fax numbers and the use of a cover sheet stating the confidentiality of the materials being sent are useful as well.

Working with insurance and managed care companies brings with it additional risks to clients’ confidentiality. Understanding how insurance carriers may share and release information sent to them has a great impact on how we document our services and just what we share with them. Therapists should share only the minimum amount of information needed to meet utilization review requirements knowing that once they share the information the ability to control who has access to it is out of our hands.

Court rulings, such as Nagle v. Hooks and Jaffe v. Redmond, have significant implications for each practicing mental health professional who endeavors to protect a client’s confidentiality. In divorce/custody situations in court, a court-appointed guardian may be appointed who becomes the child’s holder of privilege in the context of the legal situation. In Federal courts clients retain their privilege rights and one cannot be ordered to share information about or from their psychotherapy. Knowing this is vital for ensuring we do not violate the rights of those we are trying to help.

Consulting with experts can help you navigate the ethical and legal complexities of confidentiality and help you assure that you practice within the reasonable standard of care of your profession.

Codes of Ethics on Confidentiality

Following are quotes and summaries of the codes of ethics on confidentiality in psychotherapy. These summaries detail APA, CAMFT, NASW and AAMFT codes of ethics. They are not complete and intend to give a general sense of how the codes view the issue of confidentiality. For more detailed and more inclusive summaries, including direct links to the codes themselves, please go to: https://www.zurinstitute.com/ethicsofconfidentiality.html.

American Psychological Association’s (APA) Ethical Principles of Psychologists and Code of Conduct

3.07 Third-Party Requests for Services: When psychologists agree to provide services to a person or entity at the request of a third party, psychologists attempt to clarify at the outset of the service the nature of the relationship with all individuals or organizations involved. This clarification includes the role of the psychologist (e.g., therapist, consultant, diagnostician, or expert witness), an identification of who is the client, the probable uses of the services provided or the information obtained, and the fact that there may be limits to confidentiality.
3.10.a. When psychologists conduct research or provide assessment, therapy, counseling, or consulting services in person or via electronic transmission or other forms of communication, they obtain the informed consent of the individual or individuals using language that is reasonably understandable to that person or persons except when conducting such activities without consent is mandated by law or governmental regulation or as otherwise provided in this Ethics Code.
(b) For persons who are legally incapable of giving informed consent, psychologists nevertheless (1) provide an appropriate explanation, (2) seek the individual’s assent, (3) consider such persons’ preferences and best interests, and (4) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law. When consent by a legally authorized person is not permitted or required by law, psychologists take reasonable steps to protect the individual’s rights and welfare.
(c) When psychological services are court ordered or otherwise mandated, psychologists inform the individual of the nature of the anticipated services, including whether the services are court ordered or mandated and any limits of confidentiality, before proceeding.(d) Psychologists appropriately document written or oral consent, permission, and assent.
4.01 Psychologists have a primary obligation and take reasonable precautions to protect confidential information obtained through or stored in any medium, recognizing that the extent and limits of confidentiality may be regulated by law or established by institutional rules or professional or scientific relationship.
4.02 (a) Psychologists discuss with persons (including, to the extent feasible, persons who are legally incapable of giving informed consent and their legal representatives) and organizations with whom they establish a scientific or professional relationship (1) the relevant limits of confidentiality and (2) the foreseeable uses of the information generated through their psychological activities.
(b) Unless it is not feasible or is contraindicated, the discussion of confidentiality occurs at the outset of the relationship and thereafter as new circumstances may warrant.
(c) Psychologists who offer services, products, or information via electronic transmission inform clients/patients of the risks to privacy and limits of confidentiality.
4.03 Before recording the voices or images of individuals to whom they provide services, psychologists obtain permission from all such persons or their legal representatives.
4.04 (a) Psychologists include in written and oral reports and consultations, only information germane to the purpose for which the communication is made.
(b) Psychologists discuss confidential information obtained in their work only for appropriate scientific or professional purposes and only with persons clearly concerned with such matters.
4.05 (a) Psychologists may disclose confidential information with the appropriate consent of the organizational client, the individual client/patient, or another legally authorized person on behalf of the client/patient unless prohibited by law.
(b) Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to (1) provide needed professional services; (2) obtain appropriate professional consultations; (3) protect the client/patient, psychologist, or others from harm; or (4) obtain payment for services from a client/patient, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose.
4.06 When consulting with colleagues, (1) psychologists do not disclose confidential information that reasonably could lead to the identification of a client/patient, research participant, or other person or organization with whom they have a confidential relationship unless they have obtained the prior consent of the person or organization or the disclosure cannot be avoided, and (2) they disclose information only to the extent necessary to achieve the purposes of the consultation.
4.07 Psychologists do not disclose in their writings, lectures, or other public media, confidential, personally identifiable information concerning their clients/patients, students, research participants, organizational clients, or other recipients of their services that they obtained during the course of their work, unless (1) they take reasonable steps to disguise the person or organization, (2) the person or organization has consented in writing, or (3) there is legal authorization for doing so.
6. (b) If confidential information concerning recipients of psychological services is entered into databases or systems of records available to persons whose access has not been consented to by the recipient, psychologists use coding or other techniques to avoid the inclusion of personal identifiers.
(c) Psychologists make plans in advance to facilitate the appropriate transfer and to protect the confidentiality of records and data in the event of psychologists’ withdrawal from positions or practice.
10.01 (a) When obtaining informed consent to therapy as required in Standard 3.10, Informed Consent, psychologists inform clients/patients as early as is feasible in the therapeutic relationship about the nature and anticipated course of therapy, fees, involvement of third parties, and limits of confidentiality and provide sufficient opportunity for the client/patient to ask questions and receive answers.
10.02 (a) When psychologists agree to provide services to several persons who have a relationship (such as spouses, significant others, or parents and children), they take reasonable steps to clarify at the outset (1) which of the individuals are clients/patients and (2) the relationship the psychologist will have with each person. This clarification includes the psychologist’s role and the probable uses of the services provided or the information obtained.
10.03 When psychologists provide services to several persons in a group setting, they describe at the outset the roles and responsibilities of all parties and the limits of confidentiality.

American Association for Marriage and Family Therapy (AAMFT) Ethics Code, 2015

Standard I RESPONSIBILITY TO CLIENTS

Marriage and family therapists advance the welfare of families and individuals and make reasonable efforts to find the appropriate balance between conflicting goals within the family system.

1.2 Informed Consent.Marriage and family therapists obtain appropriate informed consent to therapy or related procedures and use language that is reasonably understandable to clients. When persons, due to age or mental status, are legally incapable of giving informed consent, marriage and family therapists obtain informed permission from a legally authorized person, if such substitute consent is legally permissible. The content of informed consent may vary depending upon the client and treatment plan; however, informed consent generally necessitates that the client: (a) has the capacity to consent; (b) has been adequately informed of significant information concerning treatment processes and procedures; (c) has been adequately informed of potential risks and benefits of treatments for which generally recognized standards do not yet exist; (d) has freely and without undue influence expressed consent; and (e) has provided consent that is appropriately documented.

1.13 Relationships with Third Parties.Marriage and family therapists, upon agreeing to provide services to a person or entity at the request of a third party, clarify, to the extent feasible and at the outset of the service, the nature of the relationship with each party and the limits of confidentiality.
Standard II CONFIDENTIALITY

Marriage and family therapists have unique confidentiality concerns because the client in a therapeutic relationship may be more than one person. Therapists respect and guard the confidences of each individual client.

2.1 Disclosing Limits of Confidentiality.Marriage and family therapists disclose to clients and other interested parties at the outset of services the nature of confidentiality and possible limitations of the clients’ right to confidentiality. Therapists review with clients the circumstances where confidential information may be requested and where disclosure of confidential information may be legally required. Circumstances may necessitate repeated disclosures.

2.2 Written Authorization to Release Client Information.Marriage and family therapists do not disclose client confidences except by written authorization or waiver, or where mandated or permitted by law. Verbal authorization will not be sufficient except in emergency situations, unless prohibited by law. When providing couple, family or group treatment, the therapist does not disclose information outside the treatment context without a written authorization from each individual competent to execute a waiver. In the context of couple, family or group treatment, the therapist may not reveal any individual’s confidences to others in the client unit without the prior written permission of that individual.

2.3 Client Access to Records.Marriage and family therapists provide clients with reasonable access to records concerning the clients. When providing couple, family, or group treatment, the therapist does not provide access to records without a written authorization from each individual competent to execute a waiver. Marriage and family therapists limit client’s access to their records only in exceptional circumstances when they are concerned, based on compelling evidence, that such access could cause serious harm to the client. The client’s request and the rationale for withholding some or all of the record should be documented in the client’s file. Marriage and family therapists take steps to protect the confidentiality of other individuals identified in client records.

2.4 Confidentiality in Non-Clinical Activities.Marriage and family therapists use client and/or clinical materials in teaching, writing, consulting, research, and public presentations only if a written waiver has been obtained in accordance with Standard 2.2, or when appropriate steps have been taken to protect client identity and confidentiality.

2.5 Protection of Records.Marriage and family therapists store, safeguard, and dispose of client records in ways that maintain confidentiality and in accord with applicable laws and professional standards.

2.6 Preparation for Practice Changes.In preparation for moving a practice, closing a practice, or death, marriage and family therapists arrange for the storage, transfer, or disposal of client records in conformance with applicable laws and in ways that maintain confidentiality and safeguard the welfare of clients.

2.7 Confidentiality in Consultations.Marriage and family therapists, when consulting with colleagues or referral sources, do not share confidential information that could reasonably lead to the identification of a client, research participant, supervisee, or other person with whom they have a confidential relationship unless they have obtained the prior written consent of the client, research participant, supervisee, or other person with whom they have a confidential relationship. Information may be shared only to the extent necessary to achieve the purposes of the consultation.
Standard III PROFESSIONAL COMPETENCE AND INTEGRITY

Marriage and family therapists maintain high standards of professional competence and integrity.

3.2 Knowledge of Regulatory Standards.Marriage and family therapists pursue appropriate consultation and training to ensure adequate knowledge of and adherence to applicable laws, ethics, and professional standards.

3.4 Conflicts of Interest.Marriage and family therapists do not provide services that create a conflict of interest that may impair work performance or clinical judgment.

3.11 Public Statements.Marriage and family therapists, because of their ability to influence and alter the lives of others, exercise special care when making public their professional recommendations and opinions through testimony or other public statements.
Standard IV RESPONSIBILITY TO STUDENTS AND SUPERVISEES

Marriage and family therapists do not exploit the trust and dependency of students and supervisees.

4.7 Confidentiality with Supervisees. Marriage and family therapists do not disclose supervisee confidences except by written authorization or waiver, or when mandated or permitted by law. In educational or training settings where there are multiple supervisors, disclosures are permitted only to other professional colleagues, administrators, or employers who share responsibility for training of the supervisee. Verbal authorization will not be sufficient except in emergency situations, unless prohibited by law.
Standard V RESEARCH AND PUBLICATION

Marriage and family therapists respect the dignity and protect the welfare of research participants, and are aware of applicable laws, regulations, and professional standards governing the conduct of research.

5. 3 Informed Consent to Research.Marriage and family therapists inform participants about the purpose of the research, expected length, and research procedures. They also inform participants of the aspects of the research that might reasonably be expected to influence willingness to participate such as potential risks, discomforts, or adverse effects. Marriage and family therapists are especially sensitive to the possibility of diminished consent when participants are also receiving clinical services, or have impairments which limit understanding and/or communication, or when participants are children. Marriage and family therapists inform participants about any potential research benefits, the limits of confidentiality, and whom to contact concerning questions about the research and their rights as research participants.

