Running head: CONFIDENTIALITY 1

Confidentiality, Mandated Reporting, and Duty to Protect

Hannah Brown

Wake Forest University

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

Dr. Jamie E. Crockett & Nicole Moody

CONFIDENTIALITY 2

Confidentiality, mandated reporting, and duty to warn are three important aspects of the

role of a counselor. Understanding the law behind each of these will assist the counselor in

following ethical and legal guidelines. Before realizing that counseling was the path I wanted to

go down, I was a pre-law major in my undergraduate studies. Researching the law surrounding

these topics, while time consuming and can be somewhat intimidating, is very interesting to me

and I look forward to learning more about each of them. I chose the state of Virginia to research

for this paper as it is the state that I currently live and attend my practicum in. Virginia will also

potentially be the state that I begin my residency in if we do not move beforehand. As a future

counselor in the state of Virginia, I want to make sure that I am knowledgeable and understand

the law behind these topics so that I can assist my clients properly. By not fully understanding

the law in the state that we practice in, we can set ourselves up for failure, ethical dilemmas, and

legal issues.

Confidentiality is one of the biggest aspects of the counseling profession. It is important

because if the client does not feel that they can trust the counselor to keep their information

private and confidential, they may not be truthful with the counselor, therefore hindering the

counseling process. The Administrative Code of Virginia 12VAC35-115-80 states that all

identifying information about a client is to remain confidential unless the counselor is required to

disclose this information in a court of law. Within the clients file, there must be written informed

consent stating that the client allows the disclosure of their personal information prior to the

disclosing of said information. When speaking with new clients, and throughout your time with a

client, the counselor should explain confidentiality and it’s limits thoroughly. This way the client

will understand their rights as well as the ways in which that confidentiality may be broken.
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These limits to confidentiality include emergencies in which the counselor is trying to

prevent injury or death of the client or other specified person or when speaking with other health

care providers to construct a health plan for the client. Limits also include court proceedings in

which the client’s mental health is in question or if a subpoena is served. With court proceedings,

a counselor may also break confidentiality when speaking with their own legal counsel and

anyone working on their behalf. The Code 12VAC35-115-80 encompasses many other limits of

confidentiality including human rights committees, evaluation of provider performance,

investigations, protection agencies, historical research, no living individuals to give authorization

of disclosure, protection of public safety, the inspector general, and search warrants

(Administrative Code, 2014).

Within Code 12VAC35-115-80, the protection of public safety talks about the duty to

warn and/or protect. It states that the counselor has a duty to warn and/or protect if the client

makes a specific threat to seriously injure or cause death to an identified individual and the client

has the means and intent to carry out this threat. The counselor may then take the necessary steps

to prevent the client from harming this individual.

Moving on to mandated reporting of abuse and neglect of children and adults.

Researching this topic was by far the most difficult as it brought about thoughts of children being

abused. As a mother this was hard to think about. The document detailing the rules, regulations,

and laws surrounding abuse and neglect was also the longest document I came across during this

entire research process. The statutes of the Virginia Department of Health professions (V.D.G) §

63.2-1509 (2022) states that any mental health professional is required to report suspected abuse

and neglect of children to the local department of the county or city in which the child resides, or

the neglect has occurred. The neglect may also be reported to the department’s toll-free child
CONFIDENTIALITY 4

abuse and neglect hotline. In a professional setting, report the neglect to the head of the

institution you are working for, and that individual will submit the report. Once a report is made,

the head of the institution will notify the employee of all details involved in the submission and

all communication moving forward will go directly to the employee who made the initial report

(Board of Counseling Laws and Regulations, 2022).

V.D.G § 63.2-1509 (2022) section B states that a discovery must be made by a health

care provider within 6 weeks of the birth of a child if there is suspected neglect or abuse of an

infant due to substance exposure. This may include a child born affected by substance abuse or

experiencing withdrawal symptoms. Also covered is a diagnosis made within four years of the

child’s birth, stating that the child has an illness, disease, or condition related to the use of

substance or alcohol during pregnancy (Board of Counseling Laws and Regulations, 2022).

Any individual who comes forward with a report or information presented in the sections

listed above will be immune from any civil or criminal liability, administrative penalty, or

sanction, unless the individual acted in bad faith or with malicious intent. V.D.G § 63.2-1509

(2022) section D states that if an individual fails to file a report within 24 hours of suspecting

neglect, they will be fined no more than $500 for their first failure and no less than $1000 for any

subsequent failures. If an individual has knowledge of rape, sodomy, or sexual penetration but

fails to report the abuse, they will be found guilty of a Class 1 misdemeanor (Board of

Counseling Laws and Regulations, 2022).

