AVOIDING LIABILITY BLOG

Couple Being Treated

April 2006

… Therapists and counselors often let patients know about confidentiality and the exceptions to confidentiality in a disclosure statement, given to the patient prior to the commencement of treatment. Such a statement may be required by law or by regulation. When the identified patient is the couple, it is important to be clear with the couple as to a variety of confidentiality issues and questions that may arise, such as who owns the records, when will information be released to third parties, how will the therapist or counselor react to a subpoena for records, and under what conditions will the therapist or counselor provide a copy of the records to one of the participants in couple therapy.

To the extent that state law may differ with the following information, therapists and counselors should abide by state law. As to the question of who owns the records, typically the records are the property of the therapist or counselor. They are, in essence, the business records of the owner of the business – in this case, a therapy or counseling practice. Patients of course have a substantial interest in the records, and under state law, likely have certain rights of access (e.g., inspection and copying) and perhaps the right to amend or addend. But the records belong to the practitioner. As to releasing the records to third parties, I have usually recommended that this be done only upon a written authorization, signed by both parties.

Participants in couple therapy should be told that one of them alone does not control what happens with the records – they each have the right to confidentiality, and one of them alone cannot waive the other’s rights. In other words, both must agree in order for the therapist or counselor to act. For instance, a request for a copy of the records would have to come from both parties, or from one with the authorization or approval of the other. After all, the identified patient is the couple. With regard to a subpoena, the therapist or counselor will usually take the position that both must waive the privilege before the records are released, or if both claim the privilege, then the practitioner would typically continue to assert the privilege until the court orders otherwise. Again, if state law differs with any of the above, practitioners should abide by state law.

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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