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Use of a "No Secrets" Policy in Couple and Family Therapy -
An Interview with Richard S. Leslie, J.D. Attorney at Law

Interviewer: Mary J. Former Riemersma, Executive Director

The Therapist
(September/October 2007)

Mary:  Richard, for about twenty years, you and I have talked about the use of a "no secrets policy" by therapists who treat multiple members of a family. These discussions occurred because of problems members were having in family therapy or couple therapy situations around the issues of confidentiality, conflicts, and termination. I noticed that you have prepared a "no secrets policy" and I attended one of your workshops a while back where you discussed the use of such a policy. What influenced you to create this policy after so many years?

Richard: This has long been an issue that has interested me. Therapists have often talked with me about this issue from a clinical perspective. It seemed to me, and I believe your experience was similar, that most therapists who treated couples, for example, operated on the basis of a "no secrets" policy although they often had nothing in writing that explained how the policy operated and why such a policy was necessary. They realized that if they allowed one of the members of the couple to expect that the therapist would keep a secret from the other member of the couple, that this might eventually put them in a bind. Unfortunately, some therapists did not think about this in advance or realized it was a problem when it was too late. As a result, you and I were called to help these therapists extricate themselves from awkward positions. I finally decided to write something about this issue because I had read an article in AAMFT's Family Therapy Magazine (January/February 2002) about AAMFT's Code of Ethics. The article focused on confidentiality, and it contained a vignette about an MFT who was seeing a family for therapy. Without going into great detail, the therapist in the vignette was seemingly forced to defer (and possibly terminate) further services to the family because the therapist was told by a spouse that he or she was having an affair and was not sure about wanting to continue the marriage. This revelation was communicated in a phone call from the spouse to the therapist, who also told the therapist that nothing was to be mentioned about this in sessions with the family. Because there apparently was no policy regarding the issue of secrets, this spouse was able to derail the family therapy. I thereafter presented at an AAMFT ·sponsored workshop in 2003 in Palm Springs on the issue of confidentiality and treating multiple members of a family. I decided, in preparing for that workshop, that I would finally develop a policy that would express the basic concepts and underpinnings of the "no secrets" concept. Sorry for the long-winded answer!

Mary: No problem. CAMFT's Code of Ethics says that MFTs have unique confidentiality responsibilities because the "patient" in a therapeutic relationship may be more than one person. AAMFT's Code of Ethics also recognizes that reality. Is the "no secrets"  policy related to that concept?

Richard:  Yes, in a certain way. Other sections of both organization·s ethical standards impact more directly on the "no secrets" concept, but the important point of the standard you ask about is the recognition that the patient may be a couple, a family, or a unit of the family (e.g., two siblings or two siblings and a parent). Generally, a therapist would not release confidential information to a third party without the signed authorization of all of those who comprise the particular unit being treated. However, when we are talking about treating a couple, for example, where the couple is the identified patient, if a therapist were to release information learned from one member of the couple to the other member of the couple, this should not in my view be seen as a breach of confidentiality, since the therapist is not releasing information to a third party, but rather, the therapist is releasing the information to the patient · that is, the couple, and is presumably doing so in order to effectively treat the couple. However, in order to make such disclosures properly, and in order to not run afoul of confidentiality ethical standards, therapists need to inform patients, before therapy starts, of the limits to confidentiality. It is in this disclosure that a "no secrets" policy would be detailed and explained.

Mary:  Would the "no secrets" disclosure be made together with the other disclosures that are typically made regarding the limits or exceptions to confidentiality — like child abuse reporting requirements, elder and dependent adult abuse reporting requirements, and the patient who is a danger to self or to others?

Richard:  No. I recommend that the "no secrets" policy be a separate document — separate from the disclosures that the therapist typically makes in a disclosure statement or form regarding his or her fee, theoretical orientation, and the general exceptions to confidentiality that you mention.

Mary:  Should a ·no secrets· policy be used by anyone who sees couples, families, or units within a family?

