AVOIDING LIABILITY BLOG

Confidentiality and Collateral Visits

October 2012

… Suppose that a mental health practitioner is seeing a couple for couple therapy. Suppose further that the practitioner desires to see the adult child of the couple for one or two sessions in order to better assess and treat the couple. This is generally considered to be a collateral visit, which usually involves a spouse, partner, sibling, or other family member related to the identified patient. With respect to insurance billing and reimbursement, a collateral visit is generally understood to be medically or psychologically necessary for the treatment of the patient, and it is primarily for the purpose of information exchange regarding the patient or for implementation of the treatment goals for the patient. Typically, the identified patient would pay for the session to be held with the person seen collaterally since the collateral visit is intended to further the interests of the patient.

What degree of confidentiality is the adult child entitled to, and what should the practitioner be telling the child and the couple regarding the nature of the relationship between the practitioner and the adult child? Perhaps the most important thing to be communicated to the adult child is that he or she is not considered by the therapist to be a patient and is not present for the purposes of his or her own diagnosis or treatment. Rather, the adult child is being seen by the practitioner in order to further the interests of the couple in their treatment. The practitioner must be careful when making these statements because in some states the definition of “patient” may arguably be broad enough to include someone who is being seen in a collateral visit.

For example, California’s laws on confidentiality define “patient” as any natural person, whether or not still living, who received health care services from a provider of health care and to whom medical information pertains. “Medical information” might arguably include information obtained from the person seen collaterally since that term includes information about the person’s medical history, mental condition, or physical condition. However, there is the question of whether the person being seen in the collateral visit received “health care services” from the practitioner? I would argue “no.” Thus, in California, the typical collateral visit does not in my view result in a therapist-patient relationship entitled to the full protections of the duty of confidentiality and the full protections of the psychotherapist-patient privilege.

While it is possible that state law or professional ethical standards may address this subject matter and provide some guidance, my impression is that there is not much directly addressing these issues. It seems to me that most practitioners would want to let the person who is being seen collaterally know that his or her communications with the practitioner are not entitled to the same confidentiality as that enjoyed by the patient. For example, practitioners will usually want to inform the person being seen collaterally that the practitioner is free to share the information gained in those individual sessions with the patient (in this example, the couple) to the extent that the practitioner deems clinically necessary or appropriate – unless there is an express agreement to the contrary. If the person being seen collaterally requests that certain information be kept confidential and that it not be shared with the patient, the practitioner must be mindful that the patient may later allege that the therapist was wrongfully keeping secrets from the patient at the request of a non-patient. While such an assertion might be adequately answered in some cases, the request for confidentiality of certain information should only be agreed to when clinically appropriate or necessary.

The person being seen collaterally can reasonably expect that the practitioner will fulfill his or her duty of confidentiality owed to the patient being seen. In other words, the information and the records will be shared with no third party, unless disclosure is required or permitted by law, or unless the patient signs an authorization allowing some or all of the information to be released to a third party, such as an insurance company or an HMO. Thus, in effect, there is a considerable degree of confidentiality protection for the person who is seen collaterally. The therapist and the patient should remain mindful of the fact that there is information in the file relating to the person who saw the therapist collaterally so that efforts can be made, if appropriate, to protect that information from disclosure when there is a request for records or a subpoena for records .

The practitioner may also want to let the person being seen collaterally know that because he or she is not the patient, the records of these sessions will be kept as a part of the treatment records of the couple – and are considered a part of the couple’s records. Thus, if the patient has a right to inspect or copy his or records under state law, the confidentiality of the person seen collaterally may be compromised. In some states, practitioners may be able to remove information from the records that was received in confidence from someone other than the patient or another health care provider, if and when the patient seeks access. While practitioners typically do not get into discussions about the psychotherapist-patient privilege at the outset of the professional relationship, and while state law may vary, it is my view that the patient (in this case, the couple) is the “holder of the privilege” and may therefore assert or claim the privilege when any part of their records (including the records kept re: the collateral visit) is subpoenaed.

Caveat: The discussions that a practitioner would have with the patient and with the person being seen collaterally about confidentiality, privilege, and the nature of the relationship with the person being seen in one or more collateral visits, may vary with the circumstances presented and with applicable ethical principles and state law or regulation. Such discussions should, at a minimum, be documented in the patient’s treatment records.

ABOUT THE AUTHOR

Richard Leslie: Avoiding Liability Bulletin

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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