Avoiding Liability Bulletin – December 2008
… I have previously written about this topic where I addressed the question of the confidentiality duties, if any, of the participants in group therapy. What I explore here is the situation where one of the participants in group therapy or counseling tells the practitioner something when they are not in the presence of the others (perhaps after the group session ends and the others have left) and expects confidentiality. In many of these cases, there has been no promise of confidentiality by the practitioner and there is no individual therapy or counseling taking place. Later, when relevant to the group therapy, the practitioner reveals that which was shared by the one group member. I have seen cases where the individual complains to the licensing board that the practitioner has violated his or her confidentiality.
It has been my view that in most of these matters, the therapist or counselor has done nothing wrong. The disclosures that are made to the group are typically made for the purposes of the treatment of the individuals in the group and for the group as a whole. The disclosures were not made to “third parties” – that is, to those who were not participants in the group counseling/therapy. Typically, no express promise of confidentiality is made. Even though the client may have expected confidentiality, this may not be reasonable under the circumstances. In most of these matters, the practitioner winds up not being disciplined by the licensing board. In a few cases, however, closure of the case does not come easily. As usual, the facts and circumstances vary from case to case, and thus the degree of vulnerability of the practitioner varies as well.
Therapists and counselors should be clear with members of the group concerning their role or relationship with the group and with each of the individuals in the group. It might be helpful to remind participants (if the practitioner so believes) that if they need to communicate with an individual therapist or counselor on a confidential basis, a referral can be made. Otherwise, members of the group should not expect confidentiality if there are merely casual or informal communications between the practitioner and one or more of the group participants outside the scheduled group session. Additionally, the practitioner must be careful not to promise confidentiality to one or more of the participants if it would interfere with the practitioner’s primary duty to the group. This kind of discussion would best be had – and best be put in writing in the form of a disclosure statement (or some kind of “no secrets” policy) – prior to the commencement of group treatment.
ABOUT THE AUTHOR
"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.