Must a counselor therapist keep certain information confidential even if it pertains to illegal activity?

Question

Generally speaking medical professionals are obligated to keep their patient information confidential, I think by legislation or the licensing body that allows them to practice. I'm not sure if it's redundant but some counselors have some sort of privacy policy such as they will only divulge information if it relates to abuse or if a court subpoenas it.

What if the client tells the councilor about illegal activity they have participated in (where no one was harmed) such as buying and using illegal drugs such as marijuana or cocaine? Or if they had something like Kleptomania where they steel from grocery stores? Would the councilor be obligated or allowed to report these activities to the authorities?

Answer 1

In most jurisdictions, the only exception to the confidentiality rules is imminent harm. For example, if the patient announces that they intend to commit a violent crime, reporting this would be allowed.

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In canada specifically, there are both rules from the various professional organizations (for physicians, for psychologists etc.) and laws, which may depend on the province.

As an example, the guideline of the College of Alberta Psychologists says:

Psychologists may disclose personal or confidential information without a client’s consent when there is likelihood of imminent and grave harm to the client and/or a third-party, or when required to do so by law.

So, unless there is a law which explicitly requires it, past activity need not (and may not) be passed on.

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For another jurisdiction, in germany, confidentiality is mandated (among other things) by StGB §203, which punishes breach of confidentiality with up to one year in prison. It basically applies to everyone who works in a regulated profession (as medical professional, psychologist or social worker), or who works in an officially recognized counseling service (such as family counseling).

As in Canada, disclosure of personal information without consent of the client is only allowed in emergency situations involving imminent danger of harm ("necessity as justification", StGB §34), or when explicitly required by law (for example, there is a general duty to report the planning of certain serious crimes, StGB §138).

In addition to that, the various professional organizations also have confidentialty rules which sometimes go beyond the legal rules. For example, the rules of the society of psychologists require psychologists to explicitly inform clients of the limits of confidentiality, which is not required by law.

Answer 2

What is a “counsellor therapist”?

I know what a medical practitioner is. I know what a psychologist is. I know what a physiotherapist is. I know what a legal counsel is. I know what a massage therapist is.

I don’t know what a “counsellor therapist” is.

The point I am belabouring here is that you have identified a profession that the law may not recognise. Is this a regulated profession or can anyone hang up a slate saying “counsellor therapist” and start charging fees?

Notwithstanding, let’s assume that this person is working in a profession recognised by law and subject to mandatory ethical standards.

Reporting

There are basically four situations regarding reporting of what is revealed:

1. Privilege - the information cannot be shared but even if it is it cannot be used against the person who owns the privilege.
2. Mandatory reporting - where the person is obliged by law or contract to revel the information.
3. A duty of confidentiality - where the person is obliged by law, ethical standards, or contract to keep the information confidential.
4. None of the above - where reporting or not reporting is at the discretion of the person.

Privilege

In Canadian common law, there are three types of privilege: lawyer-client, litigation, and situations that meets the Wigmore criteria. None seem applicable to your situation.

The Wigmore criteria may apply to the relationship described but it is a cas by case test, not a blanket rule.

Mandatory Reporting

All Canadian provinces have mandatory reporting for, among others, health professionals for child physical and sexual abuse and 8 of 10 have laws for reporting exposure to intimate partner violence. There is a national law that requires mandatory reporting of child pornography.

Some jurisdictions, although I don’t believe any in Canada do, require reporting of serious offences by anyone who becomes aware of them.

Contractural reporting obligations generally arise when the therapist is not your therapist. For example, where the therapist is employed by the court, the prison service, your employer etc. In these circumstances, not only do they not have a duty of confidence, they may have a positive duty to report and analyse what you say and do.

Confidentiality

A common law duty of confidentiality arises whenever confidential information is imparted in circumstances of confidentiality. A normal therapist-patient relationship would normally qualify.

In addition, if the therapist operates under a mandatory code of ethics, that will normally address confidentiality and the circumstances in which it can be broken. In addition to “when required by law”, these often include disclosure to further your treatment or to prevent harm to yourself or others.

In addition, you may have a contract with the therapist that deals with confidentiality.

None of the above

In this case, its a matter for the therapist’s conscience.