Guide to Texas - Confidentiality Citations in the Texas Guidance

I. When must you break confidentiality with the legal and ethical citations?

A. Texas Administrative Code, Title 22, Part 21, Ch 465, Rule 465.12 pertains to privacy and confidentiality by psychologists in practice:

TAC, Title 22, Part 21, Ch. 465, Rule 465.12 (e):  “Licensees disclose confidential information without the consent of a patient or client only in compliance with applicable state and federal law.”

B. Texas Administrative Code, Title 22, Part 30, Ch 681, Subchapter C, Rule 681.45 pertains to confidentiality and required reporting by professional counselors:

TAC, Title 22, Part 30, Ch. 681, Rule 681.45 (d): "A licensee must report information as required by Council §§882.36 (relating to Compliance with State and Federal Law) and 884.32 (relating to Reportable Legal Action and Discipline) and the following statutes:

1. Texas Family Code Chapter 261, Subchapter B, concerning report of abuse or neglect of minors;

2. Texas Human Resources Code Chapter 48, Subchapter B, concerning reports of abuse, neglect, or exploitation of elderly or disabled persons;

3. Texas Health and Safety Code Chapter 161, Subchapter L, concerning abuse, neglect, and unprofessional or unethical conduct in health care facilities;

4. Texas Civil Practice and Remedies Code, §81.006, concerning duty to report sexual exploitation by a mental health provider; and

5. A licensee must comply with Texas Occupations Code §109.051 relating to the release of treatment information concerning the treatment of a s-x offender."

C. Texas Family Code, Chapter 261 pertains to abuse or neglect of minors:

1.  TFC, Chapter 261, Subchapter B, Sec. 261.101 (a): “A person having cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter.”

2.  TFC, Chapter 261, Subchapter B, Sec. 261.101 (c) states that those required to report include individuals whose personal communications may otherwise be privileged and include mental health professionals and medical practitioners as well as others.

D. Texas Human Resources Code, Chapter 48 pertains to abuse, neglect, or exploitation of elderly:

1.  TXHRC, Ch. 48, Subchapter B, Sec. 48.051 (a):  “Except as prescribed by Subsection (b), a person having cause to believe that an elderly person, a person with a disability, or an individual receiving services from a provider as described by Subchapter F is in the state of abuse, neglect, or exploitation shall report the information required by Subsection (d) immediately to the department.”

2.  TXHRC, Ch 48, Subchapter B, Sec. 48.051 (c) states that the duty of Subsection (a) applies to those “whose knowledge concerning possible abuse, neglect, or exploitation is obtained during the scope of the person’s employment or whose professional communications are generally confidential” and includes legal professionals, clergy, medical practitioners, social workers, and mental health professionals as well as others.

E. Texas Health and Safety Code, Chapter 161 pertains to abuse and neglect or of illegal, unprofessional, or unethical conduct:

TXH&SC, Chapter 161, Subchapter L, Sec. 132 (a): “A person, including an employee, volunteer, or other person associated with an inpatient mental health facility, a treatment facility, or a hospital that provides comprehensive medical rehabilitation services, who reasonably believes or who knows of information that would reasonably cause a person to believe that the physical or mental health or welfare of a patient or client of the facility who is receiving chemical dependency, mental health, or rehabilitation services has been, is, or will be adversely affected by abuse or neglect caused by any person shall as soon as possible report the information supporting the belief to the agency that licenses the facility or to the appropriate state health care regulatory agency.”

F. Texas Civil Practice and Remedies Code, Chapter 81 pertains to sexual exploitation by mental health services providers:

TXCP&RC, Ch. 81, Sec. 81.006 (a): “If a mental health services provider or the employer of a mental health services provider has reasonable cause to suspect that a patient has been the victim of s-xual exploitation by a mental health services provider during the course of treatment, or if a patient alleges s-xual exploitation by a mental health services provider during the course of treatment, the mental health services provider or the employer shall report the alleged conduct not later than the 30^th day after the date the person became aware of the conduct or the allegations” to appropriate agencies as found in the subsequent subsections.

