KNOW THE LAW_SAMANTHA ZAITZ

CNS 780 Assignment 3.1: Know the Law

Samantha Zaitz

Wake Forest University

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California Law & Confidentiality

Introduction

As a future counselor, it is imperative that I am familiar with the laws surrounding my

professional responsibilities given that so many areas of the counseling profession are impacted

by the law (Remley & Herlihy, 2020). Furthermore, when it comes to upholding ethical

standards, many of the decisions I will make throughout my career as a counselor will be

dependent on the legal ramifications of my actions (Remley & Herlihy, 2020). As I plan on

becoming a Licensed Professional Clinical Counselor (LPCC) in the state of California, it is

essential that I become particularly knowledgeable about the laws governing privileged

communication, duty to warn and reporting abuse or neglect.

Privileged Communication & Duty to Warn

In the Business and Professions Code of California, code 4999.84 (2009) (Ca. Bpc. 4999.84

§ 4999.80-4999.91) states that anything communication between a licensed clinical counselor

and a client is deemed privileged communication (Ca. Bpc. 4999.84 § 4999.80-4999.91). That

being said, § 1010-1027 of the Evidence Code of California (1965, 1970) outlines the various

circumstances in which privilege and confidentiality do not apply and client consent for release

of information is not required for information or records. These codes state that

privilege/confidentiality can be broken if there is a court order for the psychotherapist to release

confidential information, if the patient’s mental and/or emotional condition is brought in to a

legal proceeding, if the therapist is hired by a patient to help aid them in their plan to commit a

crime or their plan to escape arrest after committing a crime, if the therapist reasonably believes

that the patient is a danger to property, themselves or someone else and if the patient is under 16
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and the therapist has reason to believe that disclosing privileged information serves the child’s

best interest (Ca. Bpc. § 1010-1027).

In addition to the above-mentioned laws, code 56.10 in in the Civil Code of the State of the

State of California (2022) (Ca. Civ. 56.10 § 56.10-56.16), outlines the disclosure of medical

information and further exceptions to privileged information, both of which tie into the

counselor’s duty to warn and protect. This law states that psychotherapists may disclose

information when it is required by law and consistent with ethical practices, specifically when

they believe disclosure is necessary in order to prevent or lessen serious harm to a foreseeable

victim (Ca. Civ. 56.10 § 56.10-56.16). This law also states that disclosure may be necessary if

the information obtained poses a threat not just in terms of a potential victim’s safety, but also

their health (Ca. Civ. 56.10 § 56.10-56.16). In either of these instances, a disclosure of pertinent

information is acceptable to the potential victim or anyone who is able to help prevent harm to

them (Ca. Civ. 56.10 § 56.10-56.16). Although, there is no code that specifically addresses

breaking confidentiality when it comes to communicable diseases, such as HIV, this law

explicitly addresses the health of a potential victim, and the following laws and regulations

address the counselor’s duty to warn in California.

The court case Tarasoff v. Regents of the University of California, 17 Cal. 3d 425 (1976), is

the notable court case that led to 43.92 § 43-53.7 of The Civil Code of the State of California

(2012), which is referred to as California’s duty to warn law (Tarasoff v. Regents of the

University of California, 1976; Remley & Herlihy, 2020). This law states that anyone who falls

under the title of a psychotherapist has a duty to warn potential identifiable victims and/or law

enforcement of a significant threat of violence against them (Ca. Civ. 43.92 § 43-53.7).

Furthermore, this law emphasizes that action will be taken against a therapist if a patient has
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explicitly communicated a serious physical threat to an identifiable victim and the therapist fails

to warn law enforcement or the victim themself (Ca. Civ. 43.92 § 43-53.7). In other words, if the

therapist is unaware of a patient’s impending violent behavior, then the therapist is not liable for

failing to protect a future victim (Ca. Civ. 43.92 § 43-53.7).

Suspected Abuse & Neglect

The California Penal Code, specifically article 2.5, referred to as the Child Abuse and

Neglect Reporting Act (2000) and code 11166 (2022) (Ca. Penal 11166 § 11164-11174.3), states

that mandated reporters (including professional clinical counselors) must make a report to an

appropriate agency, which includes the police or sheriff’s department or the state department of

social services office (Child Protective Services), if the mandated reporter obtains knowledge

about, sees or reasonably suspects that a child or minor (under 18 years old) is the victim of

abuse or neglect (Ca. Penal 11166 § 11164-11174.3). The mandated reporter must make the

report within 36 hours of obtaining this the information about the child (Ca. Penal 11166 §

11164-11174.3). The mandated reporter must initially attempt to make the report via telephone

and then follow up by submitting the written form provided by the Department of Justice as soon

as possible (Ca. Penal 11166 § 11164-11174.3). However, if the child or minor is experiencing

this abuse or neglect while under the care of the State Department of Social Services, a report to

the office with jurisdiction over the facility must be made within 24 hours (Ca. Penal 11166 §

11164-11174.3). When reporting the incident, the mandated reporter must include their name,

contact information and business address, in addition to the child’s name, current location and/or

address, schooling information, the suspected abuser’s (parent or guardian’s) name and contact

information, as well as their address and any other personal information that may be of

significance (Ca. Penal 11166 § 11164-11174.3). In the state of California, sexual exploitation is
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also covered under this law, which means a mandated reporter must also file a report if they

become aware of a photographic print or electronic medium in which a child or minor is

displayed in obscene sexual conduct (Ca. Penal 11166 § 11164-11174.3).

