Confidentiality, privilege, and duty to warn: the legal items sorted.
The difference between the three terms, the exceptions that appear on the exam, and the cases you should recognize by name.
By Dr. Andrew Wichterman · September 15, 2026 · 6 min read
Legal items on the NCE are ethics items in disguise. They test a small set of terms and cases and the exceptions to confidentiality. Students lose points by treating the three main terms as interchangeable.
Three terms
- Confidentiality is an ethical duty and a professional standard: what the counselor will not disclose.
- Privileged communication is a legal right belonging to the client that protects what was said in counseling from being compelled in court. It is created by statute and varies by state. The client, not the counselor, holds it and can waive it.
- Privacy is the broader right to control access to oneself and information about oneself, from which the other two derive.
The exceptions
Confidentiality yields when: the client is a danger to self; the client presents a serious and foreseeable threat to an identifiable other; there is suspected abuse or neglect of a child, and in most states an elder or dependent adult; a court orders disclosure; the client gives informed consent or waives privilege; the counselor is sued by the client; and, under the ACA Code, when a client has a communicable, life-threatening disease and a third party is at demonstrable risk, disclosure may be justified after confirming the client has not informed and does not intend to inform them. Minors and clients unable to consent have limits set by law and by parents or guardians.
Cases to recognize
- Tarasoff v. Regents of the University of California (1974, 1976): the duty to warn, later framed as the duty to protect, when a client makes a serious threat against an identifiable person.
- Jaffee v. Redmond (1996): the U.S. Supreme Court recognized psychotherapist-patient privilege in federal courts, extending to licensed social workers and, by application, to licensed counselors in many jurisdictions.
- Bartley v. Kremens, Parham v. J.R.: minors' rights in commitment decisions.
- Wyatt v. Stickney: right to treatment for institutionalized patients.
- Tarasoff variants: some states have narrowed or codified the duty; the exam expects you to know it is state law.
Records and HIPAA
HIPAA governs protected health information held by covered entities. Psychotherapy notes kept separately have extra protection. Clients generally have the right to access their records, and counselors must maintain records for a period set by law and the ACA Code (the Code says a reasonable period; states typically set five to seven years, longer for minors). FERPA governs education records in schools.
How to answer
- Identify whether the item is about ethics (the Code) or law (statute and case law). The answer changes.
- If harm is imminent and specific, protection outranks confidentiality.
- If a subpoena arrives, the first step is to assert privilege on the client's behalf and consult, not to hand over the file.
- Consult and document, always.
Practice this. The flashcards and practice tests on this site are sorted by content area, so you can drill this one until it holds.
Three terms, a short list of exceptions, and a handful of cases. This is one of the most predictable parts of the exam.