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Confidentiality and Mental Health Referrals: Privacy Laws and Duty of Care

Author:
Jemma Strain
Jemma Strain
B.S. Psychology
Editor:
Emma Loker
Emma Loker
B.S.
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Opening up to a mental health professional about problems can be a big concern for children and teenagers. They might be unsure about what professionals will do with the information they tell them or worry that it will be shared with family, teachers, or even friends. 

With such a huge barrier to receiving much-needed treatment, how can teenagers enter therapy confidently knowing that what they say will be kept private? 

Fortunately, childrens’ and teenagers’ privacy is protected by law. This means that what they say in therapy won’t be repeated to anyone else. However, confidentiality can be complicated. For this reason, it’s important that teenagers, parents, and professionals understand privacy laws and what it means for the duty of care. 

Professional mental health advice can answer any questions you may have about confidentiality, but this article can also help by explaining:

  • What mental health confidentiality for children is
  • Duty of care and confidentiality in mental health referrals
  • Understanding HIPAA Privacy Rules and mental health treatment
  • When to share mental health information for minors
  • How to navigate confidentiality issues with your child’s care
  • Legal rights of parents in mental health care for children
Confidentiality and Mental Health Referrals

What Is Mental Health Confidentiality for Children?

Mental health confidentiality for children means that information children and teens share in treatment will be kept private and secure. Confidentiality in this context is considered to be a human right and necessary for successful recovery.1

Information that is protected under confidentiality rights includes:2

  • Information about diagnoses and treatment 

  • Conversations in therapy sessions

  • Notes a mental health professional has written during therapy sessions

  • Information included in medical records

However, there are certain circumstances in which mental health professionals are required to share information. Mental health rights can vary from state to state, but under privacy rules, parents are typically allowed to access their child’s medical records if they are under the age of 18. Yet, there are three exceptions to this rule, including:2

  • When mental health treatment is ordered by a court

  • If a parent agrees that a mental health professional and their child can have a confidential relationship

  • When a minor doesn’t require the consent of their parent by state law

Aside from sharing information with parents, there is another important situation in which a mental health professional will break confidentiality. When a child talks about harming themselves or someone else.  

If you’re unsure what your or your child’s confidentiality rights are in your state, it can help to read up on relevant information. There are a variety of online resources and mental health guidance available to you. 

Duty of Care and Confidentiality in Mental Health Referrals

All healthcare professionals and institutions, including outpatient and residential mental health programs, have to ensure the security, privacy, and protection of patient’s healthcare information. In fact, there is a code of ethics that mental health professionals follow to ensure they are consistently professional and acting in their client’s best interest – and this includes confidentiality.3

In previous years, healthcare workers were allowed to gather patient data for research to better understand the needs of people within the healthcare system. This data only left out the patients’ names. However, this is no longer allowed. Once a new set of rules around privacy were created – the Health Insurance Portability and Accountability Act (HIPAA) – patient medical information was kept secure.3

To help you better understand the duty of care and confidentiality in mental health referrals, it may help to discuss the guidelines the HIPAA Privacy Rules put in place.

Understanding HIPAA and Mental Health Treatment for Children

Many teenagers report that the sharing of their private information is one of the biggest barriers to their willingness to receive mental health treatment.4

The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule protects the rights of anyone needing mental health treatment and what is done with their health information. This includes how it is used and disclosed by insurance and healthcare providers. 

What this information means is that the HIPAA Privacy Rule allows people to trust healthcare professionals to not share their sensitive information, especially regarding mental health issues. However, this privacy rule also recognizes that there are situations in which professionals are ethically obliged to share information to protect the safety of a teenager or someone else. These circumstances ensure that a child receives the best protection and treatment for their needs. 

However, the balance between preserving privacy and sharing information is carefully considered, including when healthcare providers should…5

  • Communicate with a patient’s family members or others involved in their care
  • Share with family members of the patient when they are an adult
  • Share with family members when the patient is a minor
  • Think about a patient’s ability to agree or object to sharing of their mental health information
  • Include family members or others in coping with a patient’s inability to adhere to medication or therapy
  • Consider the information that family members share about their loved one’s needs and wants in mental health treatment
  • Share concerns with family members, law enforcement, or other professionals when a patient poses a safety risk to themselves or someone else
  • Discuss the release of patients in inpatient treatment with law enforcement

When to Share Mental Health Information for Minors

Although there are HIPAA Privacy Rule guidelines for when a patient’s mental health information is shared, minors receiving treatment pose unique needs and complex confidentiality rights. Therefore, it’s important for parents and professionals to understand when to share mental health information for minors. 

As mentioned, each state within the U.S. has specific confidentiality laws. For example, in some states, parents have the right to access their child’s medical records if they’re a minor. However, in other states, a minor can object to this sharing of information. Additionally, if a court or mental health professional determines that giving over medical records to parents isn’t in a child’s best interests, they might withhold this information.6

Further, the rights of minors regarding confidentiality can fall under two categories:1

  1. Whether the minor is considered to be a “mature” minor or is emancipated. In these cases, the minor will be allowed to consent to their own treatment or sharing of information
  2. The type of information that is being requested by people other than the minor receiving treatment. For example, sensitive information about emergency care and medical or mental health services 

However, in some situations, mental health professionals will have to share information without a minor or parent’s consent. This is called a “Duty to Protect” and these circumstances include:7

  • If they suspect that a minor is considering hurting themselves or someone else. This includes occasions in which they talk about     self-harm or suicide. 
  • Believing that there are signs of ongoing domestic or sexual abuse or neglect. This circumstance does not include abuse or neglect that happened in the past and is not continuing.
  • If they receive a court order, such as from a mental health tribunal, as a minor’s ability to be released from inpatient care may be under legal dispute. 
 