5.5 Confidentiality of Research Data.Information obtained about a research participant during the course of an investigation is confidential unless there is a waiver previously obtained in writing. When the possibility exists that others, including family members, may obtain access to such information, this possibility, together with the plan for protecting confidentiality, is explained as part of the procedure for obtaining informed consent.
Standard VITECHNOLOGY-ASSISTED PROFESSIONAL SERVICES

Therapy, supervision, and other professional services engaged in by marriage and family therapists take place over an increasing number of technological platforms. There are great benefits and responsibilities inherent in both the traditional therapeutic and supervision contexts, as well as in the utilization of technologically-assisted professional services. This standard addresses basic ethical requirements of offering therapy, supervision, and related professional services using electronic means.

6.3 Confidentiality and Professional Responsibilities.It is the therapist’s or supervisor’s responsibility to choose technological platforms that adhere to standards of best practices related to confidentiality and quality of services, and that meet applicable laws. Clients and supervisees are to be made aware in writing of the limitations and protections offered by the therapist’s or supervisor’s technology.

6.4 Technology and Documentation.Therapists and supervisors are to ensure that all documentation containing identifying or otherwise sensitive information which is electronically stored and/or transferred is done using technology that adhere to standards of best practices related to confidentiality and quality of services, and that meet applicable laws. Clients and supervisees are to be made aware in writing of the limitations and protections offered by the therapist’s or supervisor’s technology.
Standard VII PROFESSIONAL EVALUATIONS

Marriage and family therapists aspire to the highest of standards in providing testimony in various contexts within the legal system.

7.5 Avoiding Conflicts.Clear distinctions are made between therapy and evaluations. Marriage and family therapists avoid conflict in roles in legal proceedings wherever possible and disclose potential conflicts. As therapy begins, marriage and family therapists clarify roles and the extent of confidentiality when legal systems are involved.
Standard VIII FINANCIAL ARRANGEMENTS

Marriage and family therapists make financial arrangements with clients, third-party payors, and supervisees that are reasonably understandable and conform to accepted professional practices.

8.3 Notice of Payment Recovery Procedures.Marriage and family therapists give reasonable notice to clients with unpaid balances of their intent to seek collection by agency or legal recourse. When such action is taken, therapists will not disclose clinical information.

American Counseling Association (ACA) Code of Ethics and Standards of Practice, Effective 2014

A.2. Informed Consent in the Counseling Relationship
A.2.b. Types of Information Needed. Counselors explicitly explain to clients the nature of all services provided. They inform clients about issues such as, but not limited to, the following: the purposes, goals, techniques, procedures, limitations, potential risks, and benefits of services; the counselor’s qualifications, credentials, relevant experience, and approach to counseling; continuation of services upon the incapacitation or death of the counselor; the role of technology; and other pertinent information. Counselors take steps to ensure that clients understand the implications of diagnosis and the intended use of tests and reports. Additionally, counselors inform clients about fees and billing arrangements, including procedures for nonpayment of fees. Clients have the right to confidentiality and to be provided with an explanation of its limits (including how supervisors and/or treatment or interdisciplinary team professionals are involved), to obtain clear information about their records, to participate in the ongoing counseling plans, and to refuse any services or modality changes and to be advised of the consequences of such refusal.
B.1.b. Respect for Privacy. Counselors respect the privacy of prospective and current clients. Counselors request private information from clients only when it is beneficial to the counseling process.
B.2. Exceptions.
B.2.a. Serious and Foreseeable Harm and Legal Requirements. The general requirement that counselors keep information confidential does not apply when disclosure is required to protect clients or identified others from serious and foreseeable harm or when legal requirements demand that confidential information must be revealed. Counselors consult with other professionals when in doubt as to the validity of an exception. Additional considerations apply when addressing end-of-life issues.
B.2.c. Contagious, Life-Threatening Diseases. When clients disclose that they have a disease commonly known to be both communicable and life threatening, counselors may be justified in disclosing information to identifiable third parties, if the parties are known to be at serious and foreseeable risk of contracting the disease. Prior to making a disclosure, counselors assess the intent of clients to inform the third parties about their disease or to engage in any behaviors that may be harmful to an identifiable third party. Counselors adhere to relevant state laws concerning disclosure about disease status.
B.2.d. Court-Ordered Disclosure. When ordered by a court to release confidential or privileged information without a client’s permission, counselors seek to obtain written, informed consent from the client or take steps to prohibit the disclosure or have it limited as narrowly as possible because of potential harm to the client or counseling relationship.
B.2.e. Minimal Disclosure. To the extent possible, clients are informed before confidential information is disclosed and are involved in the disclosure decision-making process. When circumstances require the disclosure of confidential information, only essential information is revealed.
B.3. Information Shared With Others
B.3.a. Subordinates. Counselors make every effort to ensure that privacy and confidentiality of clients are maintained by subordinates, including employees, supervisees, students, clerical assistants, and volunteers.
B.3.b. Interdisciplinary Teams. When services provided to the client involve participation by an interdisciplinary or treatment team, the client will be informed of the team’s existence and composition, information being shared, and the purposes of sharing such information.
B.4.b. Couples and Family Counseling. In couples and family counseling, counselors clearly define who is considered “the client” and discuss expectations and limitations of confidentiality. Counselors seek agreement and document in writing such agreement among all involved parties regarding the confidentiality of information. In the absence of an agreement to the contrary, the couple or family is considered to be the client.
B.5.b. Responsibility to Parents and Legal Guardians. Counselors inform parents and legal guardians about the role of counselors and the confidential nature of the counseling relationship, consistent with current legal and custodial arrangements. Counselors are sensitive to the cultural diversity of families and respect the inherent rights and responsibilities of parents/guardians regarding the welfare of their children/charges according to law. Counselors work to establish, as appropriate, collaborative relationships with parents/guardians to best serve clients.
B.6. Records and Documentation
B.6.a. Creating and Maintaining Records and Documentation. Counselors create and maintain recordsand documentation necessary for rendering professional services.
B.6.b. Confidentiality of Records and Documentation. Counselors ensure that records and documentation kept in any medium are secure and that only authorized persons have access to them.
B.6.c. Permission to Record. Counselors obtain permission from clients prior to recording sessions through electronic or other means.
B.6.d. Permission to Observe. Counselors obtain permission from clients prior to allowing any person to observe counseling sessions, review session transcripts, or view recordings of sessions with supervisors, faculty, peers, or others within the training environment.
B.6.e. Client Access. Counselors provide reasonable access to records and copies of records when requested by competent clients. Counselors limit the access of clients to their records, or portions of their records, only when there is compelling evidence that such access would cause harm to the client. Counselors document the request of clients and the rationale for withholding some or all of the records in the files of clients. In situations involving multiple clients, counselors provide individual clients with only those parts of records that relate directly to them and do not include confidential information related to any other client.
B.6.f. Assistance With Records. When clients request access to their records, counselors provide assistance and consultation in interpreting counseling records.
B.6.g. Disclosure or Transfer. Unless exceptions to confidentiality exist, counselors obtain written permission from clients to disclose or transfer records to legitimate third parties. Steps are taken to ensure that receivers of counseling records are sensitive to their confidential nature.
B.7.a. Respect for Privacy. Information shared in a consulting relationship is discussed for professional purposes only. Written and oral reports present only data germane to the purposes of the consultation, and every effort is made to protect client identity and to avoid undue invasion of privacy.

California Association of Marriage and Family Therapists (CAMFT)

1.4 Marriage and family therapists respect the right of patients to make decisions and help them to understand the consequences of these decisions. Marriage and family therapists provide adequate information to patients so that patients can make meaningful decisions about their therapy.
1.4.4 Marriage and family therapists obtain written informed consent from clients before videotaping, audio recording, or permitting third party observation.
1.4.5 Marriage and family therapists are encouraged to inform patients as to the limits of confidentiality.
1.4.7 When therapy occurs by electronic means, marriage and family therapists inform patients of the potential risks and benefits, including but not limited to, issues of confidentiality, clinical limitations, transmission difficulties, and ability to respond to emergencies.
1.10 Marriage and family therapists, when treating a family unit(s), shall carefully consider the potential conflict that may arise between the family unit(s) and each individual. Marriage and family therapists clarify at the commencement of therapy which person or persons are clients and the nature of the relationship(s) the therapist will have with each person involved in the treatment.
2.1 Marriage and family therapists do not disclose patient confidences, including the names or identities of their patients, to anyone except a) as mandated by law b) as permitted by law c) when the marriage and family therapist is a defendant in a civil, criminal or disciplinary action arising from the therapy (in which case patient confidences may only be disclosed in the course of that action), or d) if there is an authorization previously obtained in writing, and then such information may only be revealed in accordance with the terms of the authorization.
2.2 When there is a request for information related to any aspect of psychotherapy or treatment, each member of the unit receiving such therapeutic treatment must sign an authorization before a marriage and family therapist will disclose information received from any member of the treatment unit.
2.3 Marriage and family therapists are aware of the possible adverse effects of technological changes with respect to the dissemination of patient information, and take reasonable care when disclosing such information. Marriage and family therapists are also aware of the limitations regarding confidential transmission by Internet or electronic media and take extra care when transmitting or receiving such information via these mediums.
2.4 Marriage and family therapists store, transfer, transmit, and/or dispose of patient records in ways that protect confidentiality.
2.5 Marriage and family therapists take appropriate steps to ensure, insofar as possible, that the confidentiality of patients is maintained by their employees, supervisees, assistants and volunteers.
2.6 Marriage and family therapists use clinical materials in teaching, writing, and public presentations only if a written authorization has been previously obtained in accordance with 2.1 d, or when appropriate steps have been taken to protect patient identity.
2.7 Marriage and family therapists, when working with a group, explain to the group the importance of maintaining confidentiality, and are encouraged to obtain agreement from group participants to respect the confidentiality of other members of the group.
3.3 Marriage and family therapists maintain patient records, whether written, taped, computerized, or stored in any other medium, consistent with sound clinical practice
6.4 Information obtained about a research participant during the course of an investigation is confidential unless there is an authorization previously obtained in writing. When the possibility exists that others, including family members, may obtain access to such information, this possibility, together with the plan for protecting confidentiality, is explained as part of the procedure for obtaining informed consent.

