Teen reluctant to talk to his counselorFor therapy to be optimally effective, a person must be able to disclose their thoughts, feelings, experiences, and behaviors without fear of judgment. They must also be confident that their therapist will not share this information with third parties. The ability to be vulnerable in therapy can support a strong therapeutic alliance and can help a person recover more quickly. For minors, however, the right to privacy in therapy is limited. 

Legally speaking, people under the age of 18 do not typically have a right to confidentiality in therapy. However, some therapists ask parents to agree to the therapist’s confidentiality rules before they will treat the client. Additionally, though minors do not have a legal right to privacy from their parents, their right to privacy from third parties (employers, advertisers, etc.) is similar to that of adults. 

Why Is Confidentiality Important?

Therapeutic confidentiality is key to effective treatment for numerous reasons, including building and preserving a strong therapeutic alliance. The benefits of confidentiality include: 

  • Increasing cooperation in treatment. A child or adolescent has little reason to disclose information they don’t want shared with their parents if there is no guarantee of confidentiality. But often, the information they don’t want disclosed is the information that is most important for them to discuss in therapy. 
  • Ensuring a child gets effective treatment. If a child cannot safely disclose whatever they want, the therapist may not have enough information to know what kind of help the child needs. 
  • Protecting the child from risk of abuse or homelessness. Not all parents have unconditional love for their child. For example, some parents may abuse or disown a child for their sexual orientation or behavior. If this information is disclosed, it could make a client vulnerable to unkind or abusive treatment. 
  • Protecting the child from third parties. Confidential information can be used for a wide range of purposes—bullying, marketing, even stealing a person’s identity. So even when a minor has no right to confidentiality from a parent, they still have a right to privacy from third parties. 
  • Improving the parent-child relationship. Some parents may worry that “secrets” will undermine their relationship with their child. But when a child can openly discuss their feelings in therapy, their relationship with others, including their parents, may improve. 

Legal Protections for Minors 

A complicated web of federal and state laws, professional ethics, and statutory interpretations by various courts govern minors’ right to confidentiality in treatment. Privacy concerns are complex legal issues that rarely have a simple answer. Therapists, parents, and others who have specific concerns about confidentiality may wish to talk to an attorney knowledgeable about the laws in their state. 

In general, the right to privacy in treatment is connected to the right to consent to treatment. Because a child cannot legally consent to treatment, the parent often acts as a personal representative for the child. Most children do not have a legal right to privacy from their parents, as a parent may need certain information in order to consent to treatment. 

A parent generally has the right to request a child’s medical record. This may include a child’s diagnosis, symptoms, and treatment plan. However, the parent does not have the right to view treatment notes unless a court orders otherwise. Professionals take psychotherapy notes to analyze the contents of a conversation. The notes are for personal use rather than official documentation.

The Health Insurance Portability and Accountability Act (HIPAA) is the primary federal law governing medical privacy. It protects minors from disclosures to third parties who are not their parents. It requires health care providers, including therapists, to take reasonable steps to protect client privacy. 

Some states extend additional privacy protections to minors that go beyond HIPAA. For example, California gives minors the right to control their own health care information when they otherwise have the right to consent to care. When a state offers a child more privacy rights than the child has under federal law, a therapist must follow state law. 

In some cases, a parent may not have the right to information about their child’s treatment. Those might include: 

  • When a parent has signed an agreement to respect the confidentiality between the health care provider and the minor. 
  • When a parent has lost or given up their parental rights. For example, the biological parent of an adopted child would not typically have a right to treatment information.
  • When a court order specifically prohibits the parent from accessing the child's information. 
  • When the child is emancipated. (Child emancipation is when a minor becomes legally responsible for their own care before the age of 18.) 

In some contentious custody cases, a court may appoint a lawyer for the child—often called a guardian ad litem—to represent the child’s best interests. Depending on the case, the state, and the court’s order, that lawyer may get to determine whether and when parents can view information about mental health treatment. 

“Because I work with many high-conflict divorce families, many of the children and teens I see in therapy have their own minor's counsel. When a minor has their own attorney, this lawyer holds the privilege for the child's therapy, and they often work with me to help keep emotional safety a priority for the child's counseling. Even when a parent is pressuring me for information, I am able to refer them to the minor's counsel, who will work to protect the child’s confidentiality,” says Lois Nightingale, PhD, a marriage and family therapist from Yorba Linda, California.

Discussing Confidentiality Concerns with Youth

One of a therapist’s most important ethical duties when treating minors is to discuss confidentiality concerns with the parent(s) and the child. The therapist should be clear about the law and their own confidentiality policies. Some important topics to discuss include: 

  • The therapist's disclosure policies. Some therapists require parents to consent to a certain level of confidentiality, even when state or federal law affords the child fewer confidentiality rights. 
  • The circumstances under which a therapist would disclose information the child shared in therapy. 
  • The importance of confidentiality in therapy. When parents understand that confidentiality is key to effective treatment, they may be more willing to respect their child’s need for privacy. 
  • The steps the therapist takes to protect the child’s privacy. In most cases, a therapist will provide the child and their parents with a HIPAA disclosure statement that offers details about how and when treatment information may be disclosed to others. 
  • The benefits of open communication between a parent and child. Many children do not discuss challenging topics with their parents because they fear judgment or punishment. When parents understand the importance of open communication, they may be less likely to overreact. This can encourage better parent-child relationships. 

Mandated Reporting

When a therapist believes a child is in danger, they typically have a legal duty to disclose certain information, even when the child otherwise has a right to confidentiality. For example, mandated reporters must disclose suspected child abuse to child protective services. Likewise, a therapist must act to protect the child if they believe the child may engage in self-harm or hurt others. 

Even when a therapist must act to protect a child, the therapist must use a conservative approach, disclosing only that information which is absolutely necessary and disclosing only to the appropriate person or persons. For example, if a therapist fears a child may be planning a school shooting, the therapist may be required to notify police or school authorities. However, the therapist would still be required to protect the confidentiality of other treatment details, such as the child’s sexual orientation or history of abuse. 

The duty to warn others when a client poses an imminent threat can present several ethical dilemmas. Therapists should ensure they understand state laws and their licensing board’s ethics rules. Knowledge about one’s responsibilities can make decisions easier during a crisis.

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References: 

  1. Behnke, S. H., & Warner, E. (2002). Confidentiality in the treatment of adolescents. Monitor on Psychology, 33(3), 44. Retrieved from https://www.apa.org/monitor/mar02/confidentiality
  2. Does a parent have a right to receive a copy of psychotherapy notes about a child's mental health treatment? (2017, September 12). Retrieved from https://www.hhs.gov/hipaa/for-professionals/faq/2094/does-parent-have-right-receive-copy-psychotherapy-notes-about-childs-mental-health-treatment.html
  3. English, A., & Ford, C. A. (2004). The HIPAA privacy rule and adolescents: Legal questions and clinical challenges. Perspectives on Sexual and Reproductive Health, 36(2), 80-86. Retrieved from https://www.guttmacher.org/journals/psrh/2004/hipaa-privacy-rule-and-adolescents-legal-questions-and-clinical-challenges
  4. Hanson, K. (2018, October 12). Mental health professionals' duty to warn. Retrieved from http://www.ncsl.org/research/health/mental-health-professionals-duty-to-warn.aspx
  5. McNary, A. (2014). Consent to treatment of minors. Innovations in Clinical Neuroscience, 11(3-4), 43-45. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4008301