In the state of California, code 15630 of the Welfare and Institutions Code (2021) (Cal.

Wic. 15630 § 15630-15632) states that mandated reporters are also required to file a report if

they become aware of, reasonably suspect or witness an incident in which an elder (60 years old

and above) or dependent adult is a victim of abuse or neglect (Cal. Wic. 15630 § 15630-15632).

The law states that the abuse or neglect must be reported by phone to either the local law

enforcement agency and/or Adult Protective Services and/or submitted online through the

authorized and confidential internet reporting tool (Cal. Wic. 15630 § 15630-15632). In the event

that the suspected physical abuse results in serious injury, the authorities must be contacted

within 2 hours of learning of the incident or within 24 hours if there is no occurrence of serious

injury (Cal. Wic. 15630 § 15630-15632). Additionally, the mandated reporter must also follow

up the phone report with a written or online report within 2 business days (Cal. Wic. 15630 §

15630-15632). Lastly, if the suspected or alleged abuse and/or neglect occurred while the victim

is under the care of or living at a state mental hospital or care center, the mandated reporter must

make the report to the local law enforcement agency within 2 hours of learning of the

information (Cal. Wic. 15630 § 15630-15632).

Discussion & Conclusion

When putting my role as a counselor aside and reflecting on the laws that I researched

from the perspective of a citizen and client I do feel that they are totally fair and within reason.

As someone who cares deeply about other people, I feel relieved knowing that there are laws in

place to protect the safety of others. That being said, I do wonder how some of these laws might
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get in the way of the therapeutic process. If patients withhold information from their therapist out

of fear of the legal consequences, then they would not be receiving the help they genuinely need.

For example, if someone had suicidal ideation, but went out of their way to keep these thoughts

from their therapist, this would significantly lower the efficacy of therapy and their lack of

honesty would cloud the work that is being done.

As a counselor, I found these laws to be mostly straightforward, just and easy to uphold.

The laws surrounding confidentiality are not only beneficial for the client and other citizens, but

also protect the therapist in most situations. I find it comforting to know that so long as I am

aware of these laws and follow them accordingly, I am covering my bases and protecting myself

from malpractice and/or legal repercussions. On the other hand, one aspect of these laws that

makes me uneasy is the fact that life-threatening, communicable disease is not explicitly

addressed in the duty to warn law. I would like to do additional research to see how others

previously navigated situations where they learned of a client knowingly putting someone at risk

without the victim’s knowledge. Furthermore, one aspect of the law that I was surprised by is the

fact that there is a larger window of time that a therapist has to report instances of child or minor

abuse (36 hours) than they do elder or dependent adult abuse (24 hours). As a citizen, client, and

therapist, I would think that the therapist would have the same amount of time if not less, given

the fact that the victims are children.

Ultimately, I found the laws that I researched to be consistent with the ACA Code of

Ethics (2014), especially when it comes to the foundational principals of nonmaleficence,

beneficence, fidelity and veracity (ACA, 2014). In my opinion, the laws surrounding mental

health professionals and mental health services in California prioritize and honor

nonmaleficence, which is at the heart of the counseling profession. When it comes to

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psychotherapists practicing in California especially, my research has shown me that knowledge

and understanding of the law is key. It is my understanding that California’s laws, especially

when it comes to duty to warn and protect, can be vastly different from the laws in other states,

which makes awareness of and insight into the law that much more important. Subsequently, I

now have a deeper appreciation for the fact that California requires additional coursework and

exams regarding the law prior to obtaining licensure.

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References

American Counseling Association. (2014). 2014 ACA code of ethics.

https://www.counseling.org/docs/default-source/default-document-library/2014-code-of-

ethics-finaladdress.pdf

Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 131 Cal. Rptr. 14, 551 P.2d

334 (1976). https://scholar.google.com/scholar_case?

case=263231934673470561&q=17+Cal.

+3d+425+&hl=en&as_sdt=1ffffffffffffffffffffffffffffffffe000000000000001f000001ffffffec

fff87fe3fffffff00108000000000002004

The Business and Professions Code of California. (2009). 4999.84 § 4999.80-4999.91. Retrieved

March 25, 2023 from: https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?

lawCode=BPC&division=2.&title=&part=&chapter=16.&article=5.

The Civil Code of the State of California. (2012). 43.92 § 43-53.7. Retrieved March 25, 2023

from: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?

lawCode=CIV&sectionNum=43.92.

The Civil Code of the State of California. (2022). 56.10 § 56.10-56.16. Retrieved March 25,

2023 from: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?

sectionNum=56.10.&lawCode=CIV
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The Evidence Code of California. (1965, 1970). § 1010-1027. Retrieved March 25, 2023 from:

https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?

article=7.&chapter=4.&division=8.&lawCode=EVID&part=&title=

The Penal Code of California. (2022). 11166 § 11164-11174.3. Retrieved March 25, 2023 from:

https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?

lawCode=PEN&division=&title=1.&part=4.&chapter=2.&article=2.5.

The Welfare and Institutions Code of California. (2021). 15630 § 15630-15632. Retrieved March

25, 2023 from: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?

sectionNum=15630.&lawCode=WIC

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

Pearson Education, Inc.