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Running Head: NORTH CAROLINA: CONFIDENTIALITY, MANDATED REPORTING,

AND DUTY TO WARN

North Carolina: Confidentiality, Mandated Reporting, and Duty to Warn

Elizabeth Holloway

Wake Forest University

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NORTH CAROLINA: CONFIDENTIALITY, MANDATED REPORTING, AND DUTY
TO WARN

The privilege of being a mental health counselor includes creating and maintaining a

relationship with a client in which they expose their deepest thoughts, memories, and

vulnerabilities. With this trust, a counselor is bound by moral, ethic, and legal codes that protects

the client and their right to confidentiality amongst other rights. These codes also ensure the

safety of others such as people in the clients lives and the counselor, themselves. While

maintaining the standards of protecting their clients, helpers must also be aware of when it is

appropriate, or even necessary, to break the law of confidentiality and tell a third party of

something a client has told them such as in events of neglect, abuse, or harm. In North Carolina,

laws maintain the privacy for the client within appropriate bounds if the counselor must make the

difficult decision to defy the codes they practice for the sake of others. The Tarheel State, my

home for 28 years and the home of my family, spells out these instances in their state statutes to

protect and maintain the obligations of counselors and clients, alike. I choose to write about this

beautiful state because it is my home and because I am witness to its commitment to its people

and their rights.

Most of the information regarding confidentiality and privileged communication in North

Carolina come from general statutes for Mental Health and an article specifically for counselors

in the state. Chapter 122C of North Carolina statute (N.C.G.S.) § 122C-52 “Mental Health,

Developmental Disabilities, and Substance Abuse act of 1985” states that the rights of an

individual include the right to basic human privileges such as dignity, privacy, care, and freedom

from abuse, neglect, or exploitation. In addition to this, the right to confidentiality is included in

this legislation as no individual having access to confidential information may disclose it unless

it pertains to certain circumstances that are listed. For example, confidential information may be

provided to another party in the instance that writes a release to their information; if the client is
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TO WARN

injurious to their own mental or physical well-being, as determined by a physician; if reports are

needed to fulfill advocacy functions; in the case of abuse or neglect. In regards to privileged

communication, per North Carolina law (N.C.G.S) § 8-53.8, a licensed counselor is not required

to disclose any information acquired during counseling. However, if a judge of a superior district

court compels this information is necessary for proper execution of justice, this disclosure is not

prohibited by statute or regulation. As seen in the statutes of North Carolina law, the legislation

priorities the confidentiality of the client and respects privileged communication in the

counseling relationship. Only few exceptions, such as harm of oneself or others, are cited as

reason for possible disclosure of this precious right.

As a counselor, I believe this law upholds the standards that are preached by the ACA

Code of Ethics and the moral and ethical codes we individually practice in the field. North

Carolina, alongside the helping profession, prioritizes the rights of the client but also

acknowledges that there may be instances in which the rights of others need to be upheld, as

well. In the rare instances that confidentiality may be breached in North Carolina law, it is to

protect the client or others. As a client, this may cause some weariness for my confidentiality

may come secondary to a judicial request but the rarity of such a request or instance would be

explained in further detail in the intake session when discussing client rights; this should ease

any possible fear or hesitation the client may have regarding the breach of confidentiality.

One of four states that does not have a duty to protect or warn, North Carolina leaves this

decision to the mental health professional. In 2002, a client made multiple threats to kill his wife

in session with a psychologist. Because the client did not meet criteria to be involuntarily

committed, the psychologist released him from the hospital and the client then killed himself and

his wife. This case, Gregory vs Kilbride, 150 NC App 601, 565 SE 2d 685, (2002), helped set the
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North Carolina standard that it is the decision of the helper to warn third parties. The standard in

the state is now that there is no mandated duty to warn nor prohibition of duty to warn; it is a

decision that must be made by the psychologist. To make this decision, they must argue breaking

confidentiality against the potential harm of others as well as how they must warn the parties, if

they choose to do so. Although this statute specifically states “psychologist”, it has set the

standard for helpers and whether they have the right to or are required to warn in instances of

harm. This decision is one that must be made in accordance to the codes a counselor abides by in

practice, such as nonmaleficence, beneficence and justice, to ensure that the client and their

wellbeing is the priority of all interactions and decisions made in the counseling relationship.

