Access to Records – “Noncustodial Parent”

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Avoiding Liability Bulletin – April 2007

… It is important for therapists and counselors to know the law with respect to parental access to a minor patient’s mental health records. Most state laws allow (or require) practitioners to deny access to the complete records under specified circumstances. Some states allow for preparation of a summary of the records in lieu of providing the actual records – again under specified circumstances. These laws vary widely and they must be thoroughly understood.

One controversial aspect of this topic involves the question of whether or not a parent can be denied access to the minor’s mental health records solely for the reason that the parent is not the “custodial parent” (the parent with whom the child resides). Non-custodial parents generally cannot be denied access solely because the child does not reside with them. A more troublesome question arises when the non-custodial parent also does not have legal custody of the child (e.g., the other parent has sole legal and physical custody).

I have recently done some research in this regard (in relation to proposed legislation I am involved with) and the only thing that is clear is that there exists great diversity in the way this issue is addressed in the various states.

Some states hold to the proposition that a parent who does not possess any form of legal custody (sole or joint) can be denied access to the child’s mental health records. Other states do not allow access by the parent only if the loss of legal custody was the result of child abuse, domestic violence, or other “bad” behavior. In other words, access to the minor’s records cannot be denied in those latter states solely because the demanding parent does not possess any form of physical or legal custody. It must always be remembered, however, that access to the records may be able to be denied for a variety of other appropriate reasons.

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Richard Leslie

"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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