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

Faith Johnson

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

Dr. Farrell

March 28, 2021

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As a mental health professional, there are many steps one must take to ensure the safety and

overall well-being of a client. These steps range from confidentiality to the reporting of

suspected abuse and neglect, to a duty to warn and protect. As mental health professionals work

to protect their clients, they must also consider and adhere to the laws set forth by the state. For

the sake of this paper, focus will be placed upon the state of North Carolina. Specifically, so,

focus is placed upon North Carolina due to this being that state that I hope to soon become

licensed in. Prior to obtaining licensure, it is important to research, review, and understand the

laws set forth in the state in which I am pursuing licensure. Without it, I may unknowingly go

against the law while in practice and it is my duty as a mental health professional to ensure I am

well-educated and prepared to embark on my journey as a mental health professional.

The state of North Carolina states that counselors must protect confidential information and

must explain confidentiality and its limitations to all patients. For minors, the parent must also

receive informed consent and the parent, and the minor must express an understanding of

confidentiality before any treatment can take place (Howes, 2016). Under North Carolina law, all

patients treated by a mental health professional have a right to confidentiality, which prevents the

disclosure of information acquired in treating a patient. However, information regarding the

abuse and neglect of a child or adult, information relevant to coordinating treatment, and other

court compelled disclosures are exceptions to confidentiality in North Carolina (Howes, 2016).

North Carolina mandates all practicing counselors to provide a professional disclosure

statement to each client prior to mental health services. The requirements of the professional

disclosure statement align with the ACA Code of Ethics in that counselors are required to review

with clients, both in writing and verbally, the rights and responsibilities of both the counselor and

the client (NCBLCMHC, n.d.). In the state of North Carolina, privileged communication is
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referred to as “any communication between client and counselor, given in confidence and not

intended to be disclosed to third persons other than those to whom disclosure is made in the

furtherance of the rendition of professional services to the client” (NCBLCMHC, n.d.).

The state of North Carolina does not have a duty to warn or a duty to protect. However, there

is also not a law that specifically states a mental health professional is prohibited to warn

foreseeable victims of danger from a patient. Mental health professionals are neither mandated

nor prohibited a duty to warn or a duty to protect, leaving the choice up to the counselor. In the

case of Gregory v. Kilbride, the patient made numerous threats to kill his wife, but the

psychologist determined that the patient did not meet the requirements for involuntary

commitment, resulting in the patient shooting and killing his wife and himself following his

release from the hospital. The court of appeals deemed that the state of North Carolina does not

recognize a mental health professional’s duty to warn (Hill, 2017). Similarly, in the case of Moye

v. United States, the federal district court of North Carolina held that if a clinician had a duty to

warn, such a duty would not arise where the victim(s) previously knew the danger.

Although North Carolina does not have a definable duty to protect law, the state does hold

clinicians and other mental health professionals liable where the patient is under the control of

the clinician. In the case of Pangburn v. Saad, the North Carolina court of appeals held that as

long as a clinician has some control over a patient then the clinician owes a duty to foreseeable

potential victims. “Where the course of treatment of a mental patient involves an exercise of

control over the patient by a physician who knows that the patient is likely to cause bodily harm

to others, an independent duty arises from that relationship and falls upon the physician to

exercise that control with such reasonable care as to prevent harm to others at the hands of the

patient” (Mobley & Naughton, 2011). Case law imposes the duty to warn/protect when a client is
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in the physical and legal custody of a clinician, although there is no statue or legal precedent

compelling a counselor to disclose threats of violence (Mobley & Naughton, 2011).

In North Carolina, abuse is defined as “the intentional maltreatment of a child and can be

physical, sexual, or emotional in nature” whereas neglect is defined as “the failure to give

children the necessary care they need” (NCDHHS, n.d.). Reporting abuse and neglect is

mandatory in North Carolina. If it is suspected that a child is being abused or neglected, or if it is

suspected that a child died as a result of being mistreated, it must be reported to the county

department of social services (NCDHHS, n.d.). This law also applies to elders and disabled

individuals. In regard to elders and the disabled, reporting is required when there is reasonable

cause to believe that the individual is in need of protective services and is then reported to the

county department of social services in the county in which the individual resides. Failing to

report suspected abuse or neglect is deemed a class one misdemeanor (“Mandatory Reporting,”

2020).

North Carolina withholds the rules and regulations of the American Counseling Association

code of ethics. The ACA states the following in regard to confidentiality, privileged

communication, duty to warn/protect, and reporting abuse/neglect:

B.1.c. Counselors protect the confidential information of prospective and current clients, only

disclosing information with appropriate consent or with legal or ethical justification.

B.1.d. Counselors must inform clients of the limitations of confidentiality.

B.5.b. Counselors inform parents and legal guardians about the role of counselors and the

confidential nature of the counseling relationship. As mentioned earlier, mental health

professionals who fail to report suspected or known abuse/neglect are subject to a class one
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misdemeanor. Failing to uphold confidentiality can result in legal ramifications and the loss of

licensure.

Upon the completion of my research, the implications of not abiding by the laws set forth by

the state leaves me wanting more. Carefully considering the laws and the potential implications

for each makes me wonder what more could be out there. Some laws are clearer cut than others,

which leaves a sense of inconsistency and an inquisitive mind. Considering that the state of

North Carolina implements the ACA code of ethics, I find consistency between the two.

However, there is minimal information regarding privileged communication in the ACA code of

ethics, which leaves me wondering how North Carolina would compare in regard to the

privileged language state law as opposed to the beliefs of the ACA. Nonetheless, I believe that

each of the laws mentioned will present their own individual challenges. For counselors

practicing in the state of North Carolina, it is important that an understanding of state laws be

obtained so that practices are withheld by both the state and the ACA at all times.
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References

Hill, R. (2017). Psychnews. NC Psychology Board. Retrieved from

http://ncpsychologyboard.org/data/documents/June-2017-Newsletter.pdf

Howes, K. (2016). Mental health providers and privilege: What you need to know. NC Office

of Juvenile Defense. Retrieved from https://ncjuveniledefender.com/2016/07/08/mental-health-

providers-and-privilege-what-you-need-to-know/#:~:text=North%20Carolina%20also

%20provides%20a,the%20psychologist%20to%20practice%20psychology.

Mandatory reporting requirements: The elderly North Carolina (2020). Retrieved from

https://apps.rainn.org/policy/policy-state-laws-export.cfm?state=North%20Carolina&group=5

Mobley, K. & Naughton, E. (2011). Tarasoff and duty to protect in North Carolina. NC

Perspectives. Retrieved from https://libres.uncg.edu/ir/uncg/f/K_Mobley_Tarasoff_2011.pdf

NCDHHS (n.d.). About child abuse and child neglect. NCDHHS. Retrieved from

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

services/about-child-abuse-and

North Carolina Board of Licensed Clinical Mental Health Counselors (n.d.). NCBLCMHC.

Retrieved from https://www.ncblpc.org/