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Page Contents: Introduction / Your Chart / Privilege / Exceptions to Confidentiality / Children, Couples, Families, and Groups / Deceased Clients / Providing Information / Laws Related to Confidentiality

 

 
WHEN you seek private psychological treatment, only two individuals know everything that happens in each session. One of these persons, of course, is you. The other person is the psychotherapist treating you.

Now, it’s simply a matter of common sense to realize that you can tell anyone you want however much you want about what happens in your sessions. It may not be wise to do so, because some clinical experiences, such as dreams, are best kept private. The entire psychotherapeutic experience, in my opinion, deserves a great deal of respect and reverence if it is to be successful. Still, it’s your life, and so it’s your right to tell anyone who will listen to you what you do with your life.

But what about your psychotherapist? What is he or she supposed to do with all the personal information you reveal in each session? What are your rights to privacy?

 

Your Chart

In the US, federal laws governing the nature and confidentiality of mental health records may be overridden by more stringent state laws, so psychological practice can vary from state to state, but, in general, a psychotherapist is required to keep some basic records (per the American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct.

  

Psychologists create, and to the extent the records are under their control, maintain, disseminate, store, retain, and dispose of records and data relating to their professional and scientific work in order to (1) facilitate provision of services later by them or by other professionals, (2) allow for replication of research design and analyses, (3) meet institutional requirements, (4) ensure accuracy of billing and payments, and (5) ensure compliance with law. (APA Ethical Principles of Psychologists and Code of Conduct, 6.01)

  

 
In California, per CA Health and Safety Code § 123105, the patient record (your “chart”) should consist of the dates of your sessions; your fees and payments; clinical information (if any) such as diagnosis, treatment plan, records of psychological testing, and records gathered from other providers; and psychotherapy notes that describe and justify your treatment.

According to California law, you “own” your chart. Yes, the psychotherapist owns the paper on which everything is printed and the folder in which it is all contained, but you have a right to look at everything in your chart if you want (per CA Health and Safety Code § 123100-123149.5).

  

Note that Federal law, per the Health Insurance Portability and Accountability Act (HIPAA), gives psychotherapists the freedom to keep psychotherapy notes confidential from everyone, even from patients. California law, however, being more strict in regard to patient rights, allows patients access to all that the clinical record contains.

  

 
In my opinion, if you were to look at your chart, you shouldn’t be surprised by anything, because if your psychotherapist is doing a good honest job, you should be told everything about your case as you go along.

Clearly, much more happens in each session than gets recorded in your chart though. What about that?

 

Privilege

Psychological practice uses the word privilege to describe the legal right of keeping your clinical records confidential. (In California, this right is established in CA Evidence Code § 1014.) Because this right, in the strict legal sense, is thought of as a “thing,” psychological practice talks about “holding” the privilege. So who holds it?

Well, as I said earlier, you, the client, do. You hold the privilege of knowing and telling about your life, and you hold the privilege of determining what happens to your clinical records.

But your psychotherapist also knows about your life. Quite a bit in fact. Not just what’s in your chart, but everything you say and everything in between, including the simple fact of your being a client. Therefore, according to the principle of confidentiality, your psychotherapist is required to hold the privilege for you—even after therapy has terminated. This means that nothing he or she knows about you can be told to anyone else without your permission. Period. Not even the fact that you’re a client. That’s why you have to sign a Release of Information (ROI) form to have your psychotherapist give any information about your case to any other person, such as a physician.

  

In my practice, if I receive an ROI requesting information to be sent to a third party, I require my client’s original signature on the form—not a fax and not a copy—and even then I will check with my client to make sure the client really wants the information to be released.

  

 
Criminal Activity. “What if I have committed a crime?” some individuals ask. Well, even criminal activity is protected by psychotherapeutic confidentiality. So you can relax, if that happens to be your particular concern—unless, of course, you are still engaged in criminal activity which jeopardizes the life or safety of others, and you reveal the details of this activity in psychotherapy. Such a case could fall under one of the exceptions to confidentiality (see below).

 
Suicide. “What if I talk about suicide? Not that I plan to kill myself, but sometimes I think about suicide. If I tell you about these thoughts, will you put me in hospital?” is a common concern. Actually, the issue here is whether there is a reasonable suspicion that you are likely to kill yourself. So just thinking about suicide doesn’t necessarily warrant any extreme action on the part of the psychotherapist. A good psychotherapist should know how to spot the difference between fantasy and real danger and should know how to work clinically with all your fantasies, however dark and fearful.

 
Insurance. If you read the fine print, you’ll notice that when (or if) you sign an insurance form you are authorizing your psychotherapist to give any information to anyone in the insurance company—and this means anyone, even a secretary, not necessarily another mental health professional—who demands it. If your psychotherapist refuses to release the information, he or she does not get paid. And where does all this intimate information about you go when they get it? Anywhere they want.