National Association of Social Workers (NASW) Code of Ethics (2017)

1.03 (a) Social workers should provide services to clients only in the context of a professional relationship based, when appropriate, on valid informed consent. Social workers should use clear and understandable language to inform clients of the purpose of the services, risks related to the services, limits to services because of the requirements of a third-party payer, relevant costs, reasonable alternatives, clients’ right to refuse or withdraw consent, and the time frame covered by the consent. Social workers should provide clients with an opportunity to ask questions.
(e) Social workers who provide services via electronic media (such as computer, telephone, radio, and television) should inform recipients of the limitations and risks associated with such services.
(f) Social workers should obtain clients’ informed consent before audio taping or video taping clients or permitting observation of services to clients by a third party.
1.07 (a) Social workers should respect clients’ right to privacy. Social workers should not solicit private information from clients unless it is essential to providing services or conducting social work evaluation or research. Once private information is shared, standards of confidentiality apply.
(b) Social workers may disclose confidential information when appropriate with valid consent from a client or a person legally authorized to consent on behalf of a client.
(c) Social workers should protect the confidentiality of all information obtained in the course of professional service, except for compelling professional reasons. The general expectation that social workers will keep information confidential does not apply when disclosure is necessary to prevent serious, foreseeable, and imminent harm to a client or other identifiable person. In all instances, social workers should disclose the least amount of confidential information necessary to achieve the desired purpose; only information that is directly relevant to the purpose for which the disclosure is made should be revealed.
(d) Social workers should inform clients, to the extent possible, about the disclosure of confidential information and the potential consequences, when feasible before the disclosure is made. This applies whether social workers disclose confidential information on the basis of a legal requirement or client consent.
(e) Social workers should discuss with clients and other interested parties the nature of confidentiality and limitations of clients’ right to confidentiality. Social workers should review with clients the circumstances where confidential information may be requested and where disclosure of confidential information may be legally required. This discussion should occur as soon as possible in the social worker-client relationship and as needed throughout the course of the relationship.
(f) When social workers provide counseling services to families, couples, or groups, social workers should seek agreement among the parties involved concerning each individual’s right to confidentiality and obligation to preserve the confidentiality of information shared by others. Social workers should inform participants in family, couples, or group counseling that social workers cannot guarantee that all participants will honor such agreements.
(g) Social workers should inform clients involved in family, couples, marital, or group counseling of the social worker’s, employer’s, and agency’s policy concerning the social worker’s disclosure of confidential information among the parties involved in the counseling.
(h) Social workers should not disclose confidential information to third-party payers unless clients have authorized such disclosure.
(i) Social workers should not discuss confidential information in any setting unless privacy can be ensured. Social workers should not discuss confidential information in public or semipublic areas such as hallways, waiting rooms, elevators, and restaurants.
(j) Social workers should protect the confidentiality of clients during legal proceedings to the extent permitted by law. When a court of law or other legally authorized body orders social workers to disclose confidential or privileged information without a client’s consent and such disclosure could cause harm to the client, social workers should request that the court withdraw the order or limit the order as narrowly as possible or maintain the records under seal, unavailable for public inspection.
(k) Social workers should protect the confidentiality of clients when responding to requests from members of the media.
(l) Social workers should protect the confidentiality of clients’ written and electronic records and other sensitive information. Social workers should take reasonable steps to ensure that clients’ records are stored in a secure location and that clients’ records are not available to others who are not authorized to have access.
(m) Social workers should take precautions to ensure and maintain the confidentiality of information transmitted to other parties through the use of computers, electronic mail, facsimile machines, telephones and telephone answering machines, and other electronic or computer technology. Disclosure of identifying information should be avoided whenever possible.
(n) Social workers should transfer or dispose of clients’ records in a manner that protects clients’ confidentiality and is consistent with state statutes governing records and social work licensure.
(o) Social workers should take reasonable precautions to protect client confidentiality in the event of the social worker’s termination of practice, incapacitation, or death.
(p) Social workers should not disclose identifying information when discussing clients for teaching or training purposes unless the client has consented to disclosure of confidential information.
(q) Social workers should not disclose identifying information when discussing clients with consultants unless the client has consented to disclosure of confidential information or there is a compelling need for such disclosure.
(r) Social workers should protect the confidentiality of deceased clients consistent with the preceding standards.
1.08 (a) Social workers should provide clients with reasonable access to records concerning the clients. Social workers who are concerned that clients’ access to their records could cause serious misunderstanding or harm to the client should provide assistance in interpreting the records and consultation with the client regarding the records. Social workers should limit clients’ access to their records, or portions of their records, only in exceptional circumstances when there is compelling evidence that such access would cause serious harm to the client. Both clients’ requests and the rationale for withholding some or all of the record should be documented in clients’ files.
(b) When providing clients with access to their records, social workers should take steps to protect the confidentiality of other individuals identified or discussed in such records.
2.02 Social workers should respect confidential information shared by colleagues in the course of their professional relationships and transactions. Social workers should ensure that such colleagues understand social workers’ obligation to respect confidentiality and any exceptions related to it.
2.05 When consulting with colleagues about clients, social workers should disclose the least amount of information necessary to achieve the purposes of the consultation.
3.04 (a) Social workers should take reasonable steps to ensure that documentation in records is accurate and reflects the services provided.
(b) Social workers should include sufficient and timely documentation in records to facilitate the delivery of services and to ensure continuity of services provided to clients in the future.
(c) Social workers’ documentation should protect clients’ privacy to the extent that is possible and appropriate and should include only information that is directly relevant to the delivery of services.
(d) Social workers should store records following the termination of services to ensure reasonable future access. Records should be maintained for the number of years required by state statutes or relevant contracts.

Summary of Codes of Ethics on Confidentiality

There exists uniform agreement in the ethics codes of the mental health professions that confidentiality is a fundamental right of all those to whom we provide services. These ethics codes make it very clear that confidentiality and its limits are important issues to include in each client’s, student’s, supervisee’s and research subject’s informed consent agreement at the outset of the professional relationship and on an ongoing basis if any changes to it arise. The ethics codes are also clear that all reasonably expected limits to confidentiality should be discussed in detail so the individual can make an informed decision about participation in light of these anticipated limitations.

It is also seen that each ethics code addresses confidentiality in all settings, with all treatment modalities, and with all populations. Services provided in person, via the telephone, online, and through other media; to children and adolescents, the elderly, those with diminished capacity to consent, those referred by third-parties, those being involuntarily treated; individuals, couples, families, and groups; all need to have confidentiality and its limits explained to participants at the outset and efforts must be made not to violate their confidentiality rights.

The ethics codes also make it clear that each individual’s confidentiality rights must be preserved even when mental health professionals seek consultation from colleagues, when using clinical information for teaching purposes, and when sharing research and assessment results. Further, similar efforts must be made to ensure that confidentiality is protected and preserved in the storage, retention, disposal, and sharing of clinical records. It is each mental health professional’s ethical obligation to anticipate risks to confidentiality take preventative steps to ensure confidentiality is not inappropriately violated and accept responsibility for our subordinates in the protection of confidentiality, as well. We all also must comply with relevant laws and breech confidentiality as required (having already included these limits in the informed consent agreement and ensuring that the client understands this). We also must transmit, share and communicate confidential information (with appropriate consent) in a manner that protects confidentiality and minimizes the risk of inadvertent disclosures.

Addendum for California Therapists and CA Law on Confidentiality

For details about California law as it pertains to confidentiality, please go to: https://www.zurinstitute.com/online/confidentiality_calaw.html

Confidentiality Online Resources

Ethics Codes On Confidentiality In Psychotherapy and Counseling

Intersection of Law, Psychotherapy and Confidentiality

A Guide to Psychology and Its Practice: Confidentiality

Does Confidentiality Exist?

Confidentiality: Limits or limitations?

Confidentiality and the Ethical Treatment of Minors: Ethical, Legal, and Clinical Issues

Confidentiality in the Treatment of Adolescents

The Technical and Legal Implications of Jaffe v. Redmond and the HIPAA Privacy Rule for Psychotherapy and General Psychiatry

Confidentiality In the Movies

A number of movies have presented issues of confidentiality in different lights and different contexts. Following is a description of the movies and a summary of the cinematic presentation of confidentiality in therapy.

For a description of the movies, click here.

Antwone Fisher

Antwone Fisher, an African-American in the U.S. Navy, has trouble with his anger. An African-American psychiatrist, Dr. Jerome Davenport, helps him work through his extensive childhood trauma.

Confidentiality in a military environment

Antwone is ordered to see superior officer Davenport, a Navy psychiatrist, at an outpatient clinic at a U.S. naval base to be evaluated and screened for psychological issues that might impair service and to provide brief therapy. When Antwone skips his second session, the psychiatrist has officers escort him to the appointment the following week.

Confidentiality in a military setting has a very different meaning than in the public sector. In fact military therapists’ clients are not the clients they see in their offices but the Department of Defense. The therapists primary goal is national defense and unit combat readiness rather than the client’s well being. Accordingly, clinical information is available to a whole range of personal who may be authorized to review the clinical records, including treatment record and psychological testing.

Sharing confidential information with a spouse

Dr. Davenport tells his wife details that Antwone had told him during their sessions.

The movie does not give details of the background for such disclosure. Ms. Davenport is privy to a significant amount of information about the client as he joined her, at her husband’s invitation, for a family dinner. Undoubtedly, Dr. Davenport should have obtained a consent to release information from his client before discussing the case with his wife. Having not done that his actions were unethical, potentially illegal and most probably below the standard of care.

Basic Instinct

Detective Nick Curran and his colleague, Gus Moran, investigate a murder. Curran gets sexually involved with one of the suspects, Catherine Tramell. He is in psychotherapy with police psychologist, Dr. Beth Garner, who had also become his lover. In order to protect Curran, Dr. Garner gives Lt. Marty Nilsen access to the therapy notes about Curran.

Disclosing confidential information in police setting

Catherine may be a killer and yet Nick Curran is mesmerized – attracted by her sensuous magnetism. While he questions her, she tells him information about himself that she only knows because she paid the corrupt police officer, Lt. Marty Nilsen, to give her access to the therapy notes about Curran. Curran is furious about the therapist’s betrayal, lets himself into Garner’s apartment with the key that she had given him during their romance, and confronts her. She admits that she gave a copy of her clinical notes to Lt. Nilsen. This officer had blackmailed her by threatening to let Internal Affairs know about her sexual affair with her client. Garner believed that such a revelation would hurt Curran because her evaluation of him would have been considered as not being objective. With this explanation Beth tries to convince Curran that she released her notes to Nilsen in order to help him.

This is a very complicated case around confidentiality issues in a forensic setting of a police department. As often happens in such settings, Dr. Garner and her police office client are both employed by the police department. Dr. Garner released confidential information without her client’s authorization or knowledge in her attempt to protect the client’s professional standing. Because she is still romantically attached to her client, she has an extra incentive to help him and, contrary to her intention, hurts him by releasing the confidential clinical notes. Since both the therapist and the client are employees of the police department, the confidentiality of her client notes might not be as strongly protected as in other therapeutic environments. Some forensic settings, like the one in the movie, may permit supervisor’s access to the files. In such cases patients must be notified in writing about the accessibility of their records by supervisors before treatment is initiated. Office policies and/or Informed Consent must articulate the limitation of confidentiality, including who has access to the records, and under what circumstance.

Bliss

Maria and Joseph see Alfred for couples therapy, while Maria secretly consults sex therapist Dr. Baltazar Vincenza. The latter therapeutic relationship ends when Baltazar starts teaching Joseph “the ways of love.”

Unsecured Office

Because the therapist leaves a window open, Joseph and his colleagues can observe Baltazar’s sexual activities with his female clients with a telescope from a construction site.

This movie vignette reminds us of the importance of keeping the office secured from unauthorized access and intrusive people. Securing offices from sound and sight are important. This also applies to hard copies and electronic confidential data. Locked cabinets, secured offices and computer passwords are some of the basic ways to protect confidential information. HIPAA regulation has created a new floor regarding confidentiality of records that is likely to become the national standard of care.

Protecting Confidentiality while Discussing Cases

Baltazar talks to Joseph about Maria and the clinical histories of other clients during his visits. Although he doesn’t mention the names of his other clients, their stories can potentially reveal their identities.

Unless clients sign an authorization to release information, therapists must be very careful in presenting cases in regard to clients’ confidentiality. In such cases identifying information must not be shared and disguising the client’s identity is advised.

Therapists-Clients’ Discussions in Public Places

Toward the later part of the movie Joseph finds Baltazar at his garage. They talk about his disappointment that Maria asked him to move out.

Discussions between clients and therapists that take place in public places must be handled carefully and professionally by therapists. Many out-of-office encounters have the potential for confidential information to be revealed to unintended ears. Therapists must pay attention to the situation, the environment and the content of the discussion. However, if a client approaches the therapist in a public place where the conversation may be overheard, the therapist must pay attention to what he/she says, may limit or even try to stop the conversation but may not have control over what the client chooses to say. A therapist can help clients realize the fact that the conversation may be overheard, but ultimately the client, not the therapist, is responsible for his/her choices of statements in public places.

