Confidentiality and Legal Privilege

Confidentiality

Confidentiality is the legal and ethical duty of therapists not to reveal information about their clients to unauthorized individuals. Legally and ethically, therapists are bound by statute and by the profession's code of professional conduct not to reveal information about their clients to unauthorized individuals. Legally and ethically, clients have the right to prevent their therapist from disclosing information shared by them in counseling without their consent.

In counseling, two types of confidentiality are commonly recognized: content confidentiality and contact confidentiality. Content confidentiality requires that the substance or content of the client's discussion with a counselor not be revealed by the professional. Disclosures of confidential client information to individuals with no right to that information are called content breaches. Such breaches of confidentiality may result in civil liability to the therapist or licensure revocation. Contact confidentiality requires that the professional not reveal the fact that the client is being seen by the professional. Disclosures to an unauthorized party that the client is seeing the therapist are referred to as contact breaches. Although therapists often make strenuous efforts to avoid disclosures of the identities of their clients, the law generally does not address matters of contact confidentiality.

The ethics codes of both the American Psychological Association (APA) and the American Counseling Association (ACA) provide a set of standards and code of conduct to guide the professional activities of their members, including the provision of counseling and psychological services. In both codes, the duty of counselors and therapists to protect and uphold their clients' right to privacy is fundamental, and both generally are interpreted as including the protection of contact confidentiality. Nevertheless, it is important that counselors and their clients understand the distinction between content and contact confidentiality, as most laws governing the confidentiality of counselor-client communications do not protect contact confidentiality.

Therapists' obligations to protect their clients' confidentiality derives from the client's right to privacy, which itself derives from the more general, but central, ethical value of personal autonomy—a person's right to

“self-determination.” In this case, it is the right to determine with whom personal information may be shared. Confidentiality in this sense can be understood as the counselors' duty or obligation to support clients' right to privacy by not repeating to or sharing with others information shared privately with them by their clients. What clients consider to be private must stay private, and it is the duty of therapists to assure that this is the case with respect to disclosures made by clients in counseling. If a client's private information is to be shared with another, it should be shared by the client—or at least with the consent or authorization of the client. In this regard, a client's right to privacy and a client's right to confidentiality in relation to communications shared in counseling are one and the same.

Because confidentiality and privacy are a client's right, the client may waive that right if he or she chooses. In making such a waiver, it must be demonstrated that such waiver is undertaken knowingly and voluntarily. That is, counselors may ethically and legally reveal a client's confidences with the informed consent of the client.

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