Avoiding Liability Bulletin – October 2007
… It is not unusual for therapists to talk with colleagues about the work they are doing with certain patients or clients, either informally or as a presenter at a workshop. The question sometimes arises as to whether or not the therapist or counselor needs to obtain the authorization of the patient or client before they share any information with others. It is generally well established that written authorization is not required and that the patient or client need not first be informed that information about his/her treatment is being shared with others. Generally, therapists and counselors simply mask the identity of the patient or client by changing details that have no direct impact on the integrity of the clinical information presented. They of course change the name of the patient/client. Ethical standards generally (verify this with your profession’s ethical standards) recognize this practice and do not require that authorization or consent first be obtained.
A more difficult situation is encountered if the therapist or counselor desires to write a book – for commercial gain – and wants to include particulars about a case (e.g., information about a patient or family members) that he or she has handled. This idea usually unfolds after the termination of therapy, and sometimes, after the death of the patient. In such situations, the practitioner’s concern is usually to do adequate masking of the identity of the patient(s) and to change some of the less important details of the case so as to protect patient privacy as much as possible. There is, however, or there should be, an additional concern.
Since the patient and perhaps the patient’s family know the identity of the therapist or counselor who is the author, they are more likely to have an easier time than the general public would in recognizing that the book is about them. The therapist or counselor who has not first obtained a written authorization or consent from the patient (or the patient’s representative) before venturing forward with this commercial venture may hear from the patient, or an attorney representing the patient. The claim may be that the therapist has usurped confidential information from the patient and used it for commercial gain (exploitation will likely be alleged, among other things) without the knowledge or consent of the patient.
The patient may also seek damages for breach of confidentiality and may seek a portion of the revenue derived from sales. Thus, if the therapist or counselor desires to minimize risk, it would be advisable to obtain the patient’s consent or authorization to proceed with the story – even where the identity of the patient or client is going to be masked. The manner in which this is done (and in some cases, whether or not it needs to be done), and the form and content of the authorization or consent, are matters usually requiring consultation with an attorney and perhaps others (e.g., publishers).
ABOUT THE AUTHOR
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.