Confidentiality in Couple and Individual Therapy

Joseph tells Baltazar that he wants to heal his wife. The therapist first declines but then agrees to see Joseph as a client. He emphasizes, “I will be helping you”. When Joseph asks him to not see Maria any more, Baltazar responds, “If I teach you the ways of love, it would not be my place to see Maria.”

Working with individuals and couples simultaneously or sequentially can be tricky from a confidentiality point of view. The issue comes up primarily when one person of the couple reveals information that is unknown to the partner. Therapists must be very clear on the issue of secrets in their office policies and discuss these issues prior to the initiation of treatment. One option is to add the following sentence to the office policies: “In couple and family therapy, or when different family members are seen individually even over a period of time, confidentiality and privilege do not apply between the couple or among family members, unless otherwise agreed upon. Dr. Xxx will use his clinical judgment when revealing such information.”

Dressed to Kill

After Kate Miller is brutally murdered, Dr. Elliot, her psychiatrist, and Detective Marino try to find her killer. Kate’s teenage son teams up with a prostitute, Liz Blake, who witnessed the murder, to do an investigation of their own.

Careless or Negligent Disclosure of Information

Dr. Elliott completes a phone call with another patient as Kate walks into the office. She can hear everything he says.

Detective Marino asks Elliott whether one of his other patients might be disturbed enough to be considered a potential killer. He threatens to confiscate his patient records when the psychiatrist expresses concerns about his patients’ confidentiality. To help the police the prostitute, Liz Blake, searches through Elliott’s patient’s records after seducing him. He jeopardizes his patients’ confidentiality by leaving Liz alone in the part of his office where he keeps his patient records.

It is unethical and often illegal to disclose information by letting people overhear confidential information. Not letting people overhear private or confidential phone conversations, and face-to-face conversations is similar to the requirement to protect hard copy or electronic records from unauthorized access. Protection from unauthorized access is most often applied to cleaning services, family members, patients in waiting rooms, co-renters and colleagues. HIPAA regulations have emphasized the importance of keeping the privacy of confidential clinical computer information, answering machines and phone conversations.

Disclosing Information Regarding Deceased Patient

The psychiatrist gets a call from the police saying that a patient of his was murdered. During his subsequent interview at the police station, Elliott is first hesitant but soon reveals details about Kate’s therapy.

After several unsuccessful attempts to get hold of Bobbi, Elliott visits Dr. Levy. The psychiatrists talk about their patient and don’t seem to be concerned about protecting Bobbi’s confidentiality.

Death of a client in general, and when a client is murdered, often present a complex web of ethical and legal obligations for therapists. Generally, psychotherapists do not have an ethical or legal mandate to break confidentiality in an attempt to resolve the mystery of their client’s murder. Basically, the executor of the estate of the deceased client is the one that has the authority to authorize release of privileged information. However, in a wrongful death or other criminal investigation police may issue subpoenas that the court may back up. It is very important that therapists do not talk to police, DAs, investigators and detectives, deceased’s family members, other clients or fellow therapists unless they have authorization to release from the executor of the estate, or respond to a subpoena, or other circumstances that may create a mandate for reporting. It is highly advised that therapists seek ethical and legal consultation, verify the legal status of the executor of the estate and explore the ramifications of disclosing information about the deceased clients’ family, friends, etc.

Confidential Records of Deceased Client

After Kate’s murder the psychiatrist fears that an ex-patient, Bobbi, may be the killer, because he stole a razor from the psychiatrist’s office. Bobbi first leaves a mysterious message on Dr. Elliott’s answering machine stating that he will soon get a sex change operation that was not approved by Dr. Elliott. Bobbi is a man who wants to become a woman. The ex-patient also states that a Dr. Levy approved the operation, that “some blond bitch saw me borrowing the razor,” and that Bobbi wants to “get her.” Subsequent threatening messages make his ex-patient appear even more suspicious to the psychiatrist.

Elliott’s involvement in the murder investigation does not point to a clear ethical violation. As was noted above, extreme caution must be exercised in regard to the confidential records of a deceased patient.

Girl, Interrupted

After a half-hearted suicide attempt and being evaluated by psychiatrist Dr. Crumble, Susanna Kaysen spends one year at Claymoore. In this psychiatric hospital she receives treatment from Dr. Melvin Protts and Dr. Sonia Wick, while nurse Valerie looks after her. Susanna befriends the other patients, Lisa, Daisy, Janet, and Georgina.

Disclosure of Confidential Information Regarding a Hospitalized Adult Patient

In a family session at Claymoore Susanna learns from her father that Dr. Melvin Potts had told her parents on the phone that she suffers from Borderline Personality Disorder. Because the psychiatrist thinks that this knowledge can affect Susanna’s recovery, Potts suggests to the parents that they talk about his patient’s condition on their way out, but Susanna insists that the psychiatrist explain her diagnosis to her. He reluctantly gives in to her demand and adds, “It’s not uncommon, especially among young women.”

Confidentiality is compromised when the psychiatrist talks to her parents about Susanna’s diagnosis. As in other parts of the movie, the adult Susanna is treated like a child. The Information about her diagnosis is given to her parents even before she hears about it. When considering talking to an adult’s parents about treatment and dx considerations, it is very important that authorizations to disclose information are in place. Sometimes family therapy or family involvement may necessitate extensive disclosures, which must be made within the parameters of the law.

Confidentiality in Hospital Outing

Susanna, Lisa and several other girls go with a couple of nurses to an ice cream parlor. In the store Susanna is unsuccessful in trying to hide from Mrs. Gilcrest and her daughter, Bonnie. Susanna had a sexual affair with her teacher, Professor Gilcrest, who seduced her during her school years. When Mrs. Gilcrest discovers Susanna, she insults her, “I know everything about you. I hope that they’ll put you away forever.”

When hospitalized patients go on outings, there is always a risk that confidentiality may be compromised. In this case, when the patients of the mental hospital are brought to an ice cream cafe in which other community members eat, their mental patients’ status is revealed and confidentiality is compromised. This is a case where hospital policies should spell out such a risk so that clients are fully informed on the issue.

Good Will Hunting

Will Hunting, a working-class young math genius, is wasting his talent. Mathematics professor Lambeau takes him under his wing and finds a therapist for his protégé. In his therapy with Sean McGuire he begins the healing process of his childhood trauma.

Discussing Confidential Information with Other Therapists

Lambeau introduces Will to different therapists. One of them tries to hypnotize the young man while Lambeau and his colleague are watching the therapeutic process.

Needless to say, therapists have ethical, clinical and legal obligations to have an authorization to disclose information from patients before they discuss any confidential information with other therapists. The movie is not explicit as to whether Will provided Lambeau with such authorization.

Discussing Confidential Information with the Referring Therapist

During their entire third session neither therapist nor client say anything. Afterwards, McGuire talks about their silence to professor Lambeau. He explains that his client might need to prove to him that he doesn’t need to talk if he doesn’t want to, and that it is not therapeutically appropriate for McGuire to start talking first.

When Will’s therapy progresses, Lambeau checks in with McGuire several times about his client’s progress. He even suggests that the therapy take a different direction. They should focus more on Will’s future than his past. The therapist expresses his reluctance because he thinks, “he is not ready for that,” and argues with Lambeau about his therapeutic approach. In one scene Will overhears an intense, loud and angry discussion between McGuire and Lambeau about the goal of the young man’s therapy.

Generally, discussing the progress of a client with referring source or referring therapist has often been cited as a violation of confidentiality. Many therapists do not want to offend the referring person by telling them that they can neither discuss the case nor acknowledge that they still see the client, unless they have a written authorization to disclose such information.

Grosse Pointe Blank

A psychiatrist, Dr. Oatman, is alarmed to learn that his patient, Martin, is a hit man.

Confidentiality Issues and Tarasoff

Dr. Oatman says that he would have to tell the authorities if Martin committed a crime or thought about committing a crime.

In most states the Tarasoff ruling is applied when a client communicates to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims. It is the therapist’s duty to make reasonable effort to communicate the threat to the victim or victims and to a law enforcement agency. Failure to act may also result in potential civil liabilities. The question in the case is whether the hit man is still in this line of work, and whether he reveals to the therapist the identity of his victims. Therapists cannot break confidentiality and report past murders or crimes revealed to them in therapy. It is highly advised that therapists seek clinical, ethical and, above all, legal consultation in such cases.

House of Games

Margaret Ford, a repressed psychiatrist, tries to help her patient, Billy, with his gambling addiction. Her patient is laying a trap for Margaret when she allows the con artist, Mike, to become her guide through this underworld of confidence games.

Unauthorized Disclosure of Confidential information

Convinced that desperate action is required, Margaret plunges into a shady nighttime world of con men and bunko artists. She goes to a poolroom called the House of Games, a bar where she wants to talk to the gambler, Mike, who has terrorized her patient over his debt. Margaret meets Mike and asks him to leave Billy alone.

The therapist violated ethical codes and probably state law by revealing the fact that she knows Billy in the first place, unless Billy had given her authorization to disclose this information. It is rather clear from the movie that such authorization was neither given by nor discussed with the client.

K-Pax

Dr. Mark Powell is intrigued by his new patient, Prot, who claims to be an alien from the planet K-PAX. In order to evaluate his knowledge in astronomy, the psychiatrist takes his patient to his astronomer friend, Steve Becker, and a group of astrophysicists. Later he brings Prot to a garden party with his wife, Rachel, his children and friends. Powell’s superior, Claudia Villars, does not agree with his approach.

Protecting Confidentiality while Discussing Cases

At a party Powell tells an astronomer friend, Steve Becker, in front of the other guests that he has a patient who claims that he comes from the planet K-Pax. The psychiatrist says, “If I can prove to him that this K-Pax is just a figment of his imagination, maybe I can find out who he really is. His friend responds, “I can give you a whole list of questions to ask your fellow.”

As was discussed above, unless clients sign an authorization to release information, therapists must be very careful in presenting cases in regard to client confidentiality. In such cases identifying or unique information must not be shared and disguising the client’s identity is advised.

Therapist and Client Meeting Jointly with Other People

The psychiatrist passes Steve’s astronomical questions on to Prot, who answers in detail as if he were an astrophysicist. Both Mark and his friend are amazed about Prot’s answers. Steve expresses that he “sure wants to meet this fellow of yours.” Subsequently, Mark Powell takes Prot to a planetarium, where they meet Becker and three other astronomers. The patient demonstrates his astronomical knowledge by describing the intricate orbit of his planet to these scientists who have just discovered it.

Patients have the right to talk about therapeutic and other issues to whomever they want. From a confidentiality point of view patients can join their therapist in a meeting that they freely choose to attend as long as there is no coercion or exploitation on the part of the therapists. There is no need for an authorization to disclose information if the therapists do not divulge confidential information during such meetings. Clear clinical notes and consultations in complex cases are highly advised.

Recorded Sessions

At his home office Mark Powell plays a recording of a session with Prot while the door to the living room is open. Family members might be able to overhear what the patient said to his psychiatrist. Later Powell plays another tape with a recording from a session with Prot to his wife and tells her that his patient wants to leave and return to K-Pax at a certain date and time.

As was noted above, it is the therapist’s responsibility to protect unauthorized access to confidential information. The codes of ethics mandate that an authorization be obtained before playing a tape of a recorded session. Evan when all identifying and unique aspects of the client are removed, an authorization is highly advisable.

