 HEN
you seek private
psychological treatment, only two individuals know everything that occurs
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 occurs 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.
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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) |
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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).
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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.
The Patriot Act of 2001, however,
allows law enforcement agencies access to patients’ medical records
without a court issued warrant—and without the knowledge of
patients. |
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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—not even the fact that
you are or were a client—can be told to anyone else (except law enforcement
agencies per the Patriot Act) without your permission. That’s why you have
to sign a Release of Information (ROI) form to have your psychotherapist
give any information about your case to anyone you specify (such as another
psychotherapist, a physician, or an insurance company).
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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, not an electronic pdf file, 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. |
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Criminal
Activity.
“What if I have committed a crime?” some individuals ask. Well,
even criminal activity is protected by psychotherapeutic confidentiality
(except from law enforcement agencies per the Patriot Act). But, if 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, your
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 the insurance company gets it? Anywhere it wants.
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; |
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• |
Where there
is a reasonable suspicion that you may present a danger of violence to
others; |
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• |
Where there
is a reasonable suspicion that you are likely to harm yourself unless protective
measures are taken. |
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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. |
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Finally, the broadest
exception to confidentiality derives from the Patriot Act of 2001 which gives law
enforcement agencies free access to all your patient records without a court warrant
and without notifying you.
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.
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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. |
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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:
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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. |
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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—including showing it to the
client—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;
261-269, Child 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 (including the making or
downloading of media depictions of sexual activity with children); 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.”
No
advertising—no sponsor—just the simple truth . . .
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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
SEARCH this
website
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