Doctor/Patient confidentiality

Some of the nuance here can be very specific and jurisdictional. For ex, mandatory reporting for a harmed child is common to care providers of many sorts, but not every place has good mandatory reporting for all populations. When elder abuse got attention, some places put it on mand rrpt rules.

I had a counselor call when his pt was somewhat vague but made far too many comments for comfort about harming someone. Counselor essentially told pt 'oh, this is something you should tell the po-po. We can call 'em now, kay?' and then got the guy nodding and called.

Some therapists define their reporting duty differently--the ex above was unsual, I thought at the time. Murder sounds worse, and is, but on the other hand, there is no current active harm occurring, so no rush to get someone out of a house. Check your laws, esp how your victim fits the reporting law and you may be able to write this just as you want.

I believe most therapists include a disclaimer in their client agreements regarding reporting crimes of that nature.

lakewriter said:

If a person tells her therapist that she knows her husband murdered someone, is that ground for the therapist to report it? How far does patient/dr confidentiality go?

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Hi Lakewriter,

As a counseling student (2008 graduation), I've learned that the limits of confidentiality are if the person indicates that they will hurt themselves or someone else (suicide, homicide, elder abuse, or child abuse). The therapist is required to call 991 or take the person to the nearest ER. If the wife knows it, the therapist should first make sure that the wife is not in danger herself and then advise her to call the police. The therapist should also report the information to his/or her immediate surpervisor.
Any other questions, please don't hesitate to ask.

Hi,

I've been a licensed PhD psychologist for 20+ years. The laws vary a little state by state, but basically it's this:

Therapists (along with many other folks--attorneys, clergy, physicians) enjoy "privileged communication" (confidentiality) with their clients.

Except for the following special circumstances:

--danger to self
--danger to others
--child abuse
--elder abuse

Note that this involves the threat of a present or future danger, not past behavior.

Danger to others is especially tricky. You can google "Tarasoff" for more information. But if a patient expresses a clear threat to harm someone else, in most states the therapist is required to call the police, if possible get the patient hospitalized, and (the controversial part) warn the intended victim.

You are not required to turn in someone for a past crime.

Certain kinds of subpeonas, however, can require you to release records or testify.

Hope this helps.

Susan

Actually the doctor (eventhough a therapist is not a doctor) would be duty bound to report it, or can be prosecuted as an accessory after the fact. The confidentiality is between 2 people, the doctor and the patient. As soon as another person is brought into it involving a felony, then there is no more rule of confidentiality.

Susan B said:

Note that this involves the threat of a present or future danger, not past behavior.

You are not required to turn in someone for a past crime.

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Depending upon the circumstances a doctor can be expected to report past activity or be considered an accessory. Remember Dr Mudd?

Susan B said:

Certain kinds of subpeonas, however, can require you to release records or testify.

Hope this helps.

Susan

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Right, a subpoena trumps confidentiality. There the doctor should photocopy the subpoena and put it in the chart and record the names and badge numbers of the investigators.

I found the simplest thing was to allow the police in the ER room and talk to the patient after they are stabilized. Other doctors didn't want the police in the room, but I liked it. I could do the friggin paperwork in the room and if I could hear the patient was talking to the cop, I knew he was still breathing.

lakewriter said:

If a person tells her therapist that she knows her husband murdered someone, is that ground for the therapist to report it? How far does patient/dr confidentiality go?

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I think it would also depend on whether the therapist thought that the patient was credible. I think the standard is "danger to themselves or others". If the therapist thought that the patient had issues regarding reality vs. imagination then they would proceed very carefully.

Also, they would want to understand the wife's motives in telling the story about the "murder". Is the wife saying that the husband murdered someone because she is afraid? Is the wife telling because she is angry and wants out of the marriage? Is the wife trying to use the therapist to ruin the husband?

An experienced therapist would want to sift through their patient's issues before accepting that everything coming out of the patient's mouth was true. Think about it, do you really think that therapists believe everything that their patients tell them? They are trained to sift through all the information and to try and find out the truth. Sometimes patients believe something is true even though it isn't; the inability to discern truth from fiction can be the impetus that drives people to a therapist in the first place.

I'll get off my soap box now......

