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      Doctor-Patient Privilege | When to Breach Confidentiality

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      While the therapist-client privilege is the legally binding assurance between provider and patient, confidentiality is the ethical bond of trust. It’s this personal confidence that builds and keeps their therapeutic relationship leading to progress. When is it the practitioner’s obligation to break it? 

      What Encompasses Patient Confidentiality 

      Confidentiality within the behavioral health context requires practitioners and their practice’s administration to protect their client's privacy. The focus is to protect what’s disclosed during encounters. This privacy is enacted through both ethical codes and privacy laws. The American Psychological Association (APA) states that psychologists have a primary obligation to protect a client's confidential counseling and medical information within the law. This includes patient material obtained or stored in any medium.  

      The National Association of Social Workers (NASW) Code of Ethics position is based on protecting the confidentiality of all personal patient data obtained in the course of professional service. Their exception to disclose - is if compelling professional reasons occur. These encompass the identifiable risk of serious harm to a client or other people. Though in all instances, social workers should share the least amount of confidential information necessary to achieve the desired purpose. 

      Additional protection of patients’ disclosed information includes federal mandates and state laws to ensure that counselors protect their clients' privacy of health data. These are included in Health Insurance Portability and Accountability Act (HIPAA) Privacy Rules. These encompass information relayed in oral, electronic, or paper form, stored or transmitted by a provider entity, following the federal rules of evidence. 

      Failure to follow HIPAA's guidelines can lead to fines imposed by the Office for Civil Rights. 

      Legal proceedings aside, confidentiality is a therapist’s ethical choice. A value of HIPAA’s mandates is to clarify what constitutes confidentiality. This provides practitioners a guide to check gray area issues as they occur. This benefits both the mental health professional and the patient, as they discuss what privacy practices are used throughout treatment, typically during their first encounter, and in the informed consent form. 

      In addition to HIPAA’s coverage, many states also have their legislation on confidentiality disclosures. The National Conference of State Legislatures provides guidance on confidentiality regulations for all. Most states either have a mandatory duty to warn or report. Others position them as permissive but not obligatory. Each practice’s therapists need to know the proper steps for their geographic location to support compliance. 

      When Should Doctors Breach Confidentiality

      Within HIPAA, NASW, and APA ethical guidelines, exceptions have been identified where a therapist breaking confidentiality is a warranted action, advantageous to everyone involved.  

      The APA states that therapists may disclose confidential information in circumstances including:  

      • To obtain consent from the patient, or from their legally authorized representative on their behalf.  
      • To supply necessary professional services. 
      • To receive professional consultations from other resources. 
      • To protect the patient or others from harm. 
      • To recover payment for their service from a patient or representative, by disclosing the minimum amount of identifiable information necessary to verify accounts receivable. 

      The NASW’s Code of Ethics position encompasses: 

      • Forgoing confidentiality when disclosure of details is necessary to prevent serious, foreseeable, and imminent harm to a patient or other identifiable person. 
      • With the stipulation that only data directly relevant to the purpose of the disclosure should be revealed. 

      Under HIPAA's Privacy Rule, a counselor can disclose a patient's protected health information without authorization under these instances: 

      • If it's a required court order. 
      • When information is requested by public health authorities. 
      • To prevent a serious, imminent threat to a person or to the broader public. 

      Legal Exceptions of Therapist-Patient Privilege  

      In addition to the ethical issues, there are also legal ramifications related to patient’s privilege, according to HIPAA and state regulations. These include the duty to warn, duty to protect, and duty to treat previsions. Among the most prominent are: 

      • The Client Has Waived the Therapist-Patient Privilege.

      Client may waive their therapist-patient privilege if they feel it will benefit them. This includes breaking confidentiality if they provide consent to a specific disclosure. Any of their other past and future therapy and medical records must remain confidential. 

      •  The Patient Is a Danger to Themselves or Others.

      If a therapist suspects a client poses a serious threat to themselves or others, that signals a duty to warn. Often, it’s not easy to measure the severity of a threat, and the decision takes careful judgment. It takes discernment to determine if the client intends to carry out a threat they made.  

      A duty to warn compels a therapist to disclose to law enforcement the threat itself, rather than the details of a client's treatment. This applies to hospitalization, supervision, or arrest situations.  

      •  There Is a Suspicion of Child Abuse.

      Mental health care providers are classified as mandatory reporters under the federal Child Abuse Prevention and Treatment Act. This mandates an obligation to report suspected cases of child neglect or abuse. It also applies to reporting elder abuse or neglect in most states. Re


      porting options include law enforcement or Child Protective Services. A therapist doesn’t need proof, and their identity is kept safe. 

      This one’s predicated on past, current, or future tense. Patients can discuss crimes they've committed in the past, without incurring a confidentiality breach. Though if they are still engaging in criminal activity, and it's putting others at risk, the therapist needs to evaluate the situation, notifying the authorities if warranted.  

      How to Chronicle and Manage the Confidentiality Break 

      When a therapist decides the need to break confidentiality, there are steps to take to assure both ethical and legal practices are maintained and documented.  

      Selecting whom to share the appropriate information with is key. Sticking to federal and state guidelines in each instance is always the right answer; only those who need to know should be notified. 

      Share only the minimum amount of data necessary to achieve the disclosure’s aim. Then, if legally or ethically prudent, let the client know that the disclosure’s been made, reminding them of the limits of their mutual confidentiality agreement. From there, repair work may be needed to support a healthy two-way therapist or physician-patient relationship. 

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