“No Secrets” Policy (Couple Being Treated)

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Avoiding Liability Bulletin – April 2006

… When therapists and counselors view the couple as the client, a question arises about the confidentiality obligations of the practitioner as between the two participants. For example, suppose that the therapist or counselor sees the couple for several sessions conjointly and then decides to see them individually for a few sessions before bringing them back together. Are the communications between the therapist or counselor and the individual to be kept confidential as it relates to the other participant in the couple therapy? Or, may the therapist or counselor share such information with the other participant as he or she deems necessary and appropriate for the effective treatment of the couple – the identified patient? Prospective participants in couple therapy should be informed about the practitioners approach to this important aspect of confidentiality.

In my view, a couple should be informed (unless state law or other authority differs with the following) that the practitioner views the identified patient as the couple and that during the course of working with the couple it may be necessary to see each of them in one or more “one on one” sessions. Such sessions are to be viewed by the couple as a part of the couple therapy unless otherwise indicated by the therapist. While the “one on one” sessions are confidential in the sense that the therapist will not release the information to a third party, the therapist may need to share information learned in an individual session with the other participant in couple therapy. If the therapist is not free to exercise his or her clinical judgment regarding the need to share this information with the identified patient – the couple – the therapist might be prevented from effectively serving the needs of the couple.

The therapist can inform the couple that he or she will use his/her best judgment as to whether, when, and to what extent he or she will make disclosures to the other person. The therapist can also let the couple know that, if appropriate, he or she will give the individual the opportunity to make the disclosure. It is important to point out that disclosures by the practitioner will be made, if they are made at all, for treatment (of the couple) purposes. In essence, the disclosures, if made, should be seen as a necessary part of the couple therapy. If one of the participants wants complete confidentiality as to his or her communications, that participant can of course see another therapist or counselor for individual treatment. The therapist can let the couple know that should one of them need individual treatment, a referral can be made.

If this kind of understanding is not made abundantly clear at the outset, the individuals participating in one on one sessions may share “secrets” and thereby create a conflict for the therapist or counselor, possibly requiring an early termination. This would not be in the best interests of the identified patient – the couple. Failure to clearly articulate such a policy will often allow one of the participants to sabotage the couple work. Such a policy should be in writing and should be signed by the patient (the couple) prior to the commencement of treatment and after it is discussed and understood by the couple. Remember, to the extent that state law or regulation may differ with the above, or to the extent that a therapist or counselor’s views or methods of practice may differ with the above, adjustments to the policy can be made.


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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