Avoiding Liability Bulletin – February 2007
… Suppose a therapist is treating a fifteen-year old girl who tells the therapist that she is pregnant and is thinking about obtaining an abortion. Is the therapist required to keep this information confidential? Must a report of child abuse be made? What is the liability of the therapist if the parents are not informed of this information by the therapist and the abortion takes place, perhaps causing the girl to become seriously depressed? The answers will necessarily depend upon the applicable laws in the particular state involved – and may vary from state to state. It is critical, however, that practitioners know or obtain the answers to these and other questions.
In one state, for example, the answers are reasonably clear. That state’s law makes clear that the pregnancy of a minor, in and of itself, does not constitute a basis for a reasonable suspicion of child abuse. Of course, if the girl were to reveal that she was pregnant as the result of being forcibly raped by her teacher, a child abuse report would be required. The pregnancy could be the result, for example, of consensual sexual intercourse between the girl and her seventeen-year old boyfriend (not reportable as child abuse in this particular state). The therapist in this particular state would be required to keep this information confidential and would be able to successfully resist an effort by the parents to find out information by inspecting, or obtaining a copy of, the child’s treatment records. The therapist might encourage the minor to reveal this information to the parents herself, but would generally respect the girl’s desire to keep this information from her parents.
As to the therapist’s liability, it should be minimal – assuming competent treatment was rendered and that it is documented in the records. Decisions of this kind are major, and they can have long-lasting consequences for minors. The fact that the girl suffered serious depression as the result of the abortion should not ordinarily be enough to establish, in and of itself, negligence on the part of the therapist. It should be noted that involvement of the parents in these kinds of situations may not always be appropriate – and can sometimes cause more problems for the minor than when the information is kept confidential. Each case is different, and the therapist is expected to use his or her best professional judgment and to render lawful and competent care.
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.