Judy

Greetings,

I'm new here. However, I've done something 99.9999% of the people in this country have not done... I actually read the Patriot Acts (I and II). There is not longer any patient/doctor confidentiality nor is there any such thing as client/attorney privilege. The Patriot Acts did away with them completely. Attorneys are largely unaware of this. Your medical records are no longer private and neither are your phone calls. And they don't need a court order to pry into either. We now live in a Gestapo state. So the question isn't whether the doctor can "tell" - he/she can. The issue becomes will they?

Respectfully,

Samantha Black

threedogpeople said:

I think it would also depend on whether the therapist thought that the patient was credible. I think the standard is "danger to themselves or others". If the therapist thought that the patient had issues regarding reality vs. imagination then they would proceed very carefully.

Also, they would want to understand the wife's motives in telling the story about the "murder". Is the wife saying that the husband murdered someone because she is afraid? Is the wife telling because she is angry and wants out of the marriage? Is the wife trying to use the therapist to ruin the husband?

An experienced therapist would want to sift through their patient's issues before accepting that everything coming out of the patient's mouth was true. Think about it, do you really think that therapists believe everything that their patients tell them? They are trained to sift through all the information and to try and find out the truth. Sometimes patients believe something is true even though it isn't; the inability to discern truth from fiction can be the impetus that drives people to a therapist in the first place.

I'll get off my soap box now......

Judy

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Exactly. Another thought is (sadly) how involved the dr/therapist/whatever wants to get. It can be a huge, sticky hassle mess (trust me) to report something like this. The dr. doesn't just phone someone up and that's all. There are written reports, investigations, etc., and the danger of undermining other protected information, as well as undermining the therapy itself.

lakewriter said:

Thanks! So basically if I told my therapist I had just found out my husband had killed someone a long time ago (and the police didn't know), then the therapist would tell the proper authorities what she heard. Is that right?

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No, that's not. Note that Skyraven was talking about someone who "will" (future tense) kill someone. In THAT case, yes, the therapist can, and in most states must, tell someone in order to prevent the attack. The therapist would tell in the case of FUTURE harm (i.e. you tell your therapist you're going to kill someone), but not past harm. It is not the therapist's job to solve crimes. Her job is to help her patient. If her patient said she knew her husband had killed someone in the past, the therapist's job would be (1) to help the patient determine whether that meant her husband was still dangerous now, (2) to help the patient determine whether she wanted to stay with a man she knew was a murderer, (3) to help the patient deal with the situation emotionally... etc., that sort of thing.

GeorgeK said:

Actually the doctor (eventhough a therapist is not a doctor) would be duty bound to report it, or can be prosecuted as an accessory after the fact. The confidentiality is between 2 people, the doctor and the patient. As soon as another person is brought into it involving a felony, then there is no more rule of confidentiality.

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That is adamantly not the case. I just graduated from law school and took mental health law in the last semester (</end credentials flash>). The confidentiality is between the doctor and the patient, but it includes everything the patient tells the therapist, regardless of who the information is about. The exceptions to confidentiality arise when there is a danger of imminent FUTURE harm to the patient or someone else. Past harm does NOT trigger the therapist's ability (and in most states, duty) to report. Whether the past harm constitutes a felony or not is irrelevant.

*Edited to add* Doctor/patient privilege is slightly different than therapist/patient privilege, just FYI. For example, since therapy is generally conducted by talking, anything the patient says to the therapist during a session is covered by the privilege (i.e. must be kept confidential). However, NOT everything you tell your medical doctor during a doctor's appointment is covered by the privilege; only what you tell her in your effort to obtain diagnosis or treatment is covered. So if you say "my husband drove like a madman so I hit my head on the car window and have had headaches ever since," that should be privileged (i.e. confidential), because it's about a health problem of yours. But if you happen to mention "my husband drove like a madman and accidentally hit a pedestrian the other night," that is NOT confidential, because it has nothing to do with your own illness or injury. That being said, to my knowledge there is no duty on doctors to report such statements to authorities. But, there's also no privilege, so the doctor could probably report it.

GeorgeK said:

Depending upon the circumstances a doctor can be expected to report past activity or be considered an accessory. Remember Dr Mudd?

