Avoiding Liability Bulletin – June 2012
… The issue of parental access to the mental health records of a child can be a thorny one, depending upon a variety of factors, not the least of which is the manner and extent to which state law addresses the subject. When must or may the practitioner allow the parent to inspect the minor patient’s records? When must or may the practitioner deny access to the parent? What rights, if any, does the minor child (the patient/client) have with respect to parents accessing the records? What if a parent lacks physical custody of a child – may that parent be denied access to the mental health records of the child? How, and to what extent, does the law in your state treat this subject matter? In California, for example, the psychotherapist is quite well protected, as are the minor patient’s privacy rights.
First, the law in California requires a therapist to deny parental access to a minor patient’s records if the minor could have lawfully consented to the mental health services being provided. Because the law in California was recently liberalized, psychotherapists can treat a minor without parental consent if the minor is twelve or older, provided that the therapist determines that the minor is mature enough to participate intelligently in the mental health treatment or counseling services – generally an easy standard to meet. The law presumes that at some point the parent will be involved, but allows the practitioner to determine, after consulting with the minor, that involvement of the parent is not appropriate. Thus, as a practical matter, for most minors who are twelve and over, access to the records by a parent would be denied if the minor were lawfully entitled to be treated without parental consent.
Additionally, and regardless of the age of the minor, California law provides that the parent shall not be entitled to access (inspect or copy) the child’s records if the therapist determines that access to the minor patient’s records would have a detrimental effect on the provider’s professional relationship with the minor patient or the minor’s physical safety or psychological well-being. These are rather broad grounds upon which a therapist would lawfully deny parental access. Moreover, the law provides that the decision of the health care provider as to whether or not a minor’s records are available for inspection or copying by a parent shall not attach any liability to the provider, unless the decision is found to be in bad faith. This latter provision essentially provides the practitioner with immunity from liability for most denials of access. Allowing parental access to a summary of the records, as opposed to the complete record, may be an option for the therapist in some states.
With respect to custody issues that may affect whether or not a parent has access to a minor’s mental health records, this can be a tricky/complex area of the law. There are some in California who take the position that access to a minor’s treatment records cannot be denied to a parent even though that parent is not the child’s legal or physical custodian. Others believe that if a parent does not have legal custody of a child (or at least joint legal custody), that parent cannot access the treatment records of the minor child. In California, it is often safer for the therapist to deny access to the parent on the grounds that are described in the paragraph immediately above, rather than on the basis of the custody situation. These grounds (in the paragraph above) provide a broad basis upon which a denial may be based, and also provide a form of immunity when the practitioner acts in good faith. Of course, each state may treat the subject of parental access to a minor child’s records differently. What is the law in your state?
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.