Confidentiality vs. Privilege
As a mental health therapist, it’s essential to understand the difference between confidentiality and privilege, because while the terms sound similar, they serve different purposes under the law.
Confidentiality refers to your ethical and legal duty as a therapist to keep information about your client private. This obligation begins as soon as you establish a therapeutic relationship and is guided by laws such as HIPAA and State laws. For example, in Massachusetts, licensed independent clinical social workers (LICSW) must maintain the confidentiality of all communications with clients. This means you cannot disclose information about a client without their consent, except in limited circumstances. For example, Massachusetts law requires you to break confidentiality if:
The client presents a clear and present danger to themselves and refuses explicitly to voluntarily accept further appropriate treatment
You have reason to suspect child abuse or neglect (M.G.L. c. 119, § 51A) or abuse of an elder or disabled person.
Your legal “duty to warn” is triggered
In these situations, you would only disclose the minimum information necessary to comply with the law.
Privilege, on the other hand, is a rule of evidence that applies specifically to legal proceedings. It is the client’s right (not the therapist’s) to prevent their private communications from being disclosed in court. In most states, privilege for social workers, psychologists, and other mental health professionals is codified in statutes. For example, if you receive a subpoena to testify about client information, you cannot automatically share that information. Privilege gives the client the ability to assert that those communications remain private, even in a legal setting.
For privileged communications under these laws, a client not only has the right to privilege about what was said in therapy, but also can seek to stop others (like a therapist or third-party witness) from revealing those communications in court. For example, under Massachusetts law, (G.L. c.. 112 § 135B, which governs social workers) "a client shall have the privilege of refusing to disclose and of preventing a witness from disclosing any communication, wherever made, between said client and a social worker . . . " There are exceptions here as well. For instance, a Massachusetts court may allow disclosure if:
The client introduces their mental health as a central issue in a court case.
There is evidence that the client poses a serious threat of harm and the information is necessary to prevent it.
Certain abuse or neglect reporting laws apply.
Confidentiality is your ongoing duty to keep client information private, while privilege is your client’s right to stop that information from being shared in legal proceedings. Both are vital to preserving trust in therapy, but they operate in different contexts.
If you ever receive a subpoena or court order and aren’t sure how to respond, it’s important to consult with an attorney familiar with mental health law. They can help you balance your ethical duties with your legal obligations.
This blog is intended for educational purposes only and does not constitute specific legal advice for any individual. Reading this material does not establish an attorney-client relationship between the reader and our firm. For personalized legal guidance, please consult a licensed attorney in your jurisdiction.