Confidentiality, Privileged Communication, and Recordkeeping
Three Distinct Concepts
Questions frequently blur confidentiality (the ethical duty not to disclose), privilege (the legal right of the client to prevent testimony), and recordkeeping (documentation duties). Keep them separate: confidentiality is the psychologist's obligation; privilege belongs to the client and can be waived; records are the tangible evidence of care.
Confidentiality
Disclose only with valid authorization or as required or permitted by law-mandatory reporting, imminent danger, court order, or statutory exceptions. Know that confidentiality extends after death and to minors, with guardians exercising rights on the child's behalf while the child's developing autonomy is respected.
Privilege
Privilege is created by statute and belongs to the client, not the therapist. The psychologist asserts privilege on the client's behalf but cannot waive it. Exceptions (e.g., court-ordered evaluations, client putting mental state at issue) are common test items. A subpoena is not a court order-it demands a response, but the psychologist must assert privilege and seek guidance before disclosing.
Recordkeeping
Maintain records sufficient to support care, ensure continuity, and permit supervision and billing. Know retention expectations, security, and the client's right of access, with limited exceptions where access could harm the client. Document informed consent, risk assessments, consultations, and any disclosure decisions.
Traps
- Treating a subpoena as authorization to release records. It is not.
- Assuming privilege protects everything-it does not cover mandated reports or certain legal exceptions.
- Forgetting to document why a disclosure or refusal occurred.
Rule of Thumb
Before releasing anything, ask: Who holds the right, what instrument compels me, and what does the law require? If the answer is unclear, assert privilege, notify the client, and seek legal or ethics consultation.
Worked Example
A subpoena seeks a client's full file in a custody case. The psychologist does not release records; instead, she notifies the client, asserts privilege, and seeks a court order or client authorization before complying.