Are Your Counseling Records Confidential? How to Protect Yourself from Unnecessary Disclosure
By Kelly Koermer
Most people enter counseling with a mental health professional with the expectation that no one, other than the counselor, will ever have any knowledge of the communications and disclosures made to the counselor during each session. In fact, most people would never seek the assistance of a counselor, if they believed that the counselor would divulge any confidential communications. While it is true that information pertaining to and records reflecting communications made to a counselor are generally in which this privilege may be waived.
The counselor-client privilege may be waived if one is involved in a lawsuit in which one's mental state is at issue, whether it is a divorce action or an action stemming from an automobile accident. The term "at issue" means that a party to a lawsuit alleges that he or she is entitled to damages as a result of mental or emotional injury, or in a divorce, that he or she is entitled to spousal support because of emotional or mental problems which may delay or prevent a spouse from becoming self supporting.
When one places his or her mental state "at issue," the law provides that the opposing party may discover whatever is necessary to fully defend the action. This, most frequently, includes all past and present counseling records. Past records are germane to the issue to determine whether any psychological problems are preexisting and to determine the nature and extent of any present problems or injuries.
There is also an issue as to whether group or family counseling records are privileged in certain instances. Frequently, in divorce actions, one spouse will put his or her mental state at issue and seek to introduce records of family counseling. Often, the other spouse, who also participated in the counseling, does not wish to have his or her confidences to a counselor part of a public record. As each divorce and counseling situation is different, there is no blanket rule to determine whether a court will require a counselor to disclose family counseling records.
If you are concerned about disclosure of counseling records, you should discuss your apprehensions with your attorney. If you plan to bring a lawsuit, with your attorney you should assess the chances of recovery for emotional and mental injuries while balancing the likelihood and emotional cost of disclosing counseling records. If you are involved in a divorce action, you should discuss strategy in claiming or defending a claim for alimony or a monetary award which would be least likely to necessitate the disclosure of counseling records.