While I understand the findings of the Kilbride case and why it led to the decision of

North Carolina to leave it up to the professional, I was surprised to find that the state does not

mandate duty to warn while they have such strict laws on universal mandated reporting in cases

of abuse. For me, duty to warn is premise to mandated reporting; warning an individual that they

are at risk is comparable to letting authorities know an individual is being abused. It’s almost a

preventative step to cases of abuse or neglect but the instance involves individuals are not minors

or disabled. Especially reading the macabre outcome of the Kilbride case, I suspected it would be

mandatory in North Carolina. Leaving this decision up to the helper does give us more

responsibility to properly use the insight provided by the client and practice our ethical, moral,

and professional codes. It also, however, adds more pressure to the role as the counselor in

instances of grey areas. In the example of the Kilbride case, I would have ensured the individual

was warned that they were at risk after numerous threats were made.

North Carolina follows the law of universal mandated reporting (N.C.G.S) § 7B-301.

Regardless of institution, an individual must report if they suspect any child is being abused,
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neglected, or maltreated. The only exception to this is if this is within the privilege of attorney-

client communication. Within these guidelines, the person must contact the department of social

services where the minor lives in a report provided orally, by telephone, or handwritten letter.

Failure to report suspected abuse of a child will result in being found guilty of a Class 1

misdemeanor by North Carolina law. The law not only protects minors from possible neglect,

abuse, or mistreatment but also disabled adults including geriatrics. In the event that one suspects

or is aware that elder abuse is taking place and an individual requires protective services, a report

must be made to the proper authorities. With this, anyone who testifies or participates in a report

of elder abuse is immune from civil or criminal liability related to their participation or

testimony.

The benefit of these protective laws is the ability to ensure at-risk populations safety

without having to fear reprimand in a legal manner. The counselor does not have to fear breaking

laws of confidentiality in these instances and does not have to battle their own moral or ethical

codes with state laws; this reduces stress in decision-making and debating on the rights of the

client. It also echoes the professional standard of counselors to do no harm. Although we may be

breaching confidentiality, we are ensuring the safety of others, our most precious professional

duty.

As a future counselor in the Tarheel State, I am glad to know that the state’s legal statutes

uphold the premises that we, as helpers, agree to uphold. Autonomy, nonmaleficence,

beneficence, justice, fidelity, and veracity are the professional values maintained in practice with

each client. However, in certain instances when the best resolution involves breaking codes of

confidentiality, state law makes all attempts to protect the clients and other third parties. Leaving

the decision of duty to warn to the professionals illustrates the states confidence in the profession
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and allows helpers to exercise their rights as needed while keeping their client in mind as top

priority. Also, our duty to do no harm is illustrated in the universal mandatory reporting to ensure

the safety of not only our clients, but the rest of the population, as well. With these state laws,

codes of ethics, and moral and ethical guidelines, each counselor in North Carolina is allowed to

practice helping to their best ability.

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References

American Counseling Association. (2014). ACA code of ethics.

https://www.counseling.org/resources/aca-code-of-ethics.pdf

Gregory v Kilbride (NC Court of Appeals June 18, 2002).

North Carolina General Assembly. (2019). General Statute 122C-52. Retrieved October 31, 2020

from: http://www.ncga.state.nc.us/gascripts/statutes/statutelookup.pl?statute=122C-52.

North Carolina General Assembly. (2019). General Statute 8-53.8. Retrieved October 31, 2020

from: http://www.ncga.state.nc.us/gascripts/statutes/statutelookup.pl?statute=8-53.8.

North Carolina General Assembly. (2019). General Statute 7B-301. Retrieved October 31, 2020

from: http://www.ncga.state.nc.us/gascripts/statutes/statutelookup.pl?statute=7b-301.