DIFFERENCE BETWEEN CONFIDENTIALITY AND PRIVILEGE

There is a difference between the definitions of privilege and confidentiality in regard to a client and his/or her counselor. Confidentiality is actually an ethical obligation, not a legal term. Privilege, on the other hand, is a legal term that means a person has the legal right to withhold information during a legal process. Each state has different specific counselor-patient privileges guaranteed under certain statutes.

The term holder of the privilege refers to the client's option to either waive the privilege and to withhold his/or her information or to allow it to be used. The client may be a minor or be considered legally incompetent, hence, the parents or legal guardians are the holder of the client's privilege.

Many times a counselor is asked to release privilege-protected information. To deal with this situation, the APA Committee on Legal Issues wrote suggestions on how to deal with subpoenas, testimonies, and court orders that call for confidential information about a client:

1. Subpoenas should be dealt with by first determining if the request for information is a legally valid request, secondly by discussing the issue with the client, then obtaining consent, and finally releasing the information.
2. Testimonies can be refused until the court actually orders the client to testify.
3. Court orders should be dealt with by complying, at risk of being held in contempt of court.