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Your Rights to Confidentiality

Mental health treatment often involves giving information to the therapist that the person receiving treatment wishes to be kept private or confidential. There are laws and regulations governing when information must be given to other people. The rules are different for adults (persons 18 or older) and children/adolescents. Below is a summary of situations when a therapist must give information to other people and links to U. S. Government web sites with additional information.

Is the Information Given to a Mental Health Therapist by an Adult Kept Confidential?

Information given by an adult (a person 18 or older) to a mental health therapist who is licensed by New York State or who is not licensed but works in a clinic or hospital licensed by New York State is generally kept confidential unless the adult gives the therapist permission to share the information.

There are several important exceptions to this rule.

Therapists who are not licensed or do not work in a licensed setting have no legal obligation to keep information they receive confidential. They may keep information confidential, but you have no recourse if they do not.
If an adult chooses to use health insurance (including Medicaid, Medicare and private companies) to pay for mental health treatment, the adult must give permission for the therapist to give information to the insurance company. Some insurance companies only ask for information about the person’s diagnosis. Other companies ask for a great deal of information about the nature of the problem, the plan to address it, and the progress the person is making in therapy. You can find out from your insurance company what information they will require before they pay for your treatment.
If a licensed therapist or an unlicensed therapist working in a licensed setting is told by an adult in treatment that he or she intends to seriously harm another person, the therapist is legally required to warn that person of the plan to harm.
If a licensed therapist or an unlicensed therapist working in a licensed setting is told by an adult in treatment that he or she intends to inflict serious self harm, the therapist is legally required to take action to keep the person safe. This usually involves sharing information with family members or others.
If a licensed therapist or an unlicensed therapist working in a licensed setting is told by an adult in treatment that he or she has abused a child (a person under 18), the therapist is legally required to report the abuse to the New York Child Abuse Registry.
An adult’s treatment record, as well as the adult’s therapist, can be subpoenaed by a court or a lawyer in a court case. When this happens, the adult in treatment has the right to object to having this information disclosed in court. A judge will decide whether the information will be disclosed.

Is the Information Given to a Mental Health Therapist by a Child or Adolescent Kept Confidential?

Children and adolescents (17 and younger) are considered minors in the eyes of the law. This means that their parents are responsible for them. Parents must give permission for their children to have mental health treatment and also have the legal right to information about their children’s treatment.

Although parents have a right to all information about their child’s or adolescent’s mental health treatment, it is usual for parents to agree that some or most information given to the therapist by the child or adolescent will be kept private unless the young person agrees that it be shared. This is often necessary to make a young person feel comfortable telling the therapist what is bothering him or her.

The exceptions which must always be made are that parents will always be told if safety is involved. When a therapist is told by a child or adolescent that he or she intends to inflict self harm or harm another person, the therapist must share the information with parents.

It is typically a part of the therapy to help a child or adolescent to be able to share at least some of the difficulties with parents so that they can help. Parents of children and younger adolescents usually work closely with their youngster’s therapist. Parents of youngsters of all ages almost always need to have information about their youngster’s diagnoses, the general plan to address problems including how long it will take, how they can help with the plan, and what progress is being made.

Information about a child or adolescent’s treatment must be given to a health insurance company if insurance is used to pay for treatment, and it can also be subpoenaed by a court. A child or adolescent’s mental health treatment record and their therapist may also be subpoenaed by a court. A parent may object to this and a judge will then decide whether information from the record and the therapist will be disclosed in court.

As with adult therapists, child and adolescent therapists who are not licensed or do not work in a licensed setting have no legal obligation to keep information they receive confidential. They may keep information confidential, but there is no recourse if they do not.

There is a law in New York State that allows a person 16 or older to have mental health treatment without their parent’s knowledge or consent if the young person has a very serious need for treatment and the parents will not give permission. The therapist must be able to document the need for the treatment.

If children 15 and younger have a very serious need for mental health treatment and their parents will not get it for them, it may be considered a kind of child abuse called medical neglect. In this case, a school or pediatrician or other person who is aware of the child’s need may contact a local government service called Child Protective Services for help. Child Protective Services will investigate the situation and if treatment is urgently needed, take steps to assure that a child gets needed treatment. This may involve working with the child’s parents or going to Family Court to get treatment ordered.

Additional Resources

Mental Health: A Report of the Surgeon General
http://www.surgeongeneral.gov/library/mentalhealth/chapter7/sec1.html
This is the first report on mental health from the United States Surgeon General. It was issued in December 1999. This site has information about confidentiality in mental health treatment.

Quality Interagency Coordination Task Force
http://www.consumer.gov/qualityhealth/privacy.htm
The Task Force has the responsibility to help Federal agencies with health care responsibilities to work effectively. This site gives a simple summary of privacy or confidentiality in health care, which includes mental health care, and gives links for more information.

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