Confidentiality and its limits

Confidentiality is not absolute anywhere. The exceptions vary by jurisdiction, and the clinician’s obligation is to know their own and to state them at the outset in words the patient can repeat back.

The usual exceptions

• Imminent risk of serious harm to the patient
• Serious threat of harm to an identifiable other, where a duty to warn or protect exists
• Suspected abuse or neglect of a child, older adult or dependent adult, per mandated reporter status
• Court order — which is not the same as a subpoena, and the difference matters
• Supervision and consultation
• Third-party payers, who typically require a diagnosis and may require records
• Medical emergency during a session

Specific situations that catch clinicians out

Subpoena vs. court order

A subpoena is a request from a party; a court order is a judicial direction. Responding to a subpoena by sending records without asserting privilege or seeking legal advice is a common and serious error.

Couple and family work

Decide and state your policy on individual disclosures before you receive one. Most contemporary practice uses a no-secrets policy for exactly this reason.

Minors

The age of consent to treatment and to confidentiality varies widely. Negotiate with the young person and the parents what will and will not be shared, before the first session.

Deceased patients

Confidentiality generally survives death, and requests from relatives are not a reason to disclose.

Electronic records and messaging

A note in a shared system is visible to everyone with access to that system. Patients frequently do not realise this.