AVOIDING LIABILITY BLOG

Cooperation With Child Abuse Investigator (?)

November 2009

… While practitioners must be mindful of the duty of confidentiality and must instinctively lean toward resisting (at least initially) disclosures without the patient’s signed authorization, it is also useful for practitioners to know well the exceptions to confidentiality – those that are required and those that are permissible. When some form of disclosure is mandated, the decision of the therapist or counselor (assuming awareness) is easy. When the disclosure is permissive, it does not necessarily follow that the practitioner should or will disclose without a written authorization. One hopefully interesting example follows.

The primary and most significant exceptions to confidentiality are found in the laws dealing with the mandates for counselors and therapists to report known or reasonable suspicion (or a similar standard) of child abuse, elder abuse, and dependent adult abuse. Connected with these duties is the issue of whether or not a therapist or counselor, after making such a report, is required or permitted to cooperate with the investigator of the abuse who desires further information, perhaps appearing at the office of the practitioner who made the report – either announced or announced. For example, in one state the law provides that information relevant to the incident of child abuse or neglect may be given to an investigator from an agency that is investigating the known or suspected case of child abuse or neglect.

What is the law in your state with respect to giving information to the investigator after you have filed the mandatory report(s)? I have counseled therapists in California around this issue for many years – and each situation is different. For example, if the therapist were treating the alleged perpetrator of physical or sexual abuse that was revealed and reported during the course of therapy, I would more often than not advise the therapist not to cooperate with the investigator. Of course, if the therapist discusses the matter with the patient and/or with the patient’s attorney, the patient may sign an authorization form allowing the therapist to communicate with the investigator. While the law allows the communication without the patient’s written authorization, it does not mandate it. My view has been that the reporting laws are intrusion enough into confidentiality (although well-accepted at this time), and that there is no need or duty to help with an investigation.

If the practitioner is treating the victim of the abuse, such as a child, the therapist or counselor may be more inclined to cooperate with the investigator. Again, even though the therapist would be able to cooperate with the investigator pursuant to the aforementioned law, that isn’t necessarily the wisest decision. In some cases, the written authorization of both parents would be desired and easy to get, while in others, the written authorization of only one of the parents may be necessary. In some states, depending upon the age of the child and the circumstances involved (such as, being the victim of child abuse), only the child’s authorization is needed – so why not get it? There will be times when a practitioner may choose to provide additional information to the investigator without the patient’s authorization – but the practitioner must first be certain that state law allows this to be done Something that may need to be avoided, in my view, is the effort by an investigator to have ongoing contact with the therapist – expecting to periodically obtain information. Such situations can be awkward or problematic, whether with or without an authorization.

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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