Additionally, if a minor’s healthcare is covered by insurance, a mental health professional will likely need to share medical records with these companies. Insurance companies are also obliged to respect confidentiality under the HIPAA Privacy Rule, so this information will not be shared further. A mental health professional will also explain this to a family. 

How to Navigate Confidentiality Issues With Your Child’s Care

Minors typically can’t consent to their own mental health treatment – but there are exceptions to this rule. As discussed, if a minor is deemed to be “mature,” they may be able to consent for themselves. So, even though the law can be very “black and white,” confidentiality issues in your child’s care might not be. 

However, the general rule of thumb in mental health care for minors is that people under the age of 18 cannot give informed consent about their treatment – and there are few exceptions to this rule. There’s a concept called “Gillick competence” which outlines a minor’s inability to make decisions about their treatment, but mental health professionals also use it as a guideline for discussing confidentiality.8,9

Therefore, as a parent, you can also use these guidelines to navigate confidentiality issues with your child. For example, you could explain confidentiality in a way that makes sense to them, such as:10

  • Telling them that information will be kept “secret” between them and their mental health professional
  • That their doctor or therapist might have to tell you some things about their treatment, but that conversations in therapy sessions will be kept private
  • That if their doctor or therapist thinks that they’re in danger, they might have to tell someone 

Even though, as a parent, you have the right to consent to treatment and access medical records at each stage of your child’s treatment until they are an adult, it’s important to keep them included. Mental health treatment works best when a teen is both willing and motivated – and including them in decisions increases the likelihood that they will be.

Legal Rights of Parents in Mental Health Care for Children

As discussed, parents generally have the right to consent to their child’s mental health treatment and have access to their medical records – unless their child is considered a “mature” minor. As a reminder, the likelihood that anyone under the age of 18 will be deemed a “mature” minor is rare, and laws in different states can vary.

However, if your child is considered to be a mature minor, you may be concerned about what happens if you’re concerned about their mental health. For instance, will you be updated on their health and well-being? 

In the circumstances that your child is considered to be mature, they will likely be allowed to make decisions about their own confidentiality. Therefore, a mental health professional may tell you that they don’t want to share any information – and may only do so if they believe there’s a threat to the safety of a mature minor.5

However, under HIPAA Privacy Rule guidelines, there are no restrictions around taking family member’s concerns into consideration. So, if a parent has worries or information about their child’s well-being, a healthcare provider can factor this into the patient’s care. 

Does a Parent Have a Right to See Therapy Notes Under Privacy Laws in Child Mental Health Treatment?

The short answer to this question is “No.” The HIPAA Privacy Rule does not determine notes taken in therapy by a mental health professional to be part of a child’s medical record. A professional may use their notes to make assessments about a child’s needs based on what they talk about in sessions, but they may not deem these observations necessary to include in a record. This also applies to notes taken during group, joint, or family counseling sessions.5

However, a child receiving treatment may be given the option to disclose information they discussed in therapy to their parents or other professionals. A mental health professional will explain the benefits and consequences of doing so, but won’t share without the child’s permission – unless there’s a risk to their safety. For instance, if a therapist believes that information could benefit a child’s family dynamic, they might gently encourage them to share it with their parents. 
Confidentiality and Mental Health Referrals: Privacy Laws and Duty of Care

When to Seek Advice About Mental Health Confidentiality for Children

If you’re concerned about confidentiality and privacy laws for a child in mental health treatment, Mission Prep can help.

Our team of licensed, empathetic professionals can help families and professionals understand privacy laws and what they mean for the treatment process – and the role each person plays within it.  

Mission Prep follows a strict duty of care for every teen in the residential, outpatient, and intensive treatment programs they offer in their various locations. Information that a teen shares in therapy is held confidential, and only shared under very strict circumstances. We’re also available 24/7 to answer any questions you may have about privacy laws. Contact us to learn more. 

References

  1. Pathak, P. R., & Chou, A. (2019). Confidential Care for Adolescents in the U.S. Health Care System. Journal of Patient-Centered Research and Reviews, 6(1), 46. https://doi.org/10.17294/2330-0698.1656
  2. Carr, N. (2023, October 16). The duty of confidentiality for mental health professionals. MentalHealth.com.
  3. Tariq, R. A., & Hackert, P. B. (2023). Patient confidentiality. In StatPearls. StatPearls Publishing. https://www.ncbi.nlm.nih.gov/books/NBK519540/
  4. Hansson, K. M., Romøren, M., Weimand, B., et al. (2022). The duty of confidentiality during family involvement: Ethical challenges and possible solutions in the treatment of persons with psychotic disorders. BMC Psychiatry, 22, 812. https://doi.org/10.1186/s12888-022-04461-6
  5. U.S. Department of Health and Human Services. (2014). HIPAA privacy rule and sharing information related to mental health. https://www.hhs.gov/sites/default/files/hipaa-privacy-rule-and-sharing-info-related-to-mental-health.pdf
  6. APA Services. (n.d.). A matter of law: Privacy rights of minor patients. APA Services.
  7. American Psychological Association. (n.d.). Protecting your privacy: Understanding confidentiality in psychotherapy. American Psychological Association.
  8. Behnke, S. (2002). Confidentiality in the treatment of adolescents. Monitor on Psychology, 33(3). https://www.apa.org/monitor/mar02/confidentiality
  9. Griffith, R. (2015). What is Gillick competence? Human Vaccines & Immunotherapeutics, 12(1), 244. https://doi.org/10.1080/21645515.2015.1091548
  10. Academy of Medical Royal Colleges. (n.d.). Academy statement: Gillick competency. Academy of Medical Royal Colleges.

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