Perhaps you've been in therapy at some point in your life. Your therapist--whether they be a psychologist, social worker, psychiatrist, mental health counselor, or marriage and family counselor--should have notified you about the nature and limits of your confidentiality.
I've been thinking about this a lot recently. The news report instantly got my attention. Anderson Cooper reported that a notebook that was mailed to a psychiatrist at the University of Colorado was handed over to the police. That notebook, made by the alleged killer James Holmes, detailed his plans for the murders in Aurora Colorado. More news has since come forward. The psychiatrist, Dr. Lynne Fenton, treated James Holmes for schizophrenia. He was at one point, her patient.
We don't know the nature of that treatment. We don't know how the journal was released to the authorities. Unnamed sources. That's what the news reports say. Unnamed sources leaked information that James Holmes was treated for schizophrenia and sent his psychiatrist a notebook that contained stick figure drawings of his plans for the massacre that left twelve dead and 58 wounded.
What is the nature and limits of confidentiality in psychotherapy? Here is what I tell each and every patient that walks into my office. I'm not a lawyer. Keep that in mind. This is my best understanding of the laws that govern my practice as a licensed psychologist in the Commonwealth of Massachusetts. The laws don't differ much from state to state.
What you say here, stays here. It is important to me that you know that this. As a licensed psychologist the things we talk about remain confidential except under very specific circumstances. I want to spend some time talking about this and I'd like you to spend some time asking me questions. Confidentiality means that I cannot and will not talk to other people about you and our work except under very specific circumstances that I will explain. This means your husband, wife, partner, friend, parents, or police can't call me up and ask about you. If they do, I say I cannot confirm or deny knowing you. As soon as I get a call like this, I will contact you and tell you. If you are under 18, your parents can ask about you, and have a right to know what we are talking about. If you are over 16 and under 18, you can tell me not to talk to your parents and I would have to respect your wishes. However, your parents still have the right to inspect your medical records.
That is the basics of confidentiality. I don't ever reveal information, except in certain special circumstances, about my patients. It is the beginning of a special relationship where a patient can talk about whatever they wish. Their fantasies, their fears, their hopes, their traumas, their crimes, and their crimes against others. I listen. I don't talk to other people about it. Without this basic trust no patient would ever feel safe exposing the contents of their minds, hearts, and souls.
Psychologists have a duty to protect people from abuse. This is what I say:
Here are the limits of confidentiality. It's important that you know them. I do not want you to find yourself in a situation where you talk about something and then have unexpected consequences because I have to take action. We can talk about this as much and as often as you'd like. You can ask me hypothetical questions should you want to know what I'd do in particular kinds of circumstances. If you talk about and identify a child under the age of 18 that is being abused, anyone over the age of 60 that is being abused, and anyone, of any age, that has a disability that is being abused, I will have to break your confidentiality. It is important that you understand that if you identify the person being abused, or I can reasonably ascertain their identify from what I know about you, I will have to break your confidentiality and protect that person.
Psychologists have a duty to protect patients from committing suicide. This is part of what I say:
The second circumstance when I would have to break your confidentiality is if I have reason to believe you will kill yourself. This doesn't mean that I will immediately hospitalize you if you talk about having a dark night of the soul, or wonder what it would be like to not be alive. Many people talk about suicide and contemplate their own deaths. Many people are also chronically suicidal and do not require hospitalization. We can talk a lot about this, what this means and what it doesn't, and we'll work together to make sure you can talk openly about any feelings you have about suicide while also making sure you are safe.
Psychologists have a duty to warn and protect intended victims of homicide. This is what I say:
The last circumstance when I would have to break your confidentiality is if you are planning to kill someone. Often times people say "Oh my boss, I could just kill him." I understand that is a figure of speech. You wouldn't be hospitalized for that. However, should you have planned and and have intention to commit murder and you tell me about it, and you identify your intended victim or victims, I will have to take every action at my disposal to protect you from committing this crime and protect your intended victim. This likely means I will attempt to have you secured in a psychiatric hospital. If I cannot do this, I am required to warn your intended victims and am required to warn the police.
Think of what would have happened should that journal Holmes made was been found before the crime was committed. Lives could be saved. Traumas could be prevented. Dark Night Rising would be about Batman, not about murder. Our movie theaters could feel safe.