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Dr. Mudd? That was nearly 150 years ago. There WAS no law, or at least not clear and settled law, on doctor/patient privilege back then. His situation (for those not in the know, "his situation" is shorthand for "aiding and abetting John Wilkes Booth after the assassination of President Lincoln") is totally irrelevant to the legal position of doctors today; the law has changed.

ideagirl said:

That is adamantly not the case. I just graduated from law school and took mental health law in the last semester (</end credentials flash>). The confidentiality is between the doctor and the patient, but it includes everything the patient tells the therapist, regardless of who the information is about. The exceptions to confidentiality arise when there is a danger of imminent FUTURE harm to the patient or someone else. Past harm does NOT trigger the therapist's ability (and in most states, duty) to report. Whether the past harm constitutes a felony or not is irrelevant.

*Edited to add* Doctor/patient privilege is slightly different than therapist/patient privilege, just FYI. For example, since therapy is generally conducted by talking, anything the patient says to the therapist during a session is covered by the privilege (i.e. must be kept confidential). However, NOT everything you tell your medical doctor during a doctor's appointment is covered by the privilege; only what you tell her in your effort to obtain diagnosis or treatment is covered. So if you say "my husband drove like a madman so I hit my head on the car window and have had headaches ever since," that should be privileged (i.e. confidential), because it's about a health problem of yours. But if you happen to mention "my husband drove like a madman and accidentally hit a pedestrian the other night," that is NOT confidential, because it has nothing to do with your own illness or injury. That being said, to my knowledge there is no duty on doctors to report such statements to authorities. But, there's also no privilege, so the doctor could probably report it.

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You are so wrong. Law school is not real life. I'm a retired physician and have been faced by similar circumstances. The American Judicial system is based on precedent and it doesn't matter that something happened 150 years ago. Now the thing that makes the difference is whether or not the patient was a participant in the crime, or if they are only relating hearsay. Hearsay does not need to be reported as it could easily be the ramblings of someone with a grudge or somewhat crazy. But if a patient brings credible evidence to the doctor about a felony, they are bound to report it. (like injuries consistent with child abuse, or a gunshot wound, or a stabbing) The confidentiality is in regard to their medical problems, not their legal problems.

GeorgeK said:

You are so wrong. Law school is not real life. I'm a retired physician and have been faced by similar circumstances. The American Judicial system is based on precedent and it doesn't matter that something happened 150 years ago.

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It doesn't matter UNLESS a contradictory law has been passed since then. In this case, that's what happened.

Doctor-patient privilege is a creation of statute (i.e., written, codified law), not precedent. Where those statutes exist (almost, but not quite, every state has them), they were passed by the legislatures of each state and--here is the key point--they were passed much more recently than 150 years ago. Let me put that in plain English: the existence and scope of doctor-patient privilege is based on laws passed by your state legislature. Your state legislature is capable of passing a law that wipes out all pre-existing precedent on a given issue, making all previous caselaw irrelevant. When the legislature does that, the state's courts then have to throw out all their old rules and start interpreting the new law, and each new case on that new law creates new precedent. So, since doctor-patient privilege laws are fairly recent, they wipe out any contradictory provisions of earlier precedent. Therefore, the case you mentioned from the 1860s is now completely and utterly irrelevant.

GeorgeK said:

if a patient brings credible evidence to the doctor about a felony, they are bound to report it. (like injuries consistent with child abuse, or a gunshot wound, or a stabbing) The confidentiality is in regard to their medical problems, not their legal problems.

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PS It sounds like you didn't read what I said closely enough, because you shot off an ornery response when in fact we're in agreement on the basic concept. What I said was that, when it comes to confidentiality between a medical doctor and a patient being treated for physical problems (as opposed to mental health issues), the confidentiality only covers things the patient says that relate to diagnosis or treatment. If the patient says "My brother-in-law stabbed me," how is that relevant to treatment? The doctor doesn't need to know WHO stabbed the patient in order to treat the patient; therefore, doctor-patient confidentiality doesn't cover the fact that it was the patient's brother-in-law who did it. The doctor could tell that fact to the police. The doctor doesn't even need to hear the words "somebody stabbed me" in order to treat the patient; it doesn't matter, medically speaking, whether the patient was stabbed or accidentally fell on a knife--same difference, there's a knife wound to treat.

