Privileged Information is a legal protection against being forced to break a promise or expectation of confidentiality in legal proceedings between lawyers and their clients and is not applicable to the counsellor-counsellee relationship. There are therefore the following general and legal exceptions to confidentiality:
Client waiver of privilege
When the client gives verbal/written consent to the counsellor to:
- Divulge confidential information to third parties
- Write reports (psychological report, referral request, medical insurance claims, etc)
- Consult and case conference with other mental health practitioners or with a supervisor
Death of the client
A deceased client’s privilege can be waived, but counsellors will protect the confidentiality of deceased clients according to legal requirements or agency policies.
The duty to warn, to protect, and to report
Counsellors are legally required to breach confidentiality in order to warn or protect someone in danger, and where applicable, to report these situations to the responsible authorities. Counsellors must take action:
- When they suspect abuse or neglect of children, older people, or other persons presumed to have limited ability to care for themselves
- To protect clients who pose a danger to themselves
- When a client poses a danger to others
- When a client has a fatal, communicable disease and the client’s behaviour is putting others at risk.
Counselling multiple clients
Confidentiality cannot be fully guaranteed in groups, couples, or family counselling, but counsellors will explain the importance of confidentiality to all participants.
Counselling minor or legally incompetent clients
Counsellors cannot give the same assurance of confidentiality to minors as they do to other clients because their parents/guardians control their legal rights. Parents/guardians must consent to the counselling on behalf of the minor (divorced parents with joint custody have to both consent).
Although parents/guardians rightfully have access to all information pertaining to the minors’ counselling, they can be requested to voluntarily waive it in favour of providing the minor with some sense of counselling confidentiality.
Other Legal Exceptions
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- Counsellors must disclose confidential information when ordered to do so by a court
- Counsellors may reveal confidential information when it is necessary to defend themselves against ethical and/or legal charges brought by clients. Clients waive their privilege when they bring a lawsuit against a counsellor
- Privilege is normally waived in civil commitment proceedings
- During emergencies involving the client, counsellors can breach confidentiality to provide emergency personal in the best interest of the client.