 

Exceptions to Confidentiality

In California law, there are several exceptions to the confidentiality of psychotherapy (see the details of these laws, below).

Three of these exceptions to confidentiality concern harm to self or others:

Where there is a reasonable suspicion of child abuse or elder adult physical abuse;

  

Where there is a reasonable suspicion that you may present a danger of violence to others;

Where there is a reasonable suspicion that you are likely to harm yourself unless protective measures are taken.

In all of the above cases, the psychotherapist is either allowed or required by law to break confidentiality in order to protect you, or someone you might endanger, from harm.

 
You should also understand that if the issue of your psychological treatment is raised during the course of a lawsuit, your psychotherapist might be forced by the court to reveal the details of your treatment (per CA Evidence Code § 1016). In such a case, if your psychotherapist receives a subpoena from an attorney to provide copies of your clinical records, the psychotherapist must claim privilege for you (per CA Evidence Code § 1015), and you

may waive privilege and allow the psychotherapist to provide the subpoenaed information; or

  

may invoke privilege and refuse to allow the release of information. In this case, the trial judge will determine whether your psychotherapist must release information—and the judge can issue a court order which your psychotherapist must obey, despite your protests.

 

Children, Couples, Families, and Groups

As I said earlier, the client holds the privilege for the psychotherapy, and the psychotherapist holds the privilege for the client. But if the “the client” is more than one person, or a minor without legal rights, then things can get complicated.

Each of these cases requires special consideration, and principles may vary by state law. If you have questions, contact your state’s Board of Psychology—or a lawyer.

 
Children. The subject of privilege in regard to children can get very complicated. When a child is a minor without legal rights, the child’s parents are often considered to be the legal client.

But California law, for example, does not distinguish a child from an adult when speaking about a patient in psychotherapy. California law makes no general statements about children and privilege, and only a few explicit statements (see CA Welf. & Inst. Code § 317(f)):

If a child is a ward of the court, the court holds the privilege unless the court determines that the child is of sufficient age and maturity to hold his or her own privilege.

  

If a child in Dependency Court has legal counsel, then counsel holds the privilege, but if the child is of sufficient age and maturity the child may waive privilege even if counsel invokes it.

California law also says that if anyone (not just a child) has a legal guardian, then the guardian holds the privilege. But, believe it or not, in legal language parents are not legal guardians.

So where does all this leave children? Well, in one case (In Re Daniel, C.H. (1990) 220 Cal.App.3d 814) it was ruled that the child held the privilege. (Mind you, this was case law, not legislative law, but it can set the precedent for future cases.)

Common sense, of course, would tell us that in situations that do not involve hostility (such as providing information about a child’s private psychotherapy to a school counselor) both the child and the parents should be in agreement, and that no matter who signs the release basic human charity should prevail and there shouldn’t be any unfortunate consequences.

But when child psychotherapy occurs in the context of a legal proceeding such as divorce, the issue of privilege (that is, the issue of which of the parents has the right to release information about the child’s psychotherapy—usually so that it can be used as a weapon against the other parent) may require legal counsel. And the whole issue can become one more bitter fight in the overall battle between hostile parents—and one more psychological wound for the child to survive.

  

It should be noted, though, that when a child must be in psychotherapy, the success of the treatment usually requires (a) that the child have some privacy and that the parents not be told everything that happens in the treatment, and (b) that the parents be kept informed of the child’s progress and be notified of serious problems such as substance abuse and sexual activity. These matters must be negotiated with the psychotherapist right at the beginning of the treatment.

  

 
Couples and Families. Generally, couples and families hold privilege jointly. But things can get complicated if one individual tells the psychotherapist a “secret” in an individual session; this possibility must be discussed with the psychotherapist before treatment begins. Things can also get complicated if one member of a couple or family wants information released but another person doesn’t; if the psychotherapist releases information in such a case, without the consent of everyone involved, the psychotherapist can be sued by the objecting person(s) for breach of confidentiality.

 
Psychotherapy Groups. Psychotherapy groups have to make special arrangements in regard to confidentiality. Although group members can talk outside the group about anything that happens to them personally in the group, they still have to be careful not to say anything which might betray the confidentiality of other group members. This should all be made clear in the first session.

 

Deceased Clients

If a person dies while in psychotherapy or after psychotherapy, privilege transfers to the legal representative of the deceased (e.g., the executor of the will of the deceased), as per CA Evidence Code § 1013(c).

