AVOIDING LIABILITY BLOG

PARENTAL RIGHTS TO ACCESS CHILD’S RECORDS

October 2013

… When a child (under eighteen years of age) is the identified patient and is being treated by a mental health practitioner, what rights do the parents have to inspect, review, or obtain copies of the records of the child? Does the minor’s right to confidentiality trump the parental rights to access the records? These interrelated questions may not arise often, but when they do, they present interesting and sometimes troublesome questions for the practitioner. Reference to state law (which varies from state to state) and perhaps to ethical standards (which may also vary from one professional organization to another) is essential to determining the answers to the questions that may arise in a particular situation.

As a general matter, the mandatory and permissive exceptions to confidentiality applicable to the treatment of adults may also be applicable to minors. For example the duties to report child abuse, elder abuse, or dependent adult abuse apply whether or not the patient is a minor or an adult. Once the practitioner has reasonable suspicion or knowledge of any such abuse, a report is required. With respect to dangerous patients, whether the danger is to self or to others, the practitioner may be permitted or required to break confidentiality regardless of the age of the patient.

Access to the minor patient’s records by a parent presents a slightly different situation. Because the parent is legally responsible for the overall well-being of the minor child, the parent has a legal interest in the health and treatment of the child. Sometimes, a parent can be informed about the condition or the progress of treatment of their child in general terms, often with the knowledge and consent of the minor. But there are many situations where confidentiality must be maintained and where a request for access from a parent must or should be denied.

There is a statute in California that provides that access to records and information pertaining to a minor child, including, but not limited to medical, dental, and school records shall not be denied to a parent because that parent is not the child’s custodial parent. There is some dispute in California as to the meaning of the term “custodial parent,” and difficult situations can be presented where a parent with legal and physical custody objects to the therapist allowing access to a parent who has no legal or physical custody of the child. In such situations, the therapist is usually well-advised to look at another set of laws that govern the right or duty of the practitioner to deny access to the requesting parent.

In California, the law provides that the representative of a minor (a parent or guardian, for example) shall not be entitled to inspect or obtain copies of the records of their minor child if the minor child is allowed under state law to inspect the records. As a practical matter, that means that almost all patients who are twelve years of age or over would control whether a parent could have access to the child’s treatment records. Additionally, the law provides that the parent shall not be entitled to access the minor’s records if the therapist determines that such access would have a detrimental effect upon the provider’s professional relationship with the minor or the minor’s physical safety or psychological well-being. This law also provides that the decision of the health care provider as to whether or not a minor’s records are available for inspection or copying shall not attach any liability to the provider, unless the decision is found to be in bad faith.

What about parental access in your state? When may you deny access? When must you deny access? Is there any protection afforded you when such a decision is made? At what age does the minor control whether or not access by the parent is appropriate?

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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