Avoiding Liability Bulletin – August 2011
… Confidentiality is the cornerstone of counseling and psychotherapy. Privilege is a concept related to confidentiality, but privilege is different from confidentiality. I have previously written about that – but to repeat, privilege involves the right to withhold testimony in a legal proceeding, while confidentiality involves the duty of a therapist to not share patient information with third parties without the written authorization of the patient. Generally, in order for a communication to be privileged, it must be confidential. There are, of course, multiple exceptions under state laws to the duty of confidentiality. Confidentiality may be broken in specified circumstances and must be broken, at least to some extent, in other circumstances.
Clearly, the communications between patient and practitioner during the course of the professional relationship are confidential. Whether the fact of the relationship is confidential may depend upon the circumstances, unless a state law specifically addresses the subject. For example, you would treat the fact of the relationship as confidential when someone comes into your office and asks whether you are treating a particular patient. The answer I have often recommended, somewhat tongue in cheek, is “I don’t say who my patients are, and I don’t say whether a named person is not a patient. Most respectfully, it is none of your business.” This could properly be said to a process server looking for a patient, a private investigator, or a police officer. On the other hand, the fact of the relationship is typically not confidential (or privileged) when the practitioner sues the patient for monies owed.
A patient could easily be seen and recognized going into or coming out of a practitioner’s office. While careful scheduling may take care of some of these problems, especially in some sensitive practices, most therapists and counselors do not have an office with an entry door and a separate exit door. What would that do to the stigma surrounding mental health problems or treatment? There is typically no stigma attached to entering a doctor’s office, so why should there be a stigma attached to entering a counselor or therapist’s office? While the fact of the relationship may be known to others, the reasons for the professional relationship, the content of the treatment, and the communications between patient and practitioner are and should remain confidential.
On a related and hopefully humorous note, I remember being shouted at by the receptionist in my doctor’s crowded waiting room (he was behind schedule, as usual) – “What are you here for Mr. Leslie?” I was reluctant to publicly share the fact that my ________’s were acting up! Not only was my identity revealed, but my embarrassment must have been obvious as I sheepishly approached the receptionist to whisper my ailment.
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.