Ordinary People

Conrad Jared is the second son of a mild-mannered successful attorney, Calvin, and a selfish, controlling mother, Beth. He sees psychologist, Dr. Berger, after a suicide attempt. Conrad blames himself for his older brother’s drowning death that resulted from a boating accident.

Confidentiality in Therapy with Minors and their Family Members

Dr. Berger meets with Conrad’s father, Calvin, for three reasons: in order to inform him about his assessment of his 15-year-old client, to discuss the dynamics of Jared’s family and to give Calvin advice.

Confidentiality issues, when working with minors in general and adolescents in particular, are clinically, ethically and often legally complex. In principle the parents are the holders of privilege and in many states have legal access to the clinical records. However, therapists must use clinical judgment.

Prime

Rafi Gardet dates a younger man, David Bloomberg. After hearing about this relationship in their sessions for some time, her therapist, Dr. Lisa Metzger, finds out that Rafi’s boyfriend is her own son.

Confidentiality in Consultations

After Dr. Metzger finds out about the intimate aspects of her client and son’s relationship, she shares her concerns with her own therapist. Dr. Metzger wants to know whether she should continue treating Rafi. In one session her own therapist tells Dr. Metzger that her primary job is treating her client: “That is your ethical boundary.” The therapist reasons that the couple might break up after a few weeks of courtship. In that case a termination of therapy might be damaging for Rafi. Now Lisa Metzger gets upset about this conflict and cries. She expresses even more doubts in a later session saying, “I am confused about my part in this.” But her therapist reassures Lisa that she did ok.

Consultation is an extremely important element of psychotherapy practice. Through consultations, therapists can get help in working on their own issues that may come up in the course of therapy, get help with constructing a treatment plan, and dealing with difficult situations and difficult clients. Consultations can also help therapists practice within the standard of care. The proper use of consultations is depicted well in the movie. Therapists have generally two choices in regard to confidentiality when discussing cases with their consultants. They can either get permission to discuss their cases or make sure that the patients’ identity is concealed and all identifying details are not presented in the consultation.

Incidental Encounters and Confidentiality

Dr. Metzger compromises her client’s confidentiality after she suddenly pulls her husband behind a bed trying to avoid being seen by Rafi and David. Because her husband wants to know what is going on, she discloses the nature of her relationship with Rafi.

Incidental, chance or unplanned encounters between therapists and clients always bring up the concern of confidentiality. If the therapist acknowledges the client in public first, that may expose the therapeutic relationship to others. Of course, it is the client’s right to expose the therapeutic relationship if they choose to. In this case exposing the fact that Rafi was in therapy with Dr. Metzger was part of the unavoidable complexities that transpire from the unavoidable dual relationships that the doctor found herself in. Sometimes there are situations where therapists must weigh their options, analyze the risk benefit of each action and non-action and come up with a course of action that is likely to be either most beneficial or less harming to the client. In this difficult and surprising situation Dr. Metzger seemed to assess that not exposing her patient and son to the fact that she is the therapist and a mother was quit reasonable.

Disclosing Confidential Information

When Dr. Metzger tells her son that she knows about his romance and that Rafi is her client, she also discloses some of the content of their therapy sessions with David.

Again, this is a very complex case of dual relationships and confidentiality. Dr. Metzger should have obtained an authorization to release information from Rafi before she spoke to her son. Not doing so is an ethical and perhaps even legal violation.

Prince of Tides

Tom, an unemployed, aimless ex-high school football coach from the South meets his sister’s psychiatrist, Dr. Susan Lowenstein, who wants him to shed light on their family life.

Therapeutic Relationships and Confidentiality

Tom discusses in detail his and his sister’s family background with Dr. Lowenstein. The therapist gives him feedback and tells him her assessment of his sister and their family of origin issues.

Tom gradually slides into the role of a client. While the conversations between Tom and Dr. Lowenstein resemble therapy, Tom is not officially a patient. Generally, concerns with confidentiality are limited to official and legally and ethically binding therapeutic relationships. Collateral meeting with the patient’s family members are considered part of therapy and therefore are private and confidential. The movie present a gray area where it is not clear whether the relationships are social, therapeutic or both.

Stay

A Psychiatrist, Sam Foster, treats art student and painter, Henry Letham. Dr. Foster tries to do everything to figure out why and where his patient wants to kill himself in order to prevent the suicide.

Confidentiality when Patient is Dangerous to Self

When Henry tells Foster that he is going to kill himself, the psychiatrist responds, “How seriously should I take that? … If you are serious, I have to report it.” Later during this dialog, the psychiatrist continues, “Let’s talk about this next time.”

This is a case where the psychiatrist must make a danger to self or suicidality assessment. This includes history, presence of suicidal plans, means and suicidal ideation. In accordance with the client’s presentation the therapist must make an informed decision regarding the necessary intervention. These can range from referring to a psychiatric facility for suicide evaluation, recommending involuntary or voluntary hospitalization or initiate outpatient crisis intervention, etc. Breaking confidentially is an option if it is permitted or mandated by state law in order to protect the client from harming him/herself.

Confidentiality in Out-of-Office Encounters

Confidentiality is not guarantied when Dr. Foster and Henry talk to each other outside the therapy office. At one point the psychiatrist follows his patient to a lecture hall and talks to him in the hallway while other students pass by.

As was noted above, confidentiality can easily be compromised when clinical conversations take place outside the office. While it is the patient’s prerogative to expose the therapeutic relationship in public, the therapist has a burden of trying to protect it when and if possible as long as it is not against the client’s intent.

Disclosing Confidential Information

Dr. Foster breaks the confidentiality of his patient numerous times in his interactions with his girlfriend, Lila. First he leaves messages about Henry on his colleague, Dr. Levy’s, answering machine while his girlfriend is in the same room. Later Dr. Foster reads to her from a report that a professor had written about Henry. Eventually he discusses his patient’s case with Lila and asks her for her opinion and advice.

Dr. Foster also talks about his patient with the blind chess-master, psychiatrist Dr. Leon Patterson, Henry’s mother and his love interest, Athena. Nothing indicates that Henry has released confidentiality for Sam to question them.

Obviously psychotherapists cannot disclose confidential information to a colleague or girlfriend without the client’s consent. Therapists must also take precautions that confidential information is not being overheard by unauthorized people.

What About Bob?

After one therapy session Bob Wiley follows his psychiatrist, Dr. Leo Marvin, to his lakeside summer home in order to further discuss his problems. There, Bob befriends Marvin’s son, Sigmund, daughter, Anna, and wife, Fay.

Clients’ Disclosure of Confidential Information

Bob continues to talk to his psychiatrist as he leaves the office. Dr. Marvin’s receptionist overhears this.

Clients have the right to talk to whomever they choose about their therapy. Clients are not bound by confidentiality concerns. Clients often discuss private and confidential material with the receptionist and other people associated with their primary caregiver.

Unusual Circumstances

When Bob follows Dr. Marvin to his vacation home, the psychiatrist first tries to protect his patient’s confidentiality by talking to Bob privately. Eventually Marvin has to reveal the identity of his patient to his curious family.

This is a case where the client’s persistent boundary crossing into the therapist’s private life compromised the confidentiality of the clinical relationship. Generally, the codes of ethics do not mandate therapists to protect clients’ confidentiality in extreme situations, such as when clients threaten the therapists. One can easily argue that in Bob’s case, his own actions caused the compromise of the confidentiality rather than the therapist’s.

Involuntary Admission

In order to get rid of his patient, Leo Marvin admits Bob into a mental hospital. He gives the admitting physician, Dr. Catherine Tomsky, misleading information about Bob. Since this is an involuntary admission, it can be assumed that Bob did not sign authorization to release information.

Often therapists who initiate involuntary admission do so without the client’s authorization to disclose confidential information. Clients who are acutely psychotic and/or are in danger to self or others are often uncooperative with treatment. Such disclosures are often legally allowed or mandated and do not require clients’ permission. Such disclosure should include only the minimum necessary information.

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Confidentiality in Psychotherapy: What Films Can Teach Psychotherapists About Confidentiality in Psychotherapy

What Films Can Teach Psychotherapists About Confidentiality in Psychotherapy

By: Ofer Zur, Ph.D. and Birgit Wolz, Ph.D.

Table Of Contents

Good Will Hunting
Grosse Pointe Blank
House of Games
K-Pax
Ordinary People
Prime
Prince of Tides
Stay
What about Bob?

Confidentiality in Psychotherapy

Consulting with experts can help you navigate the ethical and legal complexities of confidentiality and help you assure that you practice within the reasonable standard of care of your profession.

Codes of Ethics on Confidentiality

American Psychological Association’s (APA) Ethical Principles of Psychologists and Code of Conduct

3.07 Third-Party Requests for Services: When psychologists agree to provide services to a person or entity at the request of a third party, psychologists attempt to clarify at the outset of the service the nature of the relationship with all individuals or organizations involved. This clarification includes the role of the psychologist (e.g., therapist, consultant, diagnostician, or expert witness), an identification of who is the client, the probable uses of the services provided or the information obtained, and the fact that there may be limits to confidentiality.
3.10.a. When psychologists conduct research or provide assessment, therapy, counseling, or consulting services in person or via electronic transmission or other forms of communication, they obtain the informed consent of the individual or individuals using language that is reasonably understandable to that person or persons except when conducting such activities without consent is mandated by law or governmental regulation or as otherwise provided in this Ethics Code.
(b) For persons who are legally incapable of giving informed consent, psychologists nevertheless (1) provide an appropriate explanation, (2) seek the individual’s assent, (3) consider such persons’ preferences and best interests, and (4) obtain appropriate permission from a legally authorized person, if such substitute consent is permitted or required by law. When consent by a legally authorized person is not permitted or required by law, psychologists take reasonable steps to protect the individual’s rights and welfare.
(c) When psychological services are court ordered or otherwise mandated, psychologists inform the individual of the nature of the anticipated services, including whether the services are court ordered or mandated and any limits of confidentiality, before proceeding.(d) Psychologists appropriately document written or oral consent, permission, and assent.
4.01 Psychologists have a primary obligation and take reasonable precautions to protect confidential information obtained through or stored in any medium, recognizing that the extent and limits of confidentiality may be regulated by law or established by institutional rules or professional or scientific relationship.
4.02 (a) Psychologists discuss with persons (including, to the extent feasible, persons who are legally incapable of giving informed consent and their legal representatives) and organizations with whom they establish a scientific or professional relationship (1) the relevant limits of confidentiality and (2) the foreseeable uses of the information generated through their psychological activities.
(b) Unless it is not feasible or is contraindicated, the discussion of confidentiality occurs at the outset of the relationship and thereafter as new circumstances may warrant.
(c) Psychologists who offer services, products, or information via electronic transmission inform clients/patients of the risks to privacy and limits of confidentiality.
4.03 Before recording the voices or images of individuals to whom they provide services, psychologists obtain permission from all such persons or their legal representatives.
4.04 (a) Psychologists include in written and oral reports and consultations, only information germane to the purpose for which the communication is made.
(b) Psychologists discuss confidential information obtained in their work only for appropriate scientific or professional purposes and only with persons clearly concerned with such matters.
4.05 (a) Psychologists may disclose confidential information with the appropriate consent of the organizational client, the individual client/patient, or another legally authorized person on behalf of the client/patient unless prohibited by law.
(b) Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose such as to (1) provide needed professional services; (2) obtain appropriate professional consultations; (3) protect the client/patient, psychologist, or others from harm; or (4) obtain payment for services from a client/patient, in which instance disclosure is limited to the minimum that is necessary to achieve the purpose.
4.06 When consulting with colleagues, (1) psychologists do not disclose confidential information that reasonably could lead to the identification of a client/patient, research participant, or other person or organization with whom they have a confidential relationship unless they have obtained the prior consent of the person or organization or the disclosure cannot be avoided, and (2) they disclose information only to the extent necessary to achieve the purposes of the consultation.
4.07 Psychologists do not disclose in their writings, lectures, or other public media, confidential, personally identifiable information concerning their clients/patients, students, research participants, organizational clients, or other recipients of their services that they obtained during the course of their work, unless (1) they take reasonable steps to disguise the person or organization, (2) the person or organization has consented in writing, or (3) there is legal authorization for doing so.
6. (b) If confidential information concerning recipients of psychological services is entered into databases or systems of records available to persons whose access has not been consented to by the recipient, psychologists use coding or other techniques to avoid the inclusion of personal identifiers.
(c) Psychologists make plans in advance to facilitate the appropriate transfer and to protect the confidentiality of records and data in the event of psychologists’ withdrawal from positions or practice.
10.01 (a) When obtaining informed consent to therapy as required in Standard 3.10, Informed Consent, psychologists inform clients/patients as early as is feasible in the therapeutic relationship about the nature and anticipated course of therapy, fees, involvement of third parties, and limits of confidentiality and provide sufficient opportunity for the client/patient to ask questions and receive answers.
10.02 (a) When psychologists agree to provide services to several persons who have a relationship (such as spouses, significant others, or parents and children), they take reasonable steps to clarify at the outset (1) which of the individuals are clients/patients and (2) the relationship the psychologist will have with each person. This clarification includes the psychologist’s role and the probable uses of the services provided or the information obtained.
10.03 When psychologists provide services to several persons in a group setting, they describe at the outset the roles and responsibilities of all parties and the limits of confidentiality.