G. Texas Occupations Code, Chapter 109 pertains to release of s-x offender treatment information:

TXOC, Ch 109, Subchapter B, Sec. 109.051 (a) “Information concerning the treatment of a s-x offender may be released by a person who: (1) is licensed or certified in this state to provide mental health or medical services including a physician; psychiatrist; psychologist; licensed professional counselor; licensed marriage and family therapist; or social worker; and (2) while licensed or certified, provides or provided mental health or medical services for the rehabilitation of s-x offenders.”  

II. When may you break confidentiality with the legal and ethical citations?

A. Texas Administrative Code, Title 22, Part 21, Ch. 465, Rule 465.12 pertains to privacy and confidentiality by psychologists in practice:

TAC, Title 22, Part 21, Ch 465, Rule 465.12 (g):  “Licensees may share information for consultation purposes without a consent only to the extent necessary to achieve the purposes of the consultation.  Licenses shall exclude information that could lead to the identification of the patient or client.”

B. Texas Health and Safety Code, Subtitle E., Ch 611 pertains to mental health records:

TX H&SC, Subtitle E, Ch. 611, Sec. 611.004:  “A professional may disclose confidential information only: 

1.  To a governmental agency if the disclosure is required or authorized by law;

2. To medical or law enforcement personnel if the professional determines that there is a probability of imminent physical injury by the patient to the patient or others or there is a probability of immediate mental or emotional injury to the patient;

3.  To qualified personnel for management audits, financial audits, program evaluations, or research, in accordance with Subsection (b);

4. To a person who has the written consent of the patient, or a parent if the patient is a minor, or a guardian if the patient has been adjudicated as incompetent to manage the patient’s personal affairs;

5. To the patient’s personal representative if the patient is deceased;

6. To individuals, corporations, or governmental agencies involved in paying or collecting fees for mental or emotional health services provided by a professional;

7.  To other professionals and personnel under the professionals’ direction who participate in the diagnosis, evaluation, or treatment of the patient;

8.  In an official legislative inquiry relating to a state hospital or state school as provided by Subsection (c);

9. To designated persons or personnel of a correctional facility in which a person is detained if the disclosure is for the sole purpose of providing treatment and health care to the person in custody;

10. To an employee or agent of the professional who requires mental health care information to provide mental health care services or in complying with statutory, licensing, or accreditation requirements, if the professional has taken appropriate action to ensure that the employee or agent:

(A) will not use or disclose the information for any other purposes; and

(B) will take appropriate steps to protect the information; or

11. To satisfy a request for medical records of a deceased or incompetent person pursuant to Section 74.051(e), Civil Practice and Remedies Code.”  

C. TX H&SC, Subtitle E, Ch. 611, Sec. 611.006:  “A professional may disclose confidential information in

1. a judicial or administrative proceeding brought by the patient or the patient's legally authorized representative against a professional, including malpractice proceedings;

2. a license revocation proceeding in which the patient is a complaining witness and in which disclosure is relevant to the claim or defense of a professional;

3. a judicial or administrative proceeding in which the patient waives the patient's right in writing to the privilege of confidentiality of information or when a representative of the patient acting on the patient's behalf submits a written waiver to the confidentiality privilege;

4. a judicial or administrative proceeding to substantiate and collect on a claim for mental or emotional health services rendered to the patient;

5. a judicial proceeding if the judge finds that the patient, after having been informed that communications would not be privileged, has made communications to a professional in the course of a court-ordered examination relating to the patient's mental or emotional condition or disorder, except that those communications may be disclosed only with respect to issues involving the patient's mental or emotional health;

6. a judicial proceeding affecting the parent-child relationship;

7. any criminal proceeding, as otherwise provided by law;

8. a judicial or administrative proceeding regarding the abuse or neglect, or the cause of abuse or neglect, of a resident of an institution, as that term is defined by Chapter 242;

9. a judicial proceeding relating to a will if the patient's physical or mental condition is relevant to the execution of the will;

10. an involuntary commitment proceeding for court-ordered treatment or for a probable cause hearing under:

(A) Chapter 462;

(B) Chapter 574; or

(C) Chapter 593; or

11. a judicial or administrative proceeding where the court or agency has issued an order or subpoena.

III. What are the special legal and ethical requirements if your client has substance abuse issues?

A. Texas Health and Safety Code, Subtitle E., Ch. 611 pertains to mental health records:

1. TX H&SC, Subtitle E., Ch. 611, Sec. 611.0045(j): “Notwithstanding Section 159.002, Occupations Code, this section applies to the release of a confidential record created or maintained by a professional, including a physician, that relates to the diagnosis, evaluation, or treatment of a mental or emotional condition or disorder, including alcoholism or drug addiction.”