 

Providing Information to a Psychotherapist

One final issue about confidentiality concerns something that confuses many persons. Consider the following question:

  

Can I send information to my 22 year old (dependent) daughters’ psychiatrist? I have paid $4,000 in therapy over the last 4 months. I don’t want any info in return. I want to protect confidentiality of treatment—but I don’t believe my daughter has been honest with the therapist about some of the issues she is facing . . . which will lead her shortly to be without my health benefits and unable to care for herself. . . . I fear . . . there are other significant issues that I doubt her psychiatrist is aware of, but that I observe as a parent, and I think the psychiatrist should know. . . . I am happy to pay for real help, but I fear she is covering up a lot and that I am paying for her to talk mostly about her roommates and not the issues that she really has. . . . What rights do I have to provide information? My daughter does not wish for me to contact the therapist.

  

Actually, anyone is quite free to call another person’s psychotherapist to provide any information about that person—unless, of course, the person providing the information is also bound by professional confidentiality to the person in question. Confidentiality refers to the relationship between a client and the psychotherapist. This means that no psychotherapist can release information about any client without the client’s approval. But nothing in the area of confidentiality says that the psychotherapist cannot receive information from anyone. So, in such a case, all you have to do is call the psychotherapist, identify yourself, state that you understand that the psychotherapist cannot acknowledge that any particular person is a client, but that you want to provide some information if only the psychotherapist will listen. Most likely, the psychotherapist will say, “OK.” After all, any information can be helpful. Just don’t ask the psychotherapist to make any comments about what you say. After you finish giving the information, all the psychotherapist can say is, “Thank you.” What the psychotherapist does with the information is purely a matter of professional judgment.

 

 
The Laws
 
Note that in all the following cases, the intent of the disclosure, whether mandated or not, is to protect someone from clear and present danger; once the disclosure is made, the psychotherapist is bound once more by confidentiality and can say nothing more, to anyone, without the client’s consent.
 
 
Danger to Self or Others:
 
CA Evidence Code § 1024:  “There is no privilege...if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger” [emphasis added].
 
Note that there is no mandate here; the law simply protects the psychotherapist from the charge of breach of confidentiality if he or she decides to break confidentiality to protect someone.
 
 
Duty to Warn (“Tarasoff”):
 
CA Civil Code § 43.92 (a):  “There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist as defined in Section 1010 of the Evidence Code in failing to warn of and protect from a patient’s threatened violent behavior or failing to predict and warn of and protect from a patient’s violent behavior except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims” [emphasis added].
 
Since the Tarasoff ruling, two additional cases in California, Ewing v. Goldstein (2004) 120 Cal. App. 4th 807 and Ewing v. Northridge Hospital Medical Center (2004) 120 Cal. App. 4th 1289, extended the Tarasoff rule to include threats disclosed to the therapist by “family members of patients.”
 
Note that the Tarasoff decision established a duty, but not a mandate; it is a court decision about monetary liability and breach of confidentiality. It says that, in general, a psychotherapist can’t be held liable for not breaking confidentiality about threats of violence made within the psychotherapy; nor can the psychotherapist be held liable for failing to predict violent behavior. But, the decision adds, there’s one exception to the general rule. If the threat is serious, if it is communicated directly to the psychotherapist by the patient (or by a creditable third party, as per the Ewing cases), and if the victim can be reasonably identified, then the psychotherapist can be held liable for failing to warn. Got it? The decision doesn’t say that, given the proper conditions, the psychotherapist has to do anything; it just says that, under the proper conditions, the psychotherapist is at risk of getting sued for not doing anything. So Civil Code 43.92 (a), quoted above, essentially implies that, in warning someone when the highly specific need (duty) arises, the psychotherapist will avoid getting sued for not warning anyone, and can’t get sued for breaking confidentiality. Civil Code 43.92 (b) adds that, when making one of these warnings, the psychotherapist should report the impending violence to a law enforcement agency and to the threatened victim(s).
 
 
Mandated Reporting Statutes in CA:
 
Child Abuse: CA Penal Code § 11164-11174.4; 288; 261-269Child Abuse: CA Welf. & Inst. Code § 18951 ff.  In respect to minors, a psychotherapist is mandated to report non-accidental injury inflicted by others; sexual abuse; unjustifiable mental suffering (as in a young child witnessing domestic violence); neglect; cruelty; statutory rape (minor under 16 and other 21 or older, even if consensual); lewd and lascivious conduct (minor under 16 and other 10 years older, even if consensual); consensual sexual contact between minors (where one is 14 years of age and the other is under 14 years of age).
 
Note that the mandate is only in respect to information that arises from within a psychotherapy situation; it doesn’t apply to something witnessed in a grocery store, for example. Also, the intent of the law is to protect children presently in danger; no report would be made regarding an adult who tells about having been abused as a child—unless this adult tells the psychotherapist that the abuser (a) has abused someone else who is still a child or (b) has current access to other children.
 