American Association for Marriage and Family Therapy (AAMFT) Ethics Code, 2015

Standard I RESPONSIBILITY TO CLIENTS

Marriage and family therapists advance the welfare of families and individuals and make reasonable efforts to find the appropriate balance between conflicting goals within the family system.

1.2 Informed Consent.Marriage and family therapists obtain appropriate informed consent to therapy or related procedures and use language that is reasonably understandable to clients. When persons, due to age or mental status, are legally incapable of giving informed consent, marriage and family therapists obtain informed permission from a legally authorized person, if such substitute consent is legally permissible. The content of informed consent may vary depending upon the client and treatment plan; however, informed consent generally necessitates that the client: (a) has the capacity to consent; (b) has been adequately informed of significant information concerning treatment processes and procedures; (c) has been adequately informed of potential risks and benefits of treatments for which generally recognized standards do not yet exist; (d) has freely and without undue influence expressed consent; and (e) has provided consent that is appropriately documented.

1.13 Relationships with Third Parties.Marriage and family therapists, upon agreeing to provide services to a person or entity at the request of a third party, clarify, to the extent feasible and at the outset of the service, the nature of the relationship with each party and the limits of confidentiality.
Standard II CONFIDENTIALITY

Marriage and family therapists have unique confidentiality concerns because the client in a therapeutic relationship may be more than one person. Therapists respect and guard the confidences of each individual client.

2.1 Disclosing Limits of Confidentiality.Marriage and family therapists disclose to clients and other interested parties at the outset of services the nature of confidentiality and possible limitations of the clients’ right to confidentiality. Therapists review with clients the circumstances where confidential information may be requested and where disclosure of confidential information may be legally required. Circumstances may necessitate repeated disclosures.

2.2 Written Authorization to Release Client Information.Marriage and family therapists do not disclose client confidences except by written authorization or waiver, or where mandated or permitted by law. Verbal authorization will not be sufficient except in emergency situations, unless prohibited by law. When providing couple, family or group treatment, the therapist does not disclose information outside the treatment context without a written authorization from each individual competent to execute a waiver. In the context of couple, family or group treatment, the therapist may not reveal any individual’s confidences to others in the client unit without the prior written permission of that individual.

2.3 Client Access to Records.Marriage and family therapists provide clients with reasonable access to records concerning the clients. When providing couple, family, or group treatment, the therapist does not provide access to records without a written authorization from each individual competent to execute a waiver. Marriage and family therapists limit client’s access to their records only in exceptional circumstances when they are concerned, based on compelling evidence, that such access could cause serious harm to the client. The client’s request and the rationale for withholding some or all of the record should be documented in the client’s file. Marriage and family therapists take steps to protect the confidentiality of other individuals identified in client records.

2.4 Confidentiality in Non-Clinical Activities.Marriage and family therapists use client and/or clinical materials in teaching, writing, consulting, research, and public presentations only if a written waiver has been obtained in accordance with Standard 2.2, or when appropriate steps have been taken to protect client identity and confidentiality.

2.5 Protection of Records.Marriage and family therapists store, safeguard, and dispose of client records in ways that maintain confidentiality and in accord with applicable laws and professional standards.

2.6 Preparation for Practice Changes.In preparation for moving a practice, closing a practice, or death, marriage and family therapists arrange for the storage, transfer, or disposal of client records in conformance with applicable laws and in ways that maintain confidentiality and safeguard the welfare of clients.

2.7 Confidentiality in Consultations.Marriage and family therapists, when consulting with colleagues or referral sources, do not share confidential information that could reasonably lead to the identification of a client, research participant, supervisee, or other person with whom they have a confidential relationship unless they have obtained the prior written consent of the client, research participant, supervisee, or other person with whom they have a confidential relationship. Information may be shared only to the extent necessary to achieve the purposes of the consultation.
Standard III PROFESSIONAL COMPETENCE AND INTEGRITY

Marriage and family therapists maintain high standards of professional competence and integrity.

3.2 Knowledge of Regulatory Standards.Marriage and family therapists pursue appropriate consultation and training to ensure adequate knowledge of and adherence to applicable laws, ethics, and professional standards.

3.4 Conflicts of Interest.Marriage and family therapists do not provide services that create a conflict of interest that may impair work performance or clinical judgment.

3.11 Public Statements.Marriage and family therapists, because of their ability to influence and alter the lives of others, exercise special care when making public their professional recommendations and opinions through testimony or other public statements.
Standard IV RESPONSIBILITY TO STUDENTS AND SUPERVISEES

Marriage and family therapists do not exploit the trust and dependency of students and supervisees.

4.7 Confidentiality with Supervisees. Marriage and family therapists do not disclose supervisee confidences except by written authorization or waiver, or when mandated or permitted by law. In educational or training settings where there are multiple supervisors, disclosures are permitted only to other professional colleagues, administrators, or employers who share responsibility for training of the supervisee. Verbal authorization will not be sufficient except in emergency situations, unless prohibited by law.
Standard V RESEARCH AND PUBLICATION

Marriage and family therapists respect the dignity and protect the welfare of research participants, and are aware of applicable laws, regulations, and professional standards governing the conduct of research.

5. 3 Informed Consent to Research.Marriage and family therapists inform participants about the purpose of the research, expected length, and research procedures. They also inform participants of the aspects of the research that might reasonably be expected to influence willingness to participate such as potential risks, discomforts, or adverse effects. Marriage and family therapists are especially sensitive to the possibility of diminished consent when participants are also receiving clinical services, or have impairments which limit understanding and/or communication, or when participants are children. Marriage and family therapists inform participants about any potential research benefits, the limits of confidentiality, and whom to contact concerning questions about the research and their rights as research participants.

5.5 Confidentiality of Research Data.Information obtained about a research participant during the course of an investigation is confidential unless there is a waiver previously obtained in writing. When the possibility exists that others, including family members, may obtain access to such information, this possibility, together with the plan for protecting confidentiality, is explained as part of the procedure for obtaining informed consent.
Standard VITECHNOLOGY-ASSISTED PROFESSIONAL SERVICES

Therapy, supervision, and other professional services engaged in by marriage and family therapists take place over an increasing number of technological platforms. There are great benefits and responsibilities inherent in both the traditional therapeutic and supervision contexts, as well as in the utilization of technologically-assisted professional services. This standard addresses basic ethical requirements of offering therapy, supervision, and related professional services using electronic means.

6.3 Confidentiality and Professional Responsibilities.It is the therapist’s or supervisor’s responsibility to choose technological platforms that adhere to standards of best practices related to confidentiality and quality of services, and that meet applicable laws. Clients and supervisees are to be made aware in writing of the limitations and protections offered by the therapist’s or supervisor’s technology.

6.4 Technology and Documentation.Therapists and supervisors are to ensure that all documentation containing identifying or otherwise sensitive information which is electronically stored and/or transferred is done using technology that adhere to standards of best practices related to confidentiality and quality of services, and that meet applicable laws. Clients and supervisees are to be made aware in writing of the limitations and protections offered by the therapist’s or supervisor’s technology.
Standard VII PROFESSIONAL EVALUATIONS

Marriage and family therapists aspire to the highest of standards in providing testimony in various contexts within the legal system.

7.5 Avoiding Conflicts.Clear distinctions are made between therapy and evaluations. Marriage and family therapists avoid conflict in roles in legal proceedings wherever possible and disclose potential conflicts. As therapy begins, marriage and family therapists clarify roles and the extent of confidentiality when legal systems are involved.
Standard VIII FINANCIAL ARRANGEMENTS

Marriage and family therapists make financial arrangements with clients, third-party payors, and supervisees that are reasonably understandable and conform to accepted professional practices.

8.3 Notice of Payment Recovery Procedures.Marriage and family therapists give reasonable notice to clients with unpaid balances of their intent to seek collection by agency or legal recourse. When such action is taken, therapists will not disclose clinical information.

American Counseling Association (ACA) Code of Ethics and Standards of Practice, Effective 2014

