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| Avoiding Liability Bulletin |
May 2008, Volume 1 |
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by Richard S. Leslie, J.D. Click here for profile.
Attorney at Law - "At the Intersection of Law and Psychotherapy"
Child Abuse - Emancipation of Minor
… What is the effect, if any, of your state’s
emancipation of minor laws on your duty as a mandated reporter of child abuse?
The answer to this question varies from state to state, but it is an important
question to think about and to answer. One example of how this question may
arise involves consensual sexual intercourse between minors or between a minor
and an adult. Suppose that a fifteen-year old minor tells her therapist or
counselor that she engaged in consensual sexual intercourse with her twenty-two
year old friend. Suppose further that such information must be reported by the
practitioner as a part of his or her duty to report known or suspected child
abuse.
Does the duty to report change if the minor
tells the therapist that she has been declared by the court to be emancipated?
In order to answer this question, reference must be made both to the child
abuse reporting law and to the laws dealing with emancipation of a minor. For
instance, how does the child abuse reporting law define the word “child?” Does
the child abuse reporting law mention anything about emancipated minors, and if
so, does it provide the necessary guidance? In some states, the definition of
“child,” for purposes of reporting child abuse, is simply “ a person under the
age of eighteen.” No reference may be made to an emancipated minor. In such
case, it is important to look at the statutes dealing with emancipation.
The laws dealing with emancipation will
typically specify the age at which emancipation may be petitioned for by the
minor and/or a parent. In one state, the age is as low as fourteen. In that
state, there is also a statute that specifies the legal effects of
emancipation. That law specifies that an emancipated minor can enter into legally
binding contracts, own real property, establish his/her own residence, sue or
be sued, and consent to medical, dental or psychiatric care without parental
consent, knowledge or liability, among other things. This law, however, does
not say anything about the minor no longer being subject to the child abuse
reporting laws because of his or her emancipation. Thus, since the child abuse
and neglect reporting law in that state defines a minor as a person under the
age of eighteen, emancipation would apparently have no effect upon the duty to
report child abuse under the circumstances specified above.
Not every question, however, is as easy to answer.
Suppose, for example, that the emancipated minor in the question posed in the
first paragraph is married to the twenty-two year old. Would sexual intercourse
between the two married persons be required to be reported as child abuse? A
review of the applicable laws in the state in question reveals that there is an
exception made in the case of sexual intercourse between spouses. In any event,
it seems highly unlikely that a child protective services agency would
investigate a report of child abuse if a report were made for the consensual
sexual intercourse of a fifteen year old with her adult husband. It must be mentioned
that just because the minor indicates that she is emancipated and lawfully
married, that does not make it so. Sometimes patients lie or are mistaken. And
further, therapists and counselors are not generally expected or required to
investigate. Thus, a therapist involved in such a situation might, depending upon circumstances, need to
call child protective services and report the facts (and indicate that in his
or her opinion this does not appear to be child abuse) and either allow CPS to
investigate and then close the case or to decide from the outset that no report
will be taken or that no report need be made.
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Confidentiality - Exception
… What is the right of a therapist or
counselor to communicate with other health care providers or facilities without
the patient’s written authorization? This is an important question to answer.
Each state may treat the answer somewhat differently. For HIPAA covered
providers, the federal government has enacted regulations that make clear that
such communications may be made without the patient’s written authorization –
provided that the disclosures are for the purposes of the diagnosis or
treatment of the patient. Pursuant to these federal regulations (known as the
“Privacy Rule”), patients are required to be informed of this information in
the required Notice of Privacy Practices” document. For those who are not
covered by HIPAA, state law applies.
HIPAA regulations in this area of the law
(confidentiality and privacy) were in large part patterned after California law
– the Confidentiality of Medical Information Act. That act, which covers
physicians, psychotherapists, and others, has long recognized that disclosures
can be made between health care providers, without the patient’s written
authorization, for purposes of diagnosis or treatment of the patient.
California law imposes no requirement upon the practitioner to first disclose
this information to the patient, although practitioners may do so in a
disclosure statement that, among other things, describes the exceptions to
confidentiality. Thus, practitioners in California may consult with their
licensed colleagues about a case (and disclose the name of the patient) without
the patient’s prior written authorization. Is there a similar law in your
state? What exactly does it allow and/or require?
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Privilege - A Common Waiver
… The psychotherapist-patient privilege is an
important aspect of patient privacy. As has previously been written about in
these pages, the privilege generally “belongs” to the patient and can be
claimed (asserted) or waived by the patient. It is different from
confidentiality. Privilege involves the right to withhold testimony in a legal
proceeding. The privilege, however, is not absolute. Thus, there are times when
the privilege may not apply – such as, when the patient has put into issue in a
lawsuit his or her mental and emotional condition. This typically occurs when
the patient alleges that he or she suffered mental and emotional distress as a
result of the negligence of the defendant.
While this is primarily a legal issue
affecting the introduction of evidence, it is important for practitioners to be
aware of this exception. Patients or clients will often be surprised when they
learn that a subpoena has been served for their records or the therapist’s
testimony, and when they are for the first time informed that they have waived
the privilege by making the assertions they make in the complaint (the formal
pleading). They will sometimes call and express concern or outrage. The practitioner
may need to encourage the patient to talk with the patient’s attorney to fully
understand why it may be necessary to divulge what was thought to be protected
and private. Also, the practitioner may want to alert the patient or the
patient’s attorney to the existence of material in the file that may be “highly
charged.”
In most, if not all, states, it is possible for the
patient’s attorney to seek a protective order in order to suppress disclosure
of particularly sensitive matters. This can be done in situations where the
information is highly embarrassing or prejudicial, but of little probative
value. While each case is different, be assured that the lawyer on the other
side of the issue will likely argue against the issuance of a protective order.
In such situations, it is important for the practitioner to be aware of the
content of his or her records, and to alert the patient to the fact that
disclosure may be compelled because of the apparent waiver of the privilege by
the allegation in the lawsuit of mental and emotional distress or psychological
harm.
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Records - Destruction at the Request of the Patient?
… Some states may not have a law that specifies
the length of time that patient records must be maintained, but may leave it to
the discretion of the practitioner and perhaps applicable ethical standards.
Many states, however, do have laws that specify the length of time that patient
records must be kept by a therapist or counselor. Do these laws provide for any
discretion by the practitioner to comply with the wishes of the
patient/consumer for early destruction? Suppose that a high profile patient
shares with his or her therapist information of a highly personal or
embarrassing nature. Suppose further that after the passage of three years from
the time of termination, the patient asks the practitioner to destroy the
records in order to protect his or her privacy. If the practitioner agrees to
do this, is it permissible? What if the practitioner decides to write a summary
and destroy the more revealing full record and the patient agrees? Is this
permissible? Something to think about and check out!
Printable Versions: [ Download WORD.doc ] [ Download Acrobat.pdf ]
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