- Center for Ethical Practice - https://centerforethicalpractice.org -

POTENTIAL LIMITS OF CONFIDENTIALITY: OUTLINE & HANDOUT

The outline below can be helpful to you in deciding what limits of confidentiality might exist in your own setting. This involves (1) making decisions about what your own voluntary policies will be and (2) finding detailed answers about the state laws that might affect confidentiality.  (For example, your state may have lists of relevant state laws.  This website provides such a list for Virginia therapists here [1].)

Once you have adapted it to accurately reflect the policies in your own setting, it can also be used as a checklist for organizing the information as you prepare for the ethically-required informed-consent conversation with prospective patients, and for practicing how to present it in understandable language  (e.g., language that is more understandable than a standard HIPAA form!)  Finally, it can also be provided in writing to patients as a handout to use during the initial discussion of limits of confidentiality and form them to take home for considering whether they have further questions.

Potential Limits of Confidentiality

Limits Imposed Voluntarily (i.e., Not Legally Required)

• Access to Patient Information by Others in the Setting

Clinical Colleagues in the Setting (include any with access to pt. info.)
Non-Clinical Employees in the Setting (include any with access to pt. info.)
Contracted Agents (Billing Agents; Answering Service, Computer Guru, etc.)

• Other Disclosures Which Therapist May Later Make Without Further Consent

Danger to Self (disclosure is voluntary in states where not legally required)
Danger to Others (disclosure is voluntary in states where not legally required)
Disclosure to Parents About a Minor Patient (if voluntary in your state)
Other

• Dual Relationships or Conflicts of Interest That Might Compromise Confidentiality

• Agency or Group Practice Disclosure Policies that Limit Confidentiality

• Provider Contracts That Allow Access by Third Party Payers (e.g., potential audits)

• Confidentiality risks with use of electronic technology to provide services or transmit information

Limits That Can Be Imposed by Law (i.e., Possible “Involuntary” Disclosures)

• Laws Requiring Therapists to Initiate Disclosures without Pt. Consent (vary by state)

Mandated Reporting Laws
Duty-to-Warn or Duty-to-Protect Laws
Other

• Laws Granting Others Access to Information without Patient Consent (vary by state)

Parent Access to Minor Child’s Treatment Records (if legally required)
Access Following Mandated Reports (if legally allowed)
Access in Court Cases Involving Child Abuse  (e.g., CASA laws)
Access to Information/Records for Involuntary Commitment Proceedings
Laws Allowing Recipients of Information To Re-Release Without Consent
Other

• Exceptions to Therapist-Patient Privilege (Examples Only – Exceptions Vary by State)

Patient’s Mental Health is at Issue in the Case
Cases Involving Child Abuse
Custody/Visitation Disputes
“Judicial Discretion”
Other

Possible Limitations on Confidentiality Created by Use of Technology in the Setting

• Situations When Confidential Information is Stored on our Computers

• Circumstances When Confidential Information is Transmitted Electronically

Possible Re-Disclosure by Others of Information a Therapist Discloses to Them

• Patient Application for Health/Life Insurance, Mortgage or Loan (can trigger re-disclosure of information previously disclosed to third party payers)

• Re-Disclosures Legally Required (e.g., Testimony by CASA Worker, CSB Evaluator)

• Re-Disclosures Legally Allowed (e.g. HIPAA-Allowed Sharing among Providers)

You can view this page here:
https://centerforethicalpractice.org/potential-limits-of-confidentiality-handout/ [2]

(2020)