A.2. Informed Consent in the Counseling Relationship
A.2.b. Types of Information Needed. Counselors explicitly explain to clients the nature of all services provided. They inform clients about issues such as, but not limited to, the following: the purposes, goals, techniques, procedures, limitations, potential risks, and benefits of services; the counselor’s qualifications, credentials, relevant experience, and approach to counseling; continuation of services upon the incapacitation or death of the counselor; the role of technology; and other pertinent information. Counselors take steps to ensure that clients understand the implications of diagnosis and the intended use of tests and reports. Additionally, counselors inform clients about fees and billing arrangements, including procedures for nonpayment of fees. Clients have the right to confidentiality and to be provided with an explanation of its limits (including how supervisors and/or treatment or interdisciplinary team professionals are involved), to obtain clear information about their records, to participate in the ongoing counseling plans, and to refuse any services or modality changes and to be advised of the consequences of such refusal.
B.1.b. Respect for Privacy. Counselors respect the privacy of prospective and current clients. Counselors request private information from clients only when it is beneficial to the counseling process.
B.2. Exceptions.
B.2.a. Serious and Foreseeable Harm and Legal Requirements. The general requirement that counselors keep information confidential does not apply when disclosure is required to protect clients or identified others from serious and foreseeable harm or when legal requirements demand that confidential information must be revealed. Counselors consult with other professionals when in doubt as to the validity of an exception. Additional considerations apply when addressing end-of-life issues.
B.2.c. Contagious, Life-Threatening Diseases. When clients disclose that they have a disease commonly known to be both communicable and life threatening, counselors may be justified in disclosing information to identifiable third parties, if the parties are known to be at serious and foreseeable risk of contracting the disease. Prior to making a disclosure, counselors assess the intent of clients to inform the third parties about their disease or to engage in any behaviors that may be harmful to an identifiable third party. Counselors adhere to relevant state laws concerning disclosure about disease status.
B.2.d. Court-Ordered Disclosure. When ordered by a court to release confidential or privileged information without a client’s permission, counselors seek to obtain written, informed consent from the client or take steps to prohibit the disclosure or have it limited as narrowly as possible because of potential harm to the client or counseling relationship.
B.2.e. Minimal Disclosure. To the extent possible, clients are informed before confidential information is disclosed and are involved in the disclosure decision-making process. When circumstances require the disclosure of confidential information, only essential information is revealed.
B.3. Information Shared With Others
B.3.a. Subordinates. Counselors make every effort to ensure that privacy and confidentiality of clients are maintained by subordinates, including employees, supervisees, students, clerical assistants, and volunteers.
B.3.b. Interdisciplinary Teams. When services provided to the client involve participation by an interdisciplinary or treatment team, the client will be informed of the team’s existence and composition, information being shared, and the purposes of sharing such information.
B.4.b. Couples and Family Counseling. In couples and family counseling, counselors clearly define who is considered “the client” and discuss expectations and limitations of confidentiality. Counselors seek agreement and document in writing such agreement among all involved parties regarding the confidentiality of information. In the absence of an agreement to the contrary, the couple or family is considered to be the client.
B.5.b. Responsibility to Parents and Legal Guardians. Counselors inform parents and legal guardians about the role of counselors and the confidential nature of the counseling relationship, consistent with current legal and custodial arrangements. Counselors are sensitive to the cultural diversity of families and respect the inherent rights and responsibilities of parents/guardians regarding the welfare of their children/charges according to law. Counselors work to establish, as appropriate, collaborative relationships with parents/guardians to best serve clients.
B.6. Records and Documentation
B.6.a. Creating and Maintaining Records and Documentation. Counselors create and maintain recordsand documentation necessary for rendering professional services.
B.6.b. Confidentiality of Records and Documentation. Counselors ensure that records and documentation kept in any medium are secure and that only authorized persons have access to them.
B.6.c. Permission to Record. Counselors obtain permission from clients prior to recording sessions through electronic or other means.
B.6.d. Permission to Observe. Counselors obtain permission from clients prior to allowing any person to observe counseling sessions, review session transcripts, or view recordings of sessions with supervisors, faculty, peers, or others within the training environment.
B.6.e. Client Access. Counselors provide reasonable access to records and copies of records when requested by competent clients. Counselors limit the access of clients to their records, or portions of their records, only when there is compelling evidence that such access would cause harm to the client. Counselors document the request of clients and the rationale for withholding some or all of the records in the files of clients. In situations involving multiple clients, counselors provide individual clients with only those parts of records that relate directly to them and do not include confidential information related to any other client.
B.6.f. Assistance With Records. When clients request access to their records, counselors provide assistance and consultation in interpreting counseling records.
B.6.g. Disclosure or Transfer. Unless exceptions to confidentiality exist, counselors obtain written permission from clients to disclose or transfer records to legitimate third parties. Steps are taken to ensure that receivers of counseling records are sensitive to their confidential nature.
B.7.a. Respect for Privacy. Information shared in a consulting relationship is discussed for professional purposes only. Written and oral reports present only data germane to the purposes of the consultation, and every effort is made to protect client identity and to avoid undue invasion of privacy.

California Association of Marriage and Family Therapists (CAMFT)

1.4 Marriage and family therapists respect the right of patients to make decisions and help them to understand the consequences of these decisions. Marriage and family therapists provide adequate information to patients so that patients can make meaningful decisions about their therapy.
1.4.4 Marriage and family therapists obtain written informed consent from clients before videotaping, audio recording, or permitting third party observation.
1.4.5 Marriage and family therapists are encouraged to inform patients as to the limits of confidentiality.
1.4.7 When therapy occurs by electronic means, marriage and family therapists inform patients of the potential risks and benefits, including but not limited to, issues of confidentiality, clinical limitations, transmission difficulties, and ability to respond to emergencies.
1.10 Marriage and family therapists, when treating a family unit(s), shall carefully consider the potential conflict that may arise between the family unit(s) and each individual. Marriage and family therapists clarify at the commencement of therapy which person or persons are clients and the nature of the relationship(s) the therapist will have with each person involved in the treatment.
2.1 Marriage and family therapists do not disclose patient confidences, including the names or identities of their patients, to anyone except a) as mandated by law b) as permitted by law c) when the marriage and family therapist is a defendant in a civil, criminal or disciplinary action arising from the therapy (in which case patient confidences may only be disclosed in the course of that action), or d) if there is an authorization previously obtained in writing, and then such information may only be revealed in accordance with the terms of the authorization.
2.2 When there is a request for information related to any aspect of psychotherapy or treatment, each member of the unit receiving such therapeutic treatment must sign an authorization before a marriage and family therapist will disclose information received from any member of the treatment unit.
2.3 Marriage and family therapists are aware of the possible adverse effects of technological changes with respect to the dissemination of patient information, and take reasonable care when disclosing such information. Marriage and family therapists are also aware of the limitations regarding confidential transmission by Internet or electronic media and take extra care when transmitting or receiving such information via these mediums.
2.4 Marriage and family therapists store, transfer, transmit, and/or dispose of patient records in ways that protect confidentiality.
2.5 Marriage and family therapists take appropriate steps to ensure, insofar as possible, that the confidentiality of patients is maintained by their employees, supervisees, assistants and volunteers.
2.6 Marriage and family therapists use clinical materials in teaching, writing, and public presentations only if a written authorization has been previously obtained in accordance with 2.1 d, or when appropriate steps have been taken to protect patient identity.
2.7 Marriage and family therapists, when working with a group, explain to the group the importance of maintaining confidentiality, and are encouraged to obtain agreement from group participants to respect the confidentiality of other members of the group.
3.3 Marriage and family therapists maintain patient records, whether written, taped, computerized, or stored in any other medium, consistent with sound clinical practice
6.4 Information obtained about a research participant during the course of an investigation is confidential unless there is an authorization previously obtained in writing. When the possibility exists that others, including family members, may obtain access to such information, this possibility, together with the plan for protecting confidentiality, is explained as part of the procedure for obtaining informed consent.

National Association of Social Workers (NASW) Code of Ethics (2017)

1.03 (a) Social workers should provide services to clients only in the context of a professional relationship based, when appropriate, on valid informed consent. Social workers should use clear and understandable language to inform clients of the purpose of the services, risks related to the services, limits to services because of the requirements of a third-party payer, relevant costs, reasonable alternatives, clients’ right to refuse or withdraw consent, and the time frame covered by the consent. Social workers should provide clients with an opportunity to ask questions.
(e) Social workers who provide services via electronic media (such as computer, telephone, radio, and television) should inform recipients of the limitations and risks associated with such services.
(f) Social workers should obtain clients’ informed consent before audio taping or video taping clients or permitting observation of services to clients by a third party.
1.07 (a) Social workers should respect clients’ right to privacy. Social workers should not solicit private information from clients unless it is essential to providing services or conducting social work evaluation or research. Once private information is shared, standards of confidentiality apply.
(b) Social workers may disclose confidential information when appropriate with valid consent from a client or a person legally authorized to consent on behalf of a client.
(c) Social workers should protect the confidentiality of all information obtained in the course of professional service, except for compelling professional reasons. The general expectation that social workers will keep information confidential does not apply when disclosure is necessary to prevent serious, foreseeable, and imminent harm to a client or other identifiable person. In all instances, social workers should disclose the least amount of confidential information necessary to achieve the desired purpose; only information that is directly relevant to the purpose for which the disclosure is made should be revealed.
(d) Social workers should inform clients, to the extent possible, about the disclosure of confidential information and the potential consequences, when feasible before the disclosure is made. This applies whether social workers disclose confidential information on the basis of a legal requirement or client consent.
(e) Social workers should discuss with clients and other interested parties the nature of confidentiality and limitations of clients’ right to confidentiality. Social workers should review with clients the circumstances where confidential information may be requested and where disclosure of confidential information may be legally required. This discussion should occur as soon as possible in the social worker-client relationship and as needed throughout the course of the relationship.
(f) When social workers provide counseling services to families, couples, or groups, social workers should seek agreement among the parties involved concerning each individual’s right to confidentiality and obligation to preserve the confidentiality of information shared by others. Social workers should inform participants in family, couples, or group counseling that social workers cannot guarantee that all participants will honor such agreements.
(g) Social workers should inform clients involved in family, couples, marital, or group counseling of the social worker’s, employer’s, and agency’s policy concerning the social worker’s disclosure of confidential information among the parties involved in the counseling.
(h) Social workers should not disclose confidential information to third-party payers unless clients have authorized such disclosure.
(i) Social workers should not discuss confidential information in any setting unless privacy can be ensured. Social workers should not discuss confidential information in public or semipublic areas such as hallways, waiting rooms, elevators, and restaurants.
(j) Social workers should protect the confidentiality of clients during legal proceedings to the extent permitted by law. When a court of law or other legally authorized body orders social workers to disclose confidential or privileged information without a client’s consent and such disclosure could cause harm to the client, social workers should request that the court withdraw the order or limit the order as narrowly as possible or maintain the records under seal, unavailable for public inspection.
(k) Social workers should protect the confidentiality of clients when responding to requests from members of the media.
(l) Social workers should protect the confidentiality of clients’ written and electronic records and other sensitive information. Social workers should take reasonable steps to ensure that clients’ records are stored in a secure location and that clients’ records are not available to others who are not authorized to have access.
(m) Social workers should take precautions to ensure and maintain the confidentiality of information transmitted to other parties through the use of computers, electronic mail, facsimile machines, telephones and telephone answering machines, and other electronic or computer technology. Disclosure of identifying information should be avoided whenever possible.
(n) Social workers should transfer or dispose of clients’ records in a manner that protects clients’ confidentiality and is consistent with state statutes governing records and social work licensure.
(o) Social workers should take reasonable precautions to protect client confidentiality in the event of the social worker’s termination of practice, incapacitation, or death.
(p) Social workers should not disclose identifying information when discussing clients for teaching or training purposes unless the client has consented to disclosure of confidential information.
(q) Social workers should not disclose identifying information when discussing clients with consultants unless the client has consented to disclosure of confidential information or there is a compelling need for such disclosure.
(r) Social workers should protect the confidentiality of deceased clients consistent with the preceding standards.
1.08 (a) Social workers should provide clients with reasonable access to records concerning the clients. Social workers who are concerned that clients’ access to their records could cause serious misunderstanding or harm to the client should provide assistance in interpreting the records and consultation with the client regarding the records. Social workers should limit clients’ access to their records, or portions of their records, only in exceptional circumstances when there is compelling evidence that such access would cause serious harm to the client. Both clients’ requests and the rationale for withholding some or all of the record should be documented in clients’ files.
(b) When providing clients with access to their records, social workers should take steps to protect the confidentiality of other individuals identified or discussed in such records.
2.02 Social workers should respect confidential information shared by colleagues in the course of their professional relationships and transactions. Social workers should ensure that such colleagues understand social workers’ obligation to respect confidentiality and any exceptions related to it.
2.05 When consulting with colleagues about clients, social workers should disclose the least amount of information necessary to achieve the purposes of the consultation.
3.04 (a) Social workers should take reasonable steps to ensure that documentation in records is accurate and reflects the services provided.
(b) Social workers should include sufficient and timely documentation in records to facilitate the delivery of services and to ensure continuity of services provided to clients in the future.
(c) Social workers’ documentation should protect clients’ privacy to the extent that is possible and appropriate and should include only information that is directly relevant to the delivery of services.
(d) Social workers should store records following the termination of services to ensure reasonable future access. Records should be maintained for the number of years required by state statutes or relevant contracts.

