When Do Therapists Have to Disclose Threats?

Therapy is considered a safe environment where patients can explore emotions and share their thoughts and feelings. Because what is said is held in confidence, patients feel free to tell their therapist things they might be afraid to admit to a partner, friend, or family member. But is everything you say during a session kept strictly private? Can your therapist share your deepest, darkest secrets with someone else? The answers to those questions hinge on exactly what you expressed.

Just like the attorney-client relationship, the doctor-patient relationship is protected under the law. Per HIPAA, mental health professionals have a duty to maintain confidentiality. So, what you say to a therapist, should - in essence - stay between you. This doctor-patient privilege, however, is not absolute. In certain circumstances, therapists may be required to break confidentiality, as the law imposes upon them the duty to disclose threats.

Types of Threats Mental Health Professionals Must Divulge

There are two main types of threats therapists usually are mandated to report: self-harm and harm to others.

When a patient reveals they are contemplating suicide or hurting themselves, the seal of confidentiality is broken. The therapist now has an obligation to take steps to intervene. That intervention could include contacting emergency services or arranging for hospitalization. 

If a patient tells a therapist that they plan on harming an identifiable person, the therapist is generally obligated to report that admission. This obligation is referred to as a “duty to warn.” For threats that rise to the level of murder, the cloak of confidentiality is pierced and the therapist must disclose the threat. Revelations of an imminent attack or event also require the therapist to disclose in most states. 

Type of Statements that Trigger the Disclosure Requirements

When self-harm is involved, the confidentiality breach and duty to disclose are triggered by “imminent” danger. What rises to the level of imminent? The patient:

●      Clearly states that they want to hurt or kill themselves;

●      They have a plan of action to do so; and

●      They have decided when they will do it.

The imminent danger flag also applies to threats to others. Therapists have to disclose if they believe the patient poses an immediate and serious threat to someone else, i.e. that person is in potential danger.

To avoid devastating consequences and liability, therapists need to familiarize themselves with the scope of confidentiality and when it must be breached as per the locations where they practice. New Jersey, for example, has a codified duty to warn. According to N.J.S.A. 2A:62A-16:

“b. A duty to warn and protect is incurred when the following conditions exist:

(1) The patient has communicated to that practitioner a threat of imminent, serious physical violence against a readily identifiable individual or against himself and the circumstances are such that a reasonable professional in the practitioner’s area of expertise would believe the patient intended to carry out the threat; or

(2) The circumstances are such that a reasonable professional in the practitioner’s area of expertise would believe the patient intended to carry out an act of imminent, serious physical violence against a readily identifiable individual or against himself.”

Under this law, the therapist must do one of the following:

●      Make arrangements for the patient to be voluntarily admitted to a psychiatric unit, hospital, or facility

●      Start procedures for involuntary commitment

●      Advise law enforcement of the patient’s threat and the identity of the intended victim

●      Warn the intended victim

●      If the patient or intended victim is under the age of 18, warn the parents of the patient/victim

The National Conference of State Legislatures, has compiled a List of State Duty to Protect/Warn Laws, which can shed light on specific requirements.

Being knowledgeable of state laws can help provide a better understanding of disclosure mandates, but circumstances are not always clear cut. In such an instance, it is wise to consult with an attorney on the course of action that should be taken.

Do not hesitate to contact us at 973.707.3322 or LFarber@LFarberLaw.com.