Whether it’s a single visit or an ongoing series of sessions, millions of Americans will see a psychologist at some point during their lives. The reasons for seeking therapy are as varied as the population itself — but regardless of the underlying reason for the sessions, all professional mental health providers are bound rigorous confidentiality standards under the HIPAA Privacy Rule (Health Insurance Portability and Accountability Act). But just how far does that confidentiality go? If a patient tells their therapist information about criminal activities, does the therapist have a legal obligation to inform the police? Salt Lake City criminal defense lawyer Darwin Overson explores the limits of the therapist-patient privilege.
Are Psychologists Allowed to Disclose Patient Information?
The Sopranos, a tremendously popular show at the time of its release, frequently depicted therapy sessions between a Mafia member and his psychologist. But what if The Sopranos was set in real life instead of a fictional universe, and actual laws took precedence over creative license? Would the content of those sessions be divulged to criminal investigators?
It’s a fascinating topic that touches on the intersection between defendants, attorneys, healthcare professionals, and law enforcement. It also has significant legal implications for untold numbers of Utah residents.
The American Psychological Association (APA) states the following on its website:
Confidentiality is a respected part of psychology’s code of ethics… Laws are also in place to protect your privacy… The HIPAA Privacy Rule is designed to be a minimum level of protection. Some states have even stricter laws in place to protect your personal health information.
Utah’s therapist-patient confidentiality laws are partially located at Utah Code §58-61-602 (Occupations and Professions, Psychologist Licensing Act). This portion of code states the following:
A psychologist under this chapter may not disclose any confidential communication with a client or patient without the express consent of: (a) the client or patient; (b) the parent or legal guardian of a minor client or patient; or (c) the authorized agent of a client or patient.
If you read only that far, it sounds as if Utah’s confidentiality laws are completely air-tight. However, if you keep reading through the same section in the Utah Code, you’ll see there are also a few exceptions where the normal confidentiality laws do not apply.
When Are Therapists Required to Break Confidentiality?
In Utah, psychologists are not bound by confidentiality laws in cases where “the disclosure is part of an administrative, civil, or criminal proceeding and is made under an exemption from evidentiary privilege under Rule 506, Utah Rules of Evidence.” In other words, the therapist can come forward to law enforcement if the patient says something which (1) involves a criminal case, and (2) is exempt from the provisions of Rule 506, which deals with the therapist-patient privilege.
Under Rule 506 (Physician and Mental Health, Therapist-Patient), patients normally have the right to refuse to share information they tell their therapist. They also have the right to stop other people from sharing that information.
However, these rights stop applying “in any proceeding in which that condition is an element of any claim or defense” — namely, in any criminal proceeding where the information is relevant to the charges themselves, or to the defense strategy being used. It does not matter whether the proceeding pertains to sex offenses, drug crimes, white collar crimes, or any other type of offense — the therapist is uniformly bound to make the required disclosure to the authorities.
This concept is very similar to the husband-wife privilege. Typically speaking, husband-wife privilege means that spouses cannot be compelled to testify against each other. However, this privilege dissipates the moment it is abused to conceal or aid the commission of a crime.
Going back to the APA, there are also a few additional, specific scenarios where psychologists are required to disclose patient information. For example, the APA notes that therapists must make disclosures if the patient discusses:
- Child abuse or neglect.
- The abuse or neglect of an elderly person or mentally impaired adult.
Utah’s Rules on When a Psychologist Must Report to Police
But those aren’t just the APA’s rules: they also mirror Utah’s laws. Utah Code §58-61-602(2)(a) states that psychologists must report information about those very same issues.
In fact, Utah’s legislation takes child abuse reporting requirements one step further still: §62A-4a-411 makes it a crime for therapists and other professionals to deliberately fail to report “suspected abuse, neglect, fetal alcohol syndrome, or fetal drug dependency.” This is considered a Class B Misdemeanor, which is punishable by $1,000 and up to six months in jail.
Finally, Utah’s laws also require psychologists to report cases where the patient has a communicable disease that could spread to and harm the general public, an issue which is not addressed by the APA.
If you’ve been charged with a felony or misdemeanor in Utah, or if you’re concerned your legal rights were violated by the police during criminal proceedings, you need an experienced criminal defense lawyer on your side. To set up a free and private legal consultation, call attorney Darwin Overson right away at (801) 758-2287.