2. TX H&SC, Subtitle E., Ch. 611, Sec. 611.001:  “’Patient’ means a person who consults or is interviewed by a professional for diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, including alcoholism or drug addiction.”  Thus, the same confidentiality provisions mentioned in TX H&SC, Subtitle E., Ch. 611., Sec. 611.004 regarding authorized disclosure of confidential information other than in judicial or administrative proceeding and Sec. 611.006 regarding authorized disclosure of confidential information in judicial or administrative proceeding apply for those with alcoholism or drug addiction.

B. Texas Health and Safety Code, Subtitle B, Chapter 461 pertains to the Texas Commission on Alcohol and Drug Abuse:

1. TXH&SC, Subtitle B, Ch 461, Sec. 461.0121 “The executive director may develop emergency treatment resources for persons who appear to be (1) chemically dependent; (2) under the influence of alcohol or a controlled substance and in need of medical attention; or (3) undergoing withdrawal or experiencing medical complications related to a chemical dependency.”

IV. What are the special legal and ethical requirements if your client is HIV positive?

A. TXH&SC, Chapter 81, Subchapter A, Sec. 81.011:  “In times of emergency or epidemic declared by the commissioner, the department is authorized to request information pertaining to names, dates of birth, and most recent addresses of individuals from the driver’s license records of the Department of Public Safety for the purpose of notification to individuals of the need to receive certain immunizations or diagnostic, evaluation, or treatment services for suspected communicable diseases.”

B. TXH&SC, Ch 81, Subchapter F, Sec. 81.103 (a):  “A test result is confidential.  A person that possesses or has knowledge of a test result may not release or disclose the test result or allow the test result to become known except as provided in this section.”  Sec. 81.103 (b):  “A test result may be released to (1) the department under this chapter; (2) a local health authority if reporting is required under this chapter; (3) the Centers for Disease Control of the United States Public Health Service if reporting is required by federal law or regulation; (4) the physician or other person authorized by law who ordered the test; (5) a physician, nurse, or other health care personnel who have a legitimate need to know the test result in order to provide for their protection and to provide for the patient’s health and welfare; (6) the person tested or a person legally authorized to consent to the test on the person’s behalf; (7) the spouse of the person tested if the person tests positive for AIDS or HIV infection, antibodies to HIV, or infection with any other probable causative agent of AIDS; (8) a person authorized to receive test results under Article 21.31, Code of Criminal Procedure, concerning a person who is tested as required or authorized under the article; (9) a person exposed to HIV infection as provided by Section 81.050; (10) a county or district court to comply with this chapter or rules relating to the control and treatment of communicable diseases and health conditions; and (11) a designated infection control officer of an affected emergency response employee or volunteer.”

C. According to TXH&SC, Chapter 81, Subchapter C, Sec. 81.041(e), AIDS and HIV are reportable diseases and require reports. Sec. 81.042 (e) 9 states that health professionals are required to report “to the local health authority or the department a suspected case of a reportable disease and all information known concerning the person who has or is suspected of having the disease if a report is not made as required by Subsections (a) – (d).”

D. According to the Texas Health and Safety Code, Chapter 611, Subtitle E., Section 611.002 (a), “Communications between a patient and a professional, and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional, are confidential” and (b) “may not be disclosed except as provided by Section 611.004, 611.0041, or 611.0045” partially listed in the above sections and which mentions that “a professional may disclose confidential information only (1) to a governmental agency if the disclosure is required or authorized by law” and would be according to TXH&SC, Ch. 81, Subchapter C, Sec. 81.041(e) as a reportable disease.

E. TXH&SC, Ch. 81, Subchapter C, Section 81.046(d) “In a case of s-xually transmitted disease involving a minor under 14 years of age, information may not be released, except that the child’s name, age, and address and the name of the disease may be released to appropriate agents as required by Chapter 261, Family Code.  This subsection does not affect a person's duty to report child abuse or neglect under Subchapter B, Chapter 261, Family Code, except that information made confidential by this chapter may not be released. If that information is required in a court proceeding involving child abuse, the information shall be disclosed in camera."