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Know the Law:

Confidentiality, Mandated Reporting, and Duty to Warn

Charles Gentzel

Wake Forest University

CNS 780: Professional, Ethical, and Legal Issues in Counseling

Dr. Isabel Farrell

27 March 2021
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Know the Law: Confidentiality, Mandated Reporting, and Duty to Warn

Confidentiality is a necessary component of an effective counseling relationship. It is a

respect for the privacy of a client on behalf of the counselor that protects the contents of their

relationship from disclosure. It is an ethical and legal obligation that allows the client to feel safe

and secure divulging information to a counselor they might not feel comfortable telling someone

else (Remley and Herlihy 2020).

While confidentiality is an ethical concept, it is encapsulated legally in the concept of

privileged communication (Remley and Herlihy 2020). In North Carolina, which is the state I

currently reside in and plan to practice in, § 122C-52 of the Mental Health, Developmental

Disabilities, and Substance Abuse Act of 1985 grants this as a right to clients, noting that

“confidential information acquired in attending or treating a client is not a public record” and

“no individual having access to confidential information may disclose this information.”

Violation of this privilege is a class 3 misdemeanor, which is punishable by a fine, “not to

exceed $500” (§ 122C).

The law does note several exceptions. Before going into detail, the law uses the term

“facility” which it defines as “Any person at one location whose primary purpose is to provide

services for the care, treatment, habilitation, or rehabilitation of individuals with mental illnesses

or intellectual or other developmental disabilities or substance abusers” (§ 122C-3). The “any

person at one location” means not just the specific therapist who treats the client in question, but

could mean an office manager or a clinical director. When disclosure must come from a specific

position, it is noted in the law. It is interesting that a facility is the basic unit of confidentiality

here and not the specific provider. In my practicum, we discussed all the clients together, which

I thought was ethical because it was a group setting and we were all counselors for all clients. It
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seems now that even if it wasn’t a group setting, internal discussion of privileged communication

can legally occur. I think it is still only ethical in certain situations, but I can also see how office

managers might need to know certain things to be able to file insurance claims, as one example.

Clients may have access to their own information, unless that information is found by the

attending physician, facility director, or their designated representative (in that order) to be

hazardous to their physical or mental well-being (§ 122C-53 (c)). This can also be acquired by

someone who is considered legally responsible for the client, with the same exceptions as

previously noted (§ 122C-53 (d)). The client may consent to have information be released to a

specific person, but this must be obtained in writing (§ 122C-53 (a)). Client advocates also have

some access to confidential information. Internal advocates who are either employed or

contracted by a facility to client is attending have access, without the client’s consent, to routine

information that is deemed relevant to their duties as advocates. External advocates, who have a

written agreement with clients to act in an advocate capacity and are not considered internal,

require written authorization from the client (§ 122C-53 (f)). A facility can share privileged

information with another facility or state program manager to coordinate continued care and

treatment (§ 122C-55). Prepaid health plans, insurance basically, can share privileged

information with area facilities(§ 122C-55), which is defined as a “which is a facility that is

operated by or under contract with the area authority or county program” (§ 122C-3). Limited

information may be released if the client is thought to be eligible for financial assistance or

educational funding(§ 122C-55). There are also numerous provisions specifically regarding the

UNC hospital system as they seem to have a unique relationship with state sponsored programs.

Federally, the contents of therapy sessions are protected from the rules of evidence

through the Supreme Court decision in Jaffee v. Redmond, 518 U.S. 1, 15 (1996). In this case, it
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was determined that privilege between counselor and client better serves public good than a

search for evidence and is protected. Information that has the specific client details, such as

names, removed may be shared for research purposes from state and area facilities (§ 122C-56).

Exceptions are also made for court proceedings if ordered to by a court (§ 122C-54 (a)).

Which is interesting because federally, the contents of therapy sessions are protected from the

rules of evidence through the Supreme Court decision in Jaffee v. Redmond, 518 U.S. 1, 15

(1996). In this case, it was determined that privilege between counselor and client better serves

public good than a search for evidence and is protected. That likely means they cannot be seized

by authorities as part of the evidence gathering process and must be obtained by petitioning the

court to compel them. When they are successfully petitioned, “the facility shall send the results

or the report of the mental examination to the clerk of court, to the district attorney or

prosecuting officer, and to the attorney of record for the defendant” (§ 122C-54 (b)). Facility

directors, or their designee, can disclose privileged information when petitioning for involuntary

committal if that serves the best interest of the client. The record of commitment is required to

be sent to National Instant Criminal Background Check System (§ 122C-54 (d2)).

