Confidentiality & Privilege
Psychotherapists have confidential relationships with their clients. “Confidential relationships” are ones where the professional is ethically and/or legally bound to keep privileged information shared by their client with them in the therapeutic relationship private. There are limitations to those obligations.
When someone tries to access a therapist’s records in order to use them in a court case, it might be appropriate for the therapist to assert “privilege” in order to continue protecting their client’s confidentiality. Privilege is related to the confidential nature of the relationship between the therapist and the client; but “privilege” and “confidentiality” are not synonymous terms.
“Confidentiality” relates to the responsibility of certain professionals, like therapists, to keep client information private. The ethical codes of social workers, psychologists, counselors, marriage and family therapists and psychiatrists, for instance, all define the therapist’s obligation to client confidentiality. Federal and state law also defines the therapist’s obligation to client confidentiality. But law and ethics on client confidentiality also have limits.
Learn more about the basics of professional ethics in the blog post here.
“Privilege” relates to the obligation of certain people (usually professionals) to protect certain information from being introduced during a legal or court proceeding. The protection provided by privilege derives from a confidential relationship. The protection of privilege can only be asserted in relation to a legal proceeding.
There are 5 commonly recognized “privileges”:
Marital privilege, and
Therapist-client privilege
Therapist-Client Privilege
The United States Supreme Court in the case of Jaffee v. Redmond determined that all federal courts should recognize a “therapist-client privilege”, though even that privilege has limits.
In Jaffe v. Redmond, a therapist asserted privilege to deny access to the records of a client. Even when the trial court refused to recognize “therapist-client privilege” the therapist refused to hand over any records, or answer any questions during compelled testimony. The therapist’s client appealed the trial court’s denial to recognize therapist-client privilege, and ultimately won at the highest level, the United States Supreme Court.
Limits to Therapist-Client Privilege
Limited to Confidences Shared in “therapy”: In the Jaffee v. Redmond decision, the United States Supreme Court made it clear that therapist-client privilege applies to all different kinds of mental and behavioral professionals, as long as they are providing psychotherapeutic services to their clients in legal and ethical ways. Some state courts provide a larger protection of privilege.
Client Release: If the client WANTS the therapist to share records or testify, then the client essentially releases the privilege. In these situations, the therapist should ensure that the client understands what information would be shared if the “release” were to go into effect. It is recommended that the therapist require the client to sign a written release that outlines their understanding of what will be shared with the court.
Mandated Reporting: Privilege does not preclude a mandated reporter in any confidential relationship from legally and ethically making a report to child protective services (CPS). However, mandated reporters in a confidential relationship with a client should only make reports to CPS when they are required. For support on making this determination, check out our mandated reporting guide, and other blog posts.
“Best Interests”: Judges can “pierce” privilege, and require a therapist to provide documentation or testimony of a confidential nature, but only in certain circumstances. For instance, a judge might pierce privilege of a treating therapist in a child maltreatment or custody proceeding. In those cases, the judge is required to make a judgment based on the “best interests of the child”. If the judge determines that the therapy records are necessary to make such a determination, they would require the submission of some records or testimony. In those circumstances, the therapist should do whatever they can to limit the amount of confidential information shared with the court.
Safeguarding Client Confidentiality: Asserting Therapist Privilege
If an attorney or judge asks or demands that a therapist disclose client confidential information that was obtained through psychotherapeutic service, the therapist should simply respond verbally, and in writing where practicable, that they refuse to share the information in recognition of therapist-client privilege. The therapist can provide citations to their applicable professional code of ethics:
Social Workers NASW Code of Ethics 1.07(j)
Psychologists APA Ethical Principles 4.05(b)
Marriage and Family Therapists AAMFT Code of Ethics 2.2
Counselors ACA Code of Ethics B.2.d
Psychiatrists APA Principles of Medical Ethics 4.9
You can learn more about why professions have ethics in the blog post here.
If a judge insists that the therapist share information due to the “best interests” standard, the therapist should demand a written decision from the judge clarifying that they have essentially “pierced” the therapist’s privilege for a specific purpose. The therapist should then insist that only records and testimony necessary to meet a specific legal purpose be shared with the court.
For more information on interpreting ethics as a mental and behavioral health professional, read the blog post here.