Psychological Counseling and Confidentiality: Law or Contract

A person’s qualifications determine whether they are bound by confidentiality. The term “counseling” is of secondary importance. The legal duty of confidentiality under Section 203 of the Criminal Code (StGB) depends on the professional group: It applies to licensed psychotherapists (a healing profession with state-regulated training), to professional psychologists with state-recognized degrees, to state-recognized social workers and social educators, and to certain counselors at a recognized counseling center. Anyone who does not belong to one of these groups promises confidentiality by contract.

The Right to Refuse to Testify in Criminal Proceedings

In criminal proceedings, there is a third level: the right to refuse to testify under Section 53 of the Code of Criminal Procedure (StPO). Psychotherapists are entitled to this right; a degree in psychology alone does not confer it. Different rules apply in other types of court proceedings.

Counseling Is Part of the Profession

Licensed psychotherapists bring their duty of confidentiality into counseling, because counseling is part of their profession: “In addition to psychotherapy, the profession of psychotherapists also includes counseling, prevention, and rehabilitation,” states the Psychotherapists Act (PsychThG). The duty of confidentiality therefore applies even when no treatment is taking place. Almost everywhere, the market advertises confidentiality. The question that matters is what it is based on. My own confidentiality is based on exactly that: I offer counseling under a legal duty of confidentiality.