Important Context
Therapist-client relationships are already protected by strong legal and ethical confidentiality requirements. This page discusses when additional privacy agreements might be appropriate and what they can (and cannot) accomplish. This is informational content, not legal or clinical advice.
Existing Confidentiality Protections
Before considering additional agreements, understand the protections that already exist for therapeutic relationships.
Legal Protections
- HIPAA (Health Insurance Portability and Accountability Act): Provides federal protection for protected health information (PHI), including mental health records
- State mental health confidentiality laws: Many states have additional protections specifically for mental health information
- Psychotherapist-patient privilege: Protects therapy communications from compelled disclosure in legal proceedings
- Professional licensing requirements: Therapists risk losing their licenses for confidentiality breaches
Ethical Obligations
- APA Ethics Code: Psychologists are bound by strict confidentiality requirements
- NASW Code of Ethics: Social workers have ethical obligations to protect client information
- State licensing board rules: All licensed mental health professionals face professional discipline for breaches
No agreement can override a therapist's legal obligation to report certain things, including: imminent danger to self or others, suspected child abuse or neglect, elder abuse, and court orders in certain circumstances. These are non-negotiable legal requirements.
When Additional Agreements May Help
Despite existing protections, there are situations where additional privacy agreements can provide value.
For Clients
- High-profile individuals: Celebrities, executives, or public figures who want extra assurance about discretion
- Specific content concerns: Clients discussing matters that could be particularly damaging if disclosed (affairs, illegal activity they've witnessed, etc.)
- Small communities: Where therapists might encounter clients socially and need explicit non-acknowledgment agreements
- Workplace issues: When therapy involves discussing workplace matters and the client needs assurance this won't reach their employer
For Therapists/Practices
- Group practice settings: Clarifying confidentiality among multiple providers
- Telehealth services: Addressing technology-specific privacy concerns
- Consultation arrangements: When therapists consult with colleagues about cases
- Administrative staff access: Defining what non-clinical staff can see
Provider Types and Confidentiality
Different types of mental health providers have varying levels of legal protection.
Licensed Psychologists
PhD or PsyD, state licensed. Strong psychotherapist-patient privilege protection. HIPAA covered.
High ProtectionPsychiatrists
Medical doctors (MD/DO) with psychiatric specialty. Full physician-patient privilege plus HIPAA.
High ProtectionLicensed Clinical Social Workers
MSW with clinical license (LCSW). Protected under most state social worker privilege laws. HIPAA covered.
High ProtectionLicensed Counselors (LPC/LMHC)
Master's level counselors. Protection varies by state. Generally HIPAA covered if in healthcare setting.
Moderate ProtectionLife Coaches
No license required in most states. NO psychotherapist privilege. May not be HIPAA covered.
Protection VariesPastoral Counselors
Clergy members providing counseling. Clergy-penitent privilege may apply. HIPAA generally doesn't apply.
Protection VariesKey Takeaway
If you're working with an unlicensed provider (like a life coach) or someone operating outside traditional healthcare settings, additional confidentiality agreements become much more important because you lack the automatic legal protections.
What Privacy Agreements Can Address
| Topic | What Agreement Can Do | What Agreement Cannot Do |
|---|---|---|
| Social Encounters | Establish that therapist won't acknowledge knowing client in public settings | N/A - This is typically addressed |
| Waiting Room | Require procedures to minimize client encounters | Guarantee no one will ever see you there |
| Records | Specify retention periods, destruction protocols | Override legal record-keeping requirements |
| Consultation | Require de-identification when consulting colleagues | Prevent all clinical consultation (ethically required) |
| Insurance | Offer private-pay to avoid insurance knowing | Prevent required insurance disclosures if using insurance |
| Subpoenas | Commit to asserting all available privileges | Prevent compliance with valid court orders |
| Danger to Others | N/A | Prevent mandatory Tarasoff-type warnings |
Sample Agreement Provisions
These provisions might supplement (not replace) standard informed consent documents.
Social Encounter Non-Acknowledgment
Enhanced Appointment Privacy
Consultation Protocols
Records and Data
Special Situations
Couples Therapy
Confidentiality in couples therapy involves unique considerations:
- What is shared in individual sessions vs. couple sessions
- Whether secrets from one partner can be kept from the other
- What happens to records if the couple divorces
- Who can authorize release of couple session records
Most couples therapists have explicit policies about these issues. Additional agreements can clarify what happens post-therapy, particularly regarding divorce proceedings.
Family Therapy with Minors
Privacy becomes more complex when minors are involved:
- Parents generally have access rights to minor children's records
- State laws vary on minor confidentiality rights
- Agreements must balance family dynamics with child welfare
Court-Ordered Treatment
When therapy is court-ordered, confidentiality is significantly limited. Courts may require reports, and full privilege may not apply. Agreements should clearly acknowledge these limitations.
Ethical Considerations for Providers
Therapists considering additional privacy agreements should be aware of ethical implications:
- Informed consent: Agreements should enhance, not obscure, the client's understanding of confidentiality
- Clinical judgment: Agreements cannot override the therapist's clinical and ethical obligations
- Power dynamics: Be cautious about client-initiated agreements that might reflect pathology or manipulation
- Fee considerations: Charging extra for enhanced privacy could create problematic dual relationships
- Special treatment: Treating VIP clients differently raises ethical concerns about equal care standards
Before entering into unusual confidentiality agreements, therapists should consult with their licensing board, malpractice insurance carrier, and/or an attorney familiar with mental health law. Some provisions could expose you to liability or disciplinary action.