Last Updated on September 1, 2024
The US court system recognizes that some relationships deserve legal protections so the parties can be sufficiently open with one another. For example, a client must feel comfortable with their attorney to share all information relevant to their case, spouses should be able to communicate with one another openly, Catholic priests cannot break the sanctity of confession, and a patient must be able to discuss medical issues with their doctor, even if it resulted from drug use or sexual assault. Along those same lines, patients seeking treatment for mental health conditions must be provided confidentiality, or they will be unable to get the support necessary for their conditions because they will feel unsafe opening up to their therapist. As a result, therapists, psychologists, and counselors are not supposed to disclose any information to spouses, police officers, teachers, or anyone else without their patient’s consent. However, there are exceptions when therapists can break confidentiality. In fact, “a therapist does have to report a crime to the police in some specific situations,” says attorney Peter Liss, “including those where they believe doing so could help protect someone, including the patient, from danger.”
When Does a Therapist Have to Report a Crime?
There are some situations where a therapist legally must disclose information to the police under California law. Counselors are required to tell the police or the potential victim what a patient has told them if they believe their client may hurt someone else in the future.
As an example, if you tell your therapist that you want to rape the girl next door, the therapist must report this information to the law enforcement officers or the victim if they believe you realistically can and will follow through with these urges.
In criminal cases, these limits to confidentiality are not confined to the parties initially provided with the information, meaning that once it’s released, it can be shared again as necessary. So in the previous example, if you raped a different teenage girl later on, the psychologist could be required to testify about what you said about your urges since they already made this information public when they told the police or the girl’s parents.
When Does a Therapist Have to Report a Past Crime?
In most cases, a psychologist is not required to report past crimes. “Even if you confess to your therapist that you are guilty of multiple robberies, rapes, or murders, therapists cannot report this information to the police, as it violates patient confidentiality laws if they do,” explains Liss. “If they believe there is evidence you may do the same act again, they can choose to report it though.”
So, for example, if you tell a therapist you killed someone, they can help you cope with the trauma and aid you in working through your anger issues that triggered it, but they cannot legally tell the police about the murder. However, suppose you tell your psychologist about the experience and then start telling them about your hatred for your next-door neighbor and say you want to shoot them in your face. In that case, they may be required to inform the authorities or your neighbor if they feel the threat is real and credible.
While a therapist does not have to report a past crime in most cases, there are exceptions when it comes to abuse and similar offenses committed against children, the disabled, or the elderly. If a counselor believes someone has abused or neglected a child, dependent adult, or elderly individual, they do have to report the crimes under mandatory reporting laws. They also must report anyone they reasonably suspect to have purposefully viewed or downloaded child pornography.
What Can a Therapist Choose to Report?
Mental health professionals are known as mandatory reporters, meaning they have to report situations where patients are at risk of abuse or are likely to commit crimes against others. In other situations, the decision on whether to notify the authorities is ultimately up to the individual therapist and must be based on their opinion of how realistic it is that the patient will suffer physical, sexual, or emotional harm based on the facts they know. A therapist can choose to break confidentiality when their patient discusses either self-harm or past abuse.
Suicidal thoughts are a delicate issue for mental health professionals. They want patients to feel safe about discussing their feelings but still want to protect those who may actually hurt themselves. When patients express thoughts of self-harm, the therapist must consider their risk factors and only take action if their client demonstrates a high-risk imminent threat of suicidal behavior. At this point, they may seek to secure a higher level of care, including institutionalization.
If the patient is a minor under 16 and the therapist has reason to believe they are the victim of a crime, the therapist can choose to break patient confidentiality and report the crime if they think it is in the patient’s best interest to do so.
For example, if a therapist suspects a minor’s stepdad has been molesting her, they can call child services and the police and report their suspicions. On the other hand, if a teen boy says he was sexually assaulted years ago by an ex-friend, a psychologist may choose to focus on helping him heal rather than reporting the crime to the police or the boy’s parents.
Can a Therapist Tell the Police if You Did Something Illegal to Them?
A mental health professional is not required to keep discussions confidential if a patient tries to use them to commit a crime or commits a crime against them. For example, if a psychiatrist believes a patient is pretending to have ADHD to get a prescription to abuse Adderall, the doctor is no longer restricted by confidentiality laws. Similarly, if a patient attempts to rob or assault their therapist, they can bring this information to the police and testify in court about the crime.
What Should You Never Tell Your Therapist?
While you can tell your therapist many illegal things you have done in the past, they do have to report you if they believe what you have told them indicates that you will do harm to another person, that you have intentionally downloaded or viewed child pornography, or that you have previously abused a child, disabled person, or elderly adult. As a result, it is best to avoid telling them about any criminal activities you plan to commit in the future, any interest you have in child pornography, or any abuse you have previously performed against a child, disabled person, or elderly adult.
“The laws covering when therapists have to report crimes are complex,” warns Liss, “so if you are unsure if a topic should be off limits, do not say anything that could cause you trouble without speaking to a defense lawyer first.” If you wish to seek treatment for these issues, it may be advisable to use a pay phone or burner phone to call a counseling hotline or an anonymous therapy service online. However, remember that you need to make efforts to keep your identity private when using these services. You should use an alias and avoid offering personal information such as your credit card number or address.
Is it Ever a Good Idea to Waive Patient Confidentiality?
Occasionally, it might be in your best interest to waive your right to psychological confidentiality in criminal cases. “Sometimes, having a therapist testify to your state of mind or psychological issues could be a strong defense against a criminal accusation,” says Liss.
For example, if you and your lawyer decide to make your mental state part of your defense strategy, your psychiatrist may be called as a witness. While attorneys rarely rely on the insanity defense, claiming diminished actuality is a common partial defense (meaning it would qualify you for reduced charges or a lighter sentence) for those who did not have the specific intent to commit a crime because of their mental state.
Alternatively, “therapists can sometimes provide key evidence to prove someone’s innocence,” explains Liss. “For example, if someone suffered severe psychological damage as a kid and is terrified of letting even their wife see them in the nude, it’s pretty unlikely they would commit indecent exposure.”
“If you need to discuss a potentially illegal activity, you can always discuss these issues with an attorney without worrying about them calling the police since they’re not mandated reporters,” explains Peter Liss. You can schedule a free initial consultation with attorney Peter M. Liss by calling (760) 643-4050 or (858) 486-3024.
Related articles: Did you know therapists cannot legally be in a relationship with a patient? Or that your confessions at AA are legally protected but still not 100% safe from police?