Summary of Codes of Ethics on Confidentiality

Addendum for California Therapists and CA Law on Confidentiality

For details about California law as it pertains to confidentiality, please go to: https://www.zurinstitute.com/online/confidentiality_calaw.html

Confidentiality Online Resources

Ethics Codes On Confidentiality In Psychotherapy and Counseling

Intersection of Law, Psychotherapy and Confidentiality

A Guide to Psychology and Its Practice: Confidentiality

Does Confidentiality Exist?

Confidentiality: Limits or limitations?

Confidentiality and the Ethical Treatment of Minors: Ethical, Legal, and Clinical Issues

Confidentiality in the Treatment of Adolescents

The Technical and Legal Implications of Jaffe v. Redmond and the HIPAA Privacy Rule for Psychotherapy and General Psychiatry

Confidentiality In the Movies

For a description of the movies, click here.

Antwone Fisher

Antwone Fisher, an African-American in the U.S. Navy, has trouble with his anger. An African-American psychiatrist, Dr. Jerome Davenport, helps him work through his extensive childhood trauma.

Confidentiality in a military environment

Antwone is ordered to see superior officer Davenport, a Navy psychiatrist, at an outpatient clinic at a U.S. naval base to be evaluated and screened for psychological issues that might impair service and to provide brief therapy. When Antwone skips his second session, the psychiatrist has officers escort him to the appointment the following week.

Sharing confidential information with a spouse

Dr. Davenport tells his wife details that Antwone had told him during their sessions.

Basic Instinct

Disclosing confidential information in police setting

Catherine may be a killer and yet Nick Curran is mesmerized – attracted by her sensuous magnetism. While he questions her, she tells him information about himself that she only knows because she paid the corrupt police officer, Lt. Marty Nilsen, to give her access to the therapy notes about Curran. Curran is furious about the therapist’s betrayal, lets himself into Garner’s apartment with the key that she had given him during their romance, and confronts her. She admits that she gave a copy of her clinical notes to Lt. Nilsen. This officer had blackmailed her by threatening to let Internal Affairs know about her sexual affair with her client. Garner believed that such a revelation would hurt Curran because her evaluation of him would have been considered as not being objective. With this explanation Beth tries to convince Curran that she released her notes to Nilsen in order to help him.

Bliss

Unsecured Office

Because the therapist leaves a window open, Joseph and his colleagues can observe Baltazar’s sexual activities with his female clients with a telescope from a construction site.

Protecting Confidentiality while Discussing Cases

Baltazar talks to Joseph about Maria and the clinical histories of other clients during his visits. Although he doesn’t mention the names of his other clients, their stories can potentially reveal their identities.

Therapists-Clients’ Discussions in Public Places

Toward the later part of the movie Joseph finds Baltazar at his garage. They talk about his disappointment that Maria asked him to move out.

Confidentiality in Couple and Individual Therapy

Joseph tells Baltazar that he wants to heal his wife. The therapist first declines but then agrees to see Joseph as a client. He emphasizes, “I will be helping you”. When Joseph asks him to not see Maria any more, Baltazar responds, “If I teach you the ways of love, it would not be my place to see Maria.”

Dressed to Kill

Careless or Negligent Disclosure of Information

Dr. Elliott completes a phone call with another patient as Kate walks into the office. She can hear everything he says.

Detective Marino asks Elliott whether one of his other patients might be disturbed enough to be considered a potential killer. He threatens to confiscate his patient records when the psychiatrist expresses concerns about his patients’ confidentiality. To help the police the prostitute, Liz Blake, searches through Elliott’s patient’s records after seducing him. He jeopardizes his patients’ confidentiality by leaving Liz alone in the part of his office where he keeps his patient records.

Disclosing Information Regarding Deceased Patient

The psychiatrist gets a call from the police saying that a patient of his was murdered. During his subsequent interview at the police station, Elliott is first hesitant but soon reveals details about Kate’s therapy.

After several unsuccessful attempts to get hold of Bobbi, Elliott visits Dr. Levy. The psychiatrists talk about their patient and don’t seem to be concerned about protecting Bobbi’s confidentiality.

Confidential Records of Deceased Client

After Kate’s murder the psychiatrist fears that an ex-patient, Bobbi, may be the killer, because he stole a razor from the psychiatrist’s office. Bobbi first leaves a mysterious message on Dr. Elliott’s answering machine stating that he will soon get a sex change operation that was not approved by Dr. Elliott. Bobbi is a man who wants to become a woman. The ex-patient also states that a Dr. Levy approved the operation, that “some blond bitch saw me borrowing the razor,” and that Bobbi wants to “get her.” Subsequent threatening messages make his ex-patient appear even more suspicious to the psychiatrist.

Girl, Interrupted

Disclosure of Confidential Information Regarding a Hospitalized Adult Patient

In a family session at Claymoore Susanna learns from her father that Dr. Melvin Potts had told her parents on the phone that she suffers from Borderline Personality Disorder. Because the psychiatrist thinks that this knowledge can affect Susanna’s recovery, Potts suggests to the parents that they talk about his patient’s condition on their way out, but Susanna insists that the psychiatrist explain her diagnosis to her. He reluctantly gives in to her demand and adds, “It’s not uncommon, especially among young women.”

Confidentiality in Hospital Outing

Susanna, Lisa and several other girls go with a couple of nurses to an ice cream parlor. In the store Susanna is unsuccessful in trying to hide from Mrs. Gilcrest and her daughter, Bonnie. Susanna had a sexual affair with her teacher, Professor Gilcrest, who seduced her during her school years. When Mrs. Gilcrest discovers Susanna, she insults her, “I know everything about you. I hope that they’ll put you away forever.”

Good Will Hunting

Discussing Confidential Information with Other Therapists

Lambeau introduces Will to different therapists. One of them tries to hypnotize the young man while Lambeau and his colleague are watching the therapeutic process.

Discussing Confidential Information with the Referring Therapist

During their entire third session neither therapist nor client say anything. Afterwards, McGuire talks about their silence to professor Lambeau. He explains that his client might need to prove to him that he doesn’t need to talk if he doesn’t want to, and that it is not therapeutically appropriate for McGuire to start talking first.

When Will’s therapy progresses, Lambeau checks in with McGuire several times about his client’s progress. He even suggests that the therapy take a different direction. They should focus more on Will’s future than his past. The therapist expresses his reluctance because he thinks, “he is not ready for that,” and argues with Lambeau about his therapeutic approach. In one scene Will overhears an intense, loud and angry discussion between McGuire and Lambeau about the goal of the young man’s therapy.

Grosse Pointe Blank

A psychiatrist, Dr. Oatman, is alarmed to learn that his patient, Martin, is a hit man.

Confidentiality Issues and Tarasoff

Dr. Oatman says that he would have to tell the authorities if Martin committed a crime or thought about committing a crime.

House of Games

Unauthorized Disclosure of Confidential information

Convinced that desperate action is required, Margaret plunges into a shady nighttime world of con men and bunko artists. She goes to a poolroom called the House of Games, a bar where she wants to talk to the gambler, Mike, who has terrorized her patient over his debt. Margaret meets Mike and asks him to leave Billy alone.

K-Pax

Protecting Confidentiality while Discussing Cases

At a party Powell tells an astronomer friend, Steve Becker, in front of the other guests that he has a patient who claims that he comes from the planet K-Pax. The psychiatrist says, “If I can prove to him that this K-Pax is just a figment of his imagination, maybe I can find out who he really is. His friend responds, “I can give you a whole list of questions to ask your fellow.”

Therapist and Client Meeting Jointly with Other People

The psychiatrist passes Steve’s astronomical questions on to Prot, who answers in detail as if he were an astrophysicist. Both Mark and his friend are amazed about Prot’s answers. Steve expresses that he “sure wants to meet this fellow of yours.” Subsequently, Mark Powell takes Prot to a planetarium, where they meet Becker and three other astronomers. The patient demonstrates his astronomical knowledge by describing the intricate orbit of his planet to these scientists who have just discovered it.

Recorded Sessions

At his home office Mark Powell plays a recording of a session with Prot while the door to the living room is open. Family members might be able to overhear what the patient said to his psychiatrist. Later Powell plays another tape with a recording from a session with Prot to his wife and tells her that his patient wants to leave and return to K-Pax at a certain date and time.

Ordinary People

Confidentiality in Therapy with Minors and their Family Members

Dr. Berger meets with Conrad’s father, Calvin, for three reasons: in order to inform him about his assessment of his 15-year-old client, to discuss the dynamics of Jared’s family and to give Calvin advice.

Prime

Confidentiality in Consultations

After Dr. Metzger finds out about the intimate aspects of her client and son’s relationship, she shares her concerns with her own therapist. Dr. Metzger wants to know whether she should continue treating Rafi. In one session her own therapist tells Dr. Metzger that her primary job is treating her client: “That is your ethical boundary.” The therapist reasons that the couple might break up after a few weeks of courtship. In that case a termination of therapy might be damaging for Rafi. Now Lisa Metzger gets upset about this conflict and cries. She expresses even more doubts in a later session saying, “I am confused about my part in this.” But her therapist reassures Lisa that she did ok.

Incidental Encounters and Confidentiality

Dr. Metzger compromises her client’s confidentiality after she suddenly pulls her husband behind a bed trying to avoid being seen by Rafi and David. Because her husband wants to know what is going on, she discloses the nature of her relationship with Rafi.

Disclosing Confidential Information

When Dr. Metzger tells her son that she knows about his romance and that Rafi is her client, she also discloses some of the content of their therapy sessions with David.

Prince of Tides

Tom, an unemployed, aimless ex-high school football coach from the South meets his sister’s psychiatrist, Dr. Susan Lowenstein, who wants him to shed light on their family life.

Therapeutic Relationships and Confidentiality

Tom discusses in detail his and his sister’s family background with Dr. Lowenstein. The therapist gives him feedback and tells him her assessment of his sister and their family of origin issues.

Stay

Confidentiality when Patient is Dangerous to Self

When Henry tells Foster that he is going to kill himself, the psychiatrist responds, “How seriously should I take that? … If you are serious, I have to report it.” Later during this dialog, the psychiatrist continues, “Let’s talk about this next time.”

Confidentiality in Out-of-Office Encounters

Confidentiality is not guarantied when Dr. Foster and Henry talk to each other outside the therapy office. At one point the psychiatrist follows his patient to a lecture hall and talks to him in the hallway while other students pass by.

Disclosing Confidential Information

Dr. Foster breaks the confidentiality of his patient numerous times in his interactions with his girlfriend, Lila. First he leaves messages about Henry on his colleague, Dr. Levy’s, answering machine while his girlfriend is in the same room. Later Dr. Foster reads to her from a report that a professor had written about Henry. Eventually he discusses his patient’s case with Lila and asks her for her opinion and advice.

Dr. Foster also talks about his patient with the blind chess-master, psychiatrist Dr. Leon Patterson, Henry’s mother and his love interest, Athena. Nothing indicates that Henry has released confidentiality for Sam to question them.

What About Bob?

Clients’ Disclosure of Confidential Information

Bob continues to talk to his psychiatrist as he leaves the office. Dr. Marvin’s receptionist overhears this.

Unusual Circumstances

When Bob follows Dr. Marvin to his vacation home, the psychiatrist first tries to protect his patient’s confidentiality by talking to Bob privately. Eventually Marvin has to reveal the identity of his patient to his curious family.

Involuntary Admission

In order to get rid of his patient, Leo Marvin admits Bob into a mental hospital. He gives the admitting physician, Dr. Catherine Tomsky, misleading information about Bob. Since this is an involuntary admission, it can be assumed that Bob did not sign authorization to release information.

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