In cases of child abuse, anyone or any institution who has cause to believe abuse or

neglect is occurring are required to report the abuse (§ 7B-310) . “No privilege shall be grounds

for any person or institution failing to report that a juvenile may have been abused, neglected, or

dependent, even if the knowledge or suspicion is acquired in an official professional capacity” (§

7B-310). Essentially, the counseling relationship and its privileges do not supersede the ethical

responsibility to protect possible abuse victims. Abuse is defined as un-accidental serious bodily

harm; serious risk of harm; the use of cruel devices for punishment; committing, encouraging or

permitting sexual assault or exploitation; serious emotional damage; or the encouragement,

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direction or approval of “delinquent acts involving moral turpitude committed by the juvenile” (§

7B-100) by anyone considered a caretaker of the minor. Reports must be made to the county

department of Social Services (North Carolina Department of Health and Human Services). It is

worth noting that an appellate court in re: C.B., J.B., Th.B., & Ti.B.NO. COA05-1517 (2006)

found that punishing a child with whipping or spanking that leaves bruises does not constitute

abuse. This could make it very difficult to actually determine if the legal metric for abuse is

being met. I plan to err on the side of nonmalfeasance by reporting anything I suspect of abuse.

I think it will do less harm to report corporal punishment for abuse than assume abuse occurred

“legally” as punishment. It is not my role to adjudicate if abuse actually happened, but to report

if I suspect it.

Much of the country adopted duty to warn laws after Tarasoff v. Regents of the

University of California (1976) determined that a therapist has an obligation to protect if their

client poses a serious threat of harm. North Carolina does not have a duty to warn law (NCSL

2018). This was reinforced by precedent set in Gregory v. Kilbride (2002) where a psychiatrist

was not found negligent for failing to commit a patient or warn their intended victim when killed

someone after expressing a desire to do so in a session. While this held up that there is no

requirement to warn, § 122C-55(d) states that “A responsible professional may disclose

confidential information when in the responsible professional's opinion there is an imminent

danger to the health or safety of the client or another individual or there is a likelihood of the

commission of a felony or violent misdemeanor.” So I would not have to warn, but I may warn.

While I recognize I am not legally required to warn, I still feel I am ethically obligated to do so.

Not warning when I felt that imminent danger is likely would violate the ethical principle of

nonmaleficence. While laws can be very specific, ethical principles can be applied more
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broadly. Just because something is not a violation of the law does not mean it isn’t a violation of

ethics, especially when serious harm is likely.

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References

§ 7B Juvenile Code retrieved from

https://www.ncleg.gov/Laws/GeneralStatuteSections/Chapter7B

§ 122C Mental Health, Developmental Disabilities, and Substance Abuse Act of 1985. (1985, c.

589, s. 2; 1989, c. 625, ss. 1, 2.) retrieved from

https://www.ncleg.gov/EnactedLegislation/Statutes/html/bychapter/chapter_122c.html

Gregory v. Kilbride, 150 N.C. App. 601, 565 S.E.2d 685 (N.C. Ct. App. 2002) retrieved from

https://casetext.com/case/gregory-v-kilbride

Jaffee v. Redmond, 518 U.S. 1, 15 (1996) retrieved from

https://supreme.justia.com/cases/federal/us/518/1/

National Conference of State Legislatures (NCSL) (2018) Mental Health Professionals’ Duty to

Warn https://www.ncsl.org/research/health/mental-health-professionals-duty-to-

warn.aspx#1

North Carolina Department of Health and Human Services (NCDHHS) About Child Abuse and

Child Neglect https://www.ncdhhs.gov/divisions/social-services/child-welfare-

services/child-protective-services/about-child-abuse-and

re: C.B., J.B., Th.B., & Ti.B.NO. COA05-1517 (2006) retrieved from

https://appellate.nccourts.org/opinions/?c=2&pdf=26300

Remley, T.P., & Herlihy, B. (2020). Ethical, legal, and professional issues in counseling. (6th

ed.). Upper Saddle River, NJ: Merrill.

Tarasoff v. Regents of the University of California, 131 Cal. Rptr. 14 (Cal. 1976) received from

https://www.lexisnexis.com/community/casebrief/p/casebrief-tarasoff-v-regents-of-univ-

of-cal
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