The statutes of the Virginia Department of Health professions (V.D.G) § 63.2-1606

(2022) state that any mental health professional is required to report suspected abuse, neglect, or

exploitation of adults to the local department or adult protective services hotline. If working in a

professional setting, the individual may notify the person in charge of the institution of the
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suspected neglect, who will then report the information to the appropriate department. Criminal

investigative reports provided by law-enforcement agencies will not be publicly disclosed or

further distributed. However, these reports may be disclosed to the Adult Fatality Review Team

as provided in § 32.1-283.5 or to a local or regional review team as provided in § 32.1-283.6

(Board of Counseling Laws and Regulations, 2022).

V.D.G § 63.2-1606 (2022) section C states that if an individual suspects that an adult has

been exploited financially, they may report it to the local department of the county or city in

which the adult resides, or the exploitation has occurred. V.D.G § 63.2-1509 (2022) section E

states that any person involved in the process of providing information or testifying on the

individual’s behalf is immune from any civil or criminal liability unless they acted in bad faith or

with malicious intent. V.D.G § 63.2-1509 (2022) section F states that an employer will not

prohibit a mandated reporter from reporting directly to the local department and that all

employers whose employees are mandated reporters are required to notify employees of this

requirement upon hiring (Board of Counseling Laws and Regulations, 2022).

V.D.G § 63.2-1509 (2022) section G and section H state that if an individual over the age

of 14 years of age makes false accusations about their neglect, they will be found guilty of a

Class 4 misdemeanor. Failure to report the neglect will result in a fine of no more than $500 with

any subsequent failures to be fined no more than $1000. Lastly, V.D.G § 63.2-1509 (2022)

section I states that if an individual suspects that an adult has died due to abuse or neglect, they

can immediately report this to the medical examiner and law-enforcement agencies even without

a legal death certificate (Board of Counseling Laws and Regulations, 2022).

Lastly, when we think about privileged communication, we think about the words that

our clients say to us and how they trust us to keep this information private. It is a privilege for us
CONFIDENTIALITY 6

to be trusted with this personal information. The Code of Virginia § 8.01-400.2 states that unless

prior consent is given by the client, that no licensed mental health professional will be required

to break confidentiality and provide testimony as a witness in any civil action. However, there

are exceptions to this. If the clients mental or physical condition is in question or if the court

believes the disclosure to be necessary for the court proceedings, then this information will no

longer be privileged. At all times though, this information will not be considered privileged in

circumstances involving child abuse or neglect (Code of Virginia, 2022).

If I were to put myself in the role of citizen and client, I believe that the laws of the state

of Virginia would protect me. While reading through the laws and regulations, it seems to me

that the state of Virginia does everything it can to protect the vulnerable and make sure that they

are taken care of. I also believe that these laws and regulations do everything they can to make

sure that professionals and their rights are also protected. I found these laws to be consistent with

the ACA Code of Ethics. I think that just like the ACA Code of Ethics, these laws want to

prevent harm to all parties. They wanted to ensure that “clients” and counselors are protected so

that it is the best outcome for all parties.

One of my concerns regarding these laws is when it comes to the reporting of abuse or

neglect of a child. If in a professional setting, the employee submits the report to their superior,

who then reports it to the proper authority. While I do understand this, and it the best way to

handle it, I am more concerned about once the report is made. The law states that once the report

is made, the superior then hands all information back over to the employee who takes over the

communication from there on. I feel like this could be confusing for multiple parties as the

information is going through a multitude of different individuals. I do not think that these laws

and regulations will be difficult to uphold as they are straightforward and keep the client in mind
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when it comes to “do no harm”. As counselors this is what we should be striving for when

meeting with clients.

Researching confidentiality, mandated reporting, privileged communication, and duty to

warm proved to be very interesting. These laws are so important when it comes to the welfare of

our clients as well as the counselors themselves. The state of Virginia does a good job of keeping

both client and counselor protected through difficult times. The state also makes sure that the

individual who comes forward with the information is immune to any criminal or civil liability.

This ensure that professionals do not have to be worried about implications after reporting abuse

or neglect. Which hopefully, will help encourage more to come forward if they suspect that the

abuse or neglect is happening.

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References

Administrative Code. (2014). 12VAC35-115-80. Confidentiality. Virginia Law. Retrieved from

https://law.lis.virginia.gov/admincode/title12/agency35/chapter115/section80/

Board of Counseling Laws and Regulations. (2022). Legal Requirements to Report Child Abuse

and Adult Abuse. Virginia Board of Counseling. Retrieved from

https://www.dhp.virginia.gov/dhp_laws/Legal%20Requirements%20to%20Report

%20Abuse.docx

Code of Virginia. (2022). § 8.01-400.2. Communications Between Certain Mental Health

Professionals and Clients. Virginia Law. Retrieved from

https://law.lis.virginia.gov/vacode/title8.01/chapter14/section8.01-400.2/