Richard:  Well, that really depends upon the treatment philosophy of the individual practitioner. I have a friend who is a licensed psychologist who does not believe in the "no secrets" concept. He points out that if you are seeing a family, and it becomes necessary to see an adolescent daughter individually for a few sessions, unless you are able to promise her confidentiality, she will be unlikely to share information with you that may be critical to an appropriate treatment intervention. He believes that if she were asked to sign a "no secrets" policy at the outset of treatment allowing the therapist to share information with the family that she might divulge in an individual session, that she would be reluctant to "open up" and perhaps share that she is pregnant, or seeing a thirty year old boyfriend, or using an illegal substance.

Mary: And your response to that?

Richard: Well, I have several things to say about that. First, if a "no secrets" policy doesn·t fit for you, don't use it. But be prepared, in a variety of circumstances, to deal with a possible conflict that may arise. Be prepared to evaluate whether or not you may have to terminate treatment of the family unit because of the information shared with you in confidence by the adolescent daughter or by a spouse/parent. For how long will you be willing to keep the secret? Additionally, I believe that if the "no secrets" policy is explained carefully and thoroughly at the outset of treatment, it will not prevent a lot of disclosures from being made in an individual session. It will, however, test the prospective members of the unit being treated as to whether or not they really want couple or family therapy. Finally, if an individual really wants nothing to be disclosed to any members of the treatment unit under any circumstances, then he/she can be referred to a therapist for personal psychotherapy - and still remain as a part of the unit being treated.

Mary: As you know, Richard, when therapists treat a family unit or a couple, they often will see the participants separately in individual sessions for a short period of time and will then see the couple again or the family unit. Shouldn’t these individual sessions be viewed as part of the couple or family therapy? Shouldn’t they know who the patient is?

Richard: Yes, and in fact, these very important points are mentioned in the policy I prepared. Participants should know that these individual sessions are a part of the couple or family therapy. The patient remains the couple or the family, as the case may be. The person who is seen individually is not in a separate and individual therapist-patient relationship, but is simply part of the couple-therapist or family unit-therapist relationship. The therapist is working in the best interests of the patient — that is, the couple or the family unit.

Mary: What do you see as the benefit of such a policy?

Richard: I think the primary benefits are twofold. One of the benefits is that the participants in therapy are clearly told (this is done when discussing the policy with the participants) that the identified patient is the couple or the family unit. In the course of explaining the policy, it will hopefully become clear that the records of the treatment do not belong to any one of the participants, but rather, to the unit. Thus, suppose that a therapist is treating a couple, that the therapy later ends, and the parties are involved in a dissolution or custody dispute. Suppose that one spouse demands a copy of the records, or the attorney for that spouse issues a subpoena for the records. Or, suppose the attorney demands that only the individual sessions held with the one spouse be released. The therapist is in a better position to resist such efforts and to insist upon the authorization (or waiver of the privilege) of the couple — that is, both spouses.

Mary: Before you get to the second benefit, do the courts recognize that the patient may be the couple? Do they recognize that the holder of the privilege (psychotherapist-patient privilege) may be both spouses and that one spouse cannot waive the privilege for the other spouse?

Richard: I would say that the answer is generally “yes.” I believe your experience indicates that the answer is “yes” as well. You and I for many years have advised therapists in such situations to assert privilege on behalf of the patient (e.g., the couple) and we have not been contacted thereafter and been told that the court did not uphold the claim of privilege for the couple. While lawyers can argue anything, and while judges sometimes make incorrect rulings, if the attorney representing the spouse who is asserting the privilege on behalf of the couple is aware of the ethical standards of both CAMFT and AAMFT (regarding the fact that MFTs have unique confidentiality concerns because the patient may be more than one person), this knowledge should be helpful. In addition, if the parties have signed an acknowledgement (e.g., a “no secrets” policy) that includes information as to who is considered to be the patient, the ethical standards together with the policy should in most instances be persuasive.

Mary: What about the second benefit of a “no secrets” policy?