None of this, of course, will ever happen. Nothing will undo the murder of twelve people and injuries of 58 others. Nothing can undo what has already happened.
Had Dr. Fenton had knowledge of the intended crime before it happened, she would have had an affirmative duty to protect and warn. We do not know what Dr. Fenton knew, and when she knew it. We only know that Holmes was in treatment at some point in time, and that a journal detailed the crimes arrived at the University of Colorado at some point in time.
What does a psychologist do when a patient has already murdered someone? What if the unthinkable happens and a patient of mine walks into my office, sits down on the couch, and confesses to a murder?
I cover this in my first session with patients.
If you murder someone, and then tell me about it, I believe that I cannot break your confidentiality. You need to understand that. I would have a lot of questions for you. We would talk about what you did, and how you want to move forward in making the right choices. This would be very difficult for me, however, your confidentiality would remain and it is my understanding that I would not be able to turn you in to the authorities. Any other crime you might be involved in, as long as it doesn't involve planning murder or the abuse of a child, person over 60, or a person with a disability, is not something that I can tell other people about.
How could someone get my records? That's covered in the first appointment, too.
Your records are confidential, as is the contents of anything we talk about inside this room. If you give me permission to release information about you to someone, and we agree it is in your best interest, I will do that. I will release information without your permission if you are a risk to self, risk to others, disclose abuse that I am mandated to report, or if your decision making is impaired based on the symptoms of a mental illness. Short of that, I would need a court order from a judge to release information. Am not required to hand over medical records based on a warrant or a subpoena.
I also share with patients how I break confidentiality in these circumstances. There is a specific and progressive order of steps that I take that escalate until I either am assured the individual is safe or I have progressively exhausted all means I have available to protect an individual.
So why am I writing about this? I believe I have no business, as a member of the public, knowing that James Holmes was in treatment for schizophrenia. I believe I have no business knowing that he wrote a journal in which he detailed his plans for the murders.
As difficult and as unpopular as this might be, if I was his psychologist, I believe I would have the responsibility to hold onto this confidentiality and not release the journal or any information about his treatment until such time as I was served with a court order.
Somewhere, somehow, Holmes lost his confidentiality. I think it was wrong that this happened. He had already committed the alleged crimes. There was no duty to warn or protect, therefore no ethical or legal reason to disclose the journal or information about his treatment.
There was every reason to protect his confidentiality. Not because of Holmes, mind you. We needed to do a better job of protecting Holmes' confidentiality because of everyone else that ever enters into a therapeutic relationship.
My work starts with a promise. I promise to keep your confidentiality and hold your secrets. I promise to do my best to keep you safe. I promise to keep those around you safe. This breach of confidentiality (whether a failure of the doctor, the university, a mail clerk, a student assistant at the health center...) makes every patient, everywhere, a little more afraid to reveal the contents of their minds, hearts, and souls to the professionals they entrust with their secrets.
That promise, the most important promise of the therapeutic enterprise, was broken.
____
Updates
As I find specific information for licensed individuals in various jurisdictions I'll add them here.
Ohio
(G) Divisions (A) and (D) of this section do not require disclosure of information, when any of the following applies:
(1) The information is privileged by reason of the relationship between attorney and client; doctor and patient; licensed psychologist or licensed school psychologist and client; member of the clergy, rabbi, minister, or priest and any person communicating information confidentially to the member of the clergy, rabbi, minister, or priest for a religious counseling purpose of a professional character; husband and wife; or a communications assistant and those who are a party to a telecommunications relay service call.
(5) Disclosure would amount to revealing information acquired by the actor in the course of the actor's duties in connection with a bona fide program of treatment or services for drug dependent persons or persons in danger of drug dependence, which program is maintained or conducted by a hospital, clinic, person, agency, or organization certified pursuant to section 3793.06 of the Revised Code.
(6) Disclosure would amount to revealing information acquired by the actor in the course of the actor's duties in connection with a bona fide program for providing counseling services to victims of crimes that are violations of section 2907.02 or 2907.05 of the Revised Code or to victims of felonious sexual penetration in violation of former section 2907.12 of the Revised Code. As used in this division, "counseling services" include services provided in an informal setting by a person who, by education or experience, is competent to provide those services.