Confidentiality
The law and industry standards serve to protect the relationship between a client and a therapist/counselor, and information cannot be disclosed without written permission. However, as in most professions, there are exceptions to that rule.
What are the Exceptions to Confidentiality?
Confidentiality is not absolute and there are circumstances in which information can or must be released. Exceptions vary, depending on the law, the industry, and profession.
The following are examples of exceptions that may apply to the mental health profession:
- If your therapist or counselor is subpoenaed and ordered to testify in a court of law and his/her objections are overruled. This happens in very few instances, but are possible.
- Typically, a therapist may be subpoenaed in legal proceedings involving child custody lawsuits, in which services you received are considered to be evidence in a court of law, or charges involving certain types of criminal behavior against a minor.
- If you request that your therapist or counselor communicate with someone regarding your care. You will normally be asked to sign a "Release of Information" and to specify what can be communicated and for how long the release is to remain in effect.
- If your therapist or counselor suspects or acquires knowledge that abuse or harm has occurred to a child, elderly person, or other individuals whose capacity for self-protection is diminished. This would involve situations where, as a mandatory reporter, the therapist would be required to report information to the proper authorities.
- If your therapist or counselor believes that you are dangerous to yourself, other persons, or both yourself and others. The therapist, by ethical standards and the law, has a "duty to warn" and is required to take necessary steps to protect you and alert authorities regarding danger to others. The therapist may only release information that is necessary to protect or insure your health and safety. Access this link, for a summary of "duty to warn." http://www.ncrel.org/sdrs/areas/issues/envrnmnt/css/cs3lk1.htm
- If during a medical emergency your therapist or counselor needs to reveal information that is necessary to protect or ensure your health and safety. Therapists may only release that information necessary to protect or ensure your health and safety.
- If you are a minor or a minor that is not emancipated. A therapist or counselor may be required to advise or involve your parents or guardian in your treatment. There are circumstances in which a therapist is not required to notify the parents of a minor. For all children below age 18, parents have the right to request and receive information about their child’s mental health, diagnosis, treatment needs, and services provided.
- If your therapist or counselor must take action to collect a debt incurred for services. your name and the amount of your debt may be revealed to a collection agent.
If you have questions, concerns, or confusion regarding your rights to confidentiality or potential exceptions, you are encouraged to discuss this with your therapist or counselor. Your therapist should provide you with a written statement, regarding policy and the law, pertaining to his/her specific practice and profession. Licensed Counselors and Social Workers are required by state law to provide a comprehensive statement of their services and policies. We have conveniently listed those items on this site.
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More on Duty to Warn, as it Pertains to SC
I. Common Law Negligence
South Carolina law does not recognize a general duty to warn of the dangerous propensities of others. Bishop v. South Carolina Dep’t of Mental Health , 331 S.C. 79, 86, 502 S.E.2d 78, 81 (1998). “However, when a therapist/counselor has the ability to monitor, supervise, and control an individual’s conduct, a special relationship exists between the therapist and the individual, and the therapist may have a common law duty to warn potential victims of the individual’s dangerous conduct.” Id. “This duty to warn arises when the individual has made a specific threat of harm directed at a specific individual .” Id. (emphasis added).
The South Carolina Supreme Court relied upon Tarasoff v. Regents of Univ. of California, 551 P.2d 334 (1976), in reaching its conclusions in Bishop . Specifically, the court quoted the following language explicating the duty:
When a therapist determines, or pursuant to the standards of his/her profession should determine, that his/her client presents a serious danger of violence to another, he/she incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus, it may call for him/her to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.
Tarasoff , 551 P.2d at 340. Citing several cases relying on Tarasoff , the court in Bishop enounced: “this duty [to warn] is only owed when a client specifically threatens a readily identifiable third party” and reiterated that the duty requires “the defendant be aware or should have been aware of the specific threat made by the patient to harm a specific person.” Bishop , 331 S.C. at 87-88, 502 S.E.2d at 82. http://www.sccourts.org/opinions/displayOpinion.cfm?caseNo=3879