Richard: The second benefit — actually, the primary benefit and the real reason for considering use of such a policy is to let the participants know that the primary obligation of the therapist is to appropriately, and hopefully effectively, treat the couple or the family unit. In order to do so, the therapist will do his/her best not to allow himself/herself to be placed in a situation that will allow a conflict to arise between an individual participant and the unit being treated — that is, the patient. If such a conflict were to arise, it is reasonably likely, as in the example referred to above (the article in Family Therapy Magazine), that couple therapy or family therapy would have to be terminated or “deferred.” This result may not be in the best interests of the couple or the family. It would also allow one participant to sabotage the couple or family therapy. By letting the participants know that you will not keep secrets — that your allegiance is to the couple or the family unit — and that you will make such disclosures as are necessary for treatment to be effective, the likelihood of sabotage or an early termination is lessened. In my view, a third but related benefit — I think I mentioned this earlier — is the fact that the policy, and a discussion of the policy, and the fact that all will sign the policy and acknowledge its contents, will help everyone involved determine if couple therapy or family work is really desired.

Mary: Will the policy result in less communication in the individual sessions that are held because the individual knows that the therapist may break confidentiality?

Richard: That is the fear of my psychologist friend. By the way, he was first licensed as an MFT (at that time, an MFCC!) and is a firm believer in marital and family therapy. This fear of his and of others may be overblown. The therapist who uses such a policy should be very clear with participants, as the policy indicates, that confidentiality will be respected. The therapist is not planning to reveal all as soon as possible. To the contrary, the therapist will usually work with the individual to get him or her to make the revelation of the information in his or her own time, if revelation is even necessary. Not all revelations made in an individual session will be necessary for the therapist or the individual to share with the treatment unit. But the bottom line is that the therapist reserves the right to use his or her best clinical judgment as to what is necessary to share with the patient so that treatment can be effective. Remember, the information will be shared not with a third party — but with the identified patient. What better place to bring the information — if and when necessary! I must again mention that the family therapist can refer an individual to another therapist for individual psychotherapy, which may be an option that is preferable to providing individual therapy and family therapy to multiple members of the family unit.

Mary: This policy that you have created has been out in the public arena for a number of years. Have you had any feedback?

Richard: Yes. When the policy first became public, I received a few calls from educators from other states who taught in or directed MFT programs. They expressed considerable enthusiasm and appreciation for the written policy. They indicated that the policy expressed their philosophy quite accurately and that they would put it to good use. They expressed some consternation over the fact that nothing similar had been put forth before. Their MFT programs are heavily involved in the treatment of families and couples — as opposed to individual psychotherapy.

Mary: Thanks Richard, this has been informative and interesting. Is there anything you would like to add?

Richard: Actually, yes. I would hope that CAMFT members would take a close look at this policy and give you their feedback as to whether the policy is consistent with their treatment approach. I would certainly be interested, as I trust you would be, in receiving any comments, reactions and suggestions. I trust that this interview and the policy make it clear that this policy is intended for those who do couple work or family work — where the patient is seen as the couple or the family. I have been asked whether or not this policy is applicable to group therapy, and my short answer is that it is not. Perhaps we can talk about that at some other time. Thanks for your interest. It’s been a pleasure.

Mary: Thank you, Richard. This has been informative. It is an interesting and important topic that has not previously received enough attention.

Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-seven years. Currently, Richard is Of Counsel to CAMFT on legislative, regulatory, and legal matters. Richard is credited with putting MFTs on the map in California. He crafted legislation that led to third party insurance reimbursement for MFTs; and he is recognized for writing and orchestrating many other legislative endeavors that have brought recognition and parity to the profession. He was previously a consultant to the American Association for Marriage and Family Therapy (AAMFT). Prior to his work with AAMFT, Richard was Legal Counsel to CAMFT for approximately twenty-two years. He was director of Government Relations, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the Board of Behavioral Sciences and was a tireles advocate for due process and fairness for licensees and applicants. He was (and is now) a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter.

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