Confidentiality, Privileged Communication, and Records
Confidentiality versus privilege
Confidentiality is the clinician's ethical-legal duty not to disclose client information. Privilege is the client's legal right to prevent testimony. They are related but distinct, and questions exploit the difference: a licensee cannot waive the client's privilege, and the holder of privilege is generally the client (or guardian for a minor).
Exceptions and releases
Disclosure is permitted or required with valid written authorization, for mandated reporting, to prevent serious harm, under court order, and for certain administrative purposes. Valid authorization requires informed consent elements: who may disclose, to whom, what information, purpose, expiration, and right to revoke. Records belong to the provider but the client has access rights, subject to limited exceptions where access would cause harm.
Traps
- Assuming a subpoena equals a court order; a subpoena may require a response but not necessarily disclosure of privileged material.
- Believing a spouse or parent can consent for an adult client.
- Releasing records on a phone request without written authorization.
- Discussing clients in identifiable terms in supervision or consultation without need-to-know.
Worked example
An attorney subpoenas records. The licensee does not automatically send them; the licensee asserts privilege, notifies the client, and seeks guidance or a court order before releasing.
Rule of thumb
No authorization, no disclosure - unless a specific legal exception applies. When unsure, protect the record and seek legal guidance rather than release.