In other words, as you said, the confidentiality is in regard to their medical problem--not their (or the perpetrator's) legal problem. Doctor-patient confidentiality is much narrower than attorney-client confidentiality. The confidentiality between a psychotherapist (psychiatrist, whatever) is a whole nother ball of wax; it's much broader than the confidentiality between a regular medical doctor and a patient with physical health problems. The question asked at the beginning of the thread was about therapists and their patients, and the answer for that situation has already been given: the therapist's duty of confidentiality covers basically everything the patient says, with the exception of threats made by the patient to harm or kill somebody (threats of imminent FUTURE harm to a third party). In other words, if the patient gives the therapist information that would help solve some PAST crime, the therapist is bound by confidentiality not to reveal it. If the patient waives confidentiality then the therapist can reveal the info, and patients can waive confidentiality without meaning to, but it's unlikely.

lakewriter said:

If a person tells her therapist that she knows her husband murdered someone, is that ground for the therapist to report it? How far does patient/dr confidentiality go?

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Now that we've gotten through the issue of therapist/patient confidentiality, there's one other issue to cover in your question: the marital communications privilege. It's possible that even if somehow, bizarrely, the patient waived her therapist-patient confidentiality and thus freed her therapist to testify that she said this (or to give the court notes of therapy sessions where this is written down), the husband would still be able to invoke marital communications privilege to keep it from coming into the case. I'm just mentioning this to clarify how incredibly remote the chances of using this statement in court are; with the double barriers of therapist/patient AND marital communications privilege, there is about as close to "no chance" as there can possibly be.

Here's how the marital communications privilege works. If Husband tells Wife that he killed someone, then Husband has an expectation of confidentiality that Wife can't violate; this is different than if she finds out some other way, such as by seeing the husband dispose of evidence. If the way she found out is by him telling her the secret, then she can't go on the stand and testify "he told me he killed so-and-so." Or that is, she can't unless he waives the privilege, which isn't likely, so even if she wants to testify against her husband, she can't testify about the secrets he told her. This is different from the 5th Amendment spousal privilege of not testifying against each other, which may be more familiar from crime shows on TV... here's the difference:

Marital communications privilege:
* "Owned" by the spouse who told the other spouse something secret (thus, if Husband told Wife something, Wife cannot reveal it on the stand unless Husband lets her). This privilege covers the right of spouses to tell each other secrets and have those secrets be kept. If Spouse A exercises this privilege, he or she can prevent Spouse B from sharing the secret with the court.
* Only covers communications made in private between the spouses during the marriage. If he told her the secret the day before the wedding or the day after divorce, she can get on the stand and testify. If he told her any time DURING the marriage, she can't. If he mentioned it a couple of times, once during the marriage and once before, she could testify about the time before the marriage; she might possibly also be allowed to testify about the time he said it during the marriage, if the court decided that he'd waived his right to keep it a secret by telling her before they were married.
* Does not cover anything but communications, and only communications between the spouses. If Wife knows husband killed someone because she saw it happen, or because Husband's friend told her about it, she can testify about it if she wants; those aren't communications between the spouses, so this privilege doesn't apply.

Spousal testimony privilege:
* "Owned" by the spouse who could testify against the other spouse. This privilege covers the right of spouses to choose not to testify against each other. If Spouse A exercises this privilege, he or she prevents the government from forcing him or her to testify against his or her spouse. In other words, it's up to Spouse A whether to testify or not: she can use this privilege to legally refuse a subpoena to testify... or she can waive this privilege and get up there and testify; it's up to her. Unlike the marital communications privilege, Spouse B can't stop her from testifying; it's totally up to Spouse A.
* Covers THINGS OTHER THAN marital communications (which is logical, since the marital communications privilege covers those). Example: if she saw her husband commit a crime or dispose of evidence, or someone other than her husband told her about it. When she got information by seeing it happen, or in any way other than by having her husband tell her the secret, then it's up to her whether or not to testify against him: she can either exercise this privilege to refuse to testify, or waive the privilege and testify against him. He can't stop her from testifying if she wants to, and the government can't force her to testify against him if she doesn't want to.
* Covers things that happened during or even before the marriage, but only works during the marriage. If Wife saw Husband commit a crime while they were married (or beforehand), but then they divorce, and then he's brought up for trial for that crime, she can't refuse to testify against him--she has to obey any subpoena--because they're no longer married, so she doesn't have the right to invoke this privilege anymore. If they remarry the day before trial, bingo, she can invoke the privilege again.

Note that like any privilege, the exact details of these privileges depend on state law. I'm just giving the general overview here.