 
Elderly and Dependent Adults: CA Welf. & Inst. Code § 15630-15632; § 15610-15610.65; § 15633-15637)  In respect to elderly or dependent adults, a psychotherapist is mandated to report physical abuse, including sexual assault; misuse of physical or chemical restraint; neglect; fiduciary abuse; neglect; and isolation.
 
 
Physical Injuries: CA Penal Code § 11160  This law does not affect psychotherapists because they do not provide medical services for a physical condition, but to avoid confusion, the law is as follows:
 
“Any health practitioner employed in a health facility, clinic, physician’s office, local or state public health department, or a clinic or other type of facility operated by a local or state public health department who, in his or her professional capacity or within the scope of his or her employment, provides medical services for a physical condition [emphasis added] to a patient whom he or she knows or reasonably suspects is a person described as follows, shall immediately make a report . . . :
    (1) Any person suffering from any wound or other physical injury inflicted by his or her own act or inflicted by another where the injury is by means of a firearm.
    (2) Any person suffering from any wound or other physical injury inflicted upon the person where the injury is the result of assaultive or abusive conduct.”
 
 
Hospital patients: CA Penal Code § 11161.8  (Hospital patients who have been transferred from a health or community care facility—mandated reporting of abuse, neglect, and assaultive injuries.)
 
The mandated part of this law does not affect psychologists—unless a psychologist is the hospital administrator! The voluntary part of the law does not mention psychologist specifically, so a psychologist who breaks confidentiality under these conditions could get in some deep trouble. When in doubt, seek legal counsel. The law is as follows:
 
“Every person, firm, or corporation conducting any hospital in the state, or the managing agent thereof, or the person managing or in charge of such hospital, or in charge of any ward or part of such hospital, who receives a patient transferred from a health facility, as defined in Section 1250 of the Health and Safety Code or from a community care facility, as defined in Section 1502 of the Health and Safety Code, who exhibits a physical injury or condition which, in the opinion of the admitting physician, reasonably appears to be the result of neglect or abuse, shall report [emphasis added—this is the mandated part] such fact by telephone and in writing, within 36 hours, to both the local police authority having jurisdiction and the county health department.
    “Any registered nurse, licensed vocational nurse, or licensed clinical social worker employed at such hospital may [emphasis added—this is the voluntary part] also make a report under this section, if, in the opinion of such person, a patient exhibits a physical injury or condition which reasonably appears to be the result of neglect or abuse.
    “Every physician and surgeon who has under his charge or care any such patient who exhibits a physical injury or condition which reasonably appears to be the result of neglect or abuse shall make such report.”

 


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Additional Resources
 
Board of Psychology:
Association of State and Provincial Psychology Boards  —provides contact information for all the US and Canadian boards of psychology.
The California Board of Psychology
 
CA Law:
Legislative Council Website —the official site for California legislative information. Search their database for any law you can think of.
CALIFORNIA CIVIL CODE —Table of Contents
CALIFORNIA HEALTH AND SAFETY CODE —Table of Contents
CALIFORNIA EVIDENCE CODE —Table of Contents
CALIFORNIA PENAL CODE —Table of Contents
CALIFORNIA WELFARE AND INSTITUTIONS CODE —Table of Contents
 
Child Abuse:
American Professional Society on the Abuse of Children  “is a membership society dedicated to serving professionals who work in child abuse and neglect and thereby improve the quality of services to maltreated children and the adults who share and influence their lives.”
Child Abuse and Neglect Information Clearinghouse
National Center for Missing and Exploited Children
National Committee to Prevent Child Abuse
 
Ethics:
APA Ethical Principles of Psychologists and Code of Conduct
 
Geriatrics / Elder Abuse:
Elder Abuse  —from Emergency Medicine
The Merck Manual of Geriatrics  : Sec. 1, Ch. 14, Legal and Ethical Issues
 
Related pages within A Guide to Psychology and its Practice:
Consumer Rights and Office Policies
Family Therapy
Legal Issues
The Limits of Psychology
Managed Care and Insurance Issues
Psychology: Clinical or Counseling or ...?
Questions and Answers about Psychotherapy
Reasons to Consult a Psychologist
Termination of Psychotherapy
Types of Treatment
 
Privacy Policy of this website
 
CONTACT ME
 
INDEX of all subjects on this website
 
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Psychology is a complex subject, and many issues are interrelated. And so, even though you may find a topic of interest on one particular page, an exploration of the other pages will deepen your understanding of the human mind and heart.

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Throughout this website, my goal is simply to help you realize that although life can be painful, unfair, and brutal, it doesn’t have to be misery.
 
The practice of good clinical psychology involves something—call it comfort—which does not mean sympathy or soothing, and it certainly doesn’t mean to have your pain “taken away.” It really means to be urged on to take up the cup of your destiny, with courage and honesty.

 

 

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