Anastasia Johnson, JD
former Staff Attorney
The Therapist
September/October 2016

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Introduction
Suppose that a therapist, while acting as a retained expert consultant for a criminal defense attorney, learns about possible child abuse or neglect, or that the individual defendant in the case intends to harm someone. What should the therapist do?

Recently the California Court of Appeals provided a narrow exception to the legal and ethical duties in these circumstances. In Elijah W. v. Superior Court¹, the court held that when a psychotherapist is hired as an expert consultant for a criminal defense attorney, to assist the attorney in his or her defense of an individual, the attorney-client privilege outweighs a therapist’s duty to report suspected child abuse under the Child Abuse and Neglect Reporting Act (CANRA) or Tarasoff situations. This article will provide a brief overview of the duty of confidentiality for both the legal and mental health professions, review the exception carved out by CANRA and Tarasoff and discuss the Elijah W. case, in which the court concludes that in specific situations the therapist must—promise not to tell.

Confidentiality and Privilege
For the MFT Profession The practice of law and the mental health profession have one major similarity— confidentiality is the cornerstone of both professions. Over time, confidentiality has developed from an ethical consideration into a legal concept as well. For therapists in California, the BBS relies heavily on CAMFT’s Code of Ethics as the ethical guidelines of the profession. In fact, the CAMFT Code of Ethics states, “The overriding principle is that marriage and family therapists respect the confidences of their patient(s).”² The ethics code also explains the few exceptions that exist to this overriding principle.

2.1 DISCLOSURE OF CONFIDENTIAL INFORMATION: Marriage and family therapists do not disclose patient confidences, including the names or identities of their patients, to anyone except a) as mandated by law b) as permitted by law c) when the marriage and family therapist is a defendant in a civil, criminal, or disciplinary action arising from therapy (in which case patient confidences may only be disclosed in the course of that action), or d) if there is authorization previously obtained in writing, and then such information may only be revealed in accordance with the terms of the authorization.³

Generally, therapists are prohibited from disclosing confidential communications to any third party, unless mandated or permitted by law to do so, as described above. The legal components of confidentiality, as well as most of the legal exceptions to it can be found in the California statutes, various sections of the California codes and case law, all of which have given confidentiality its legal status.⁴

Not to be confused with the concept of confidentiality is the psychotherapist-patient privilege, which is a question of evidence law. The psychotherapist-patient privilege affords the holder of the privilege (usually the patient) the right to withhold testimony (the therapist’s testimony) in a court of law.⁵ The psychotherapist-patient privilege arises from the special relationship therapists have with their patients. It is an exception to the general rule that requires testimony from witnesses who are subpoenaed to provide such testimony.⁶ The interplay between the two concepts is essential to understand. Confidentiality originated as an ethical standard and as it stands now is a professional and legal duty to refrain from speaking about certain matters. Privilege is the relief from the duty to speak in court proceedings about communications that were originally communicated to the therapist in confidence.

For the Legal Profession The value that is placed on confidentiality in the legal profession is also significant. The requirement that lawyers keep client information confidential derives from the belief that in order to have an effective attorney-client relationship, a client must feel comfortable that the lawyer will keep the clients information in confidence.⁷ Thus, an essential component of the attorney-client relationship is the duty of confidentiality, meaning that the lawyer must not reveal any information relating to the representation of the client. A violation of this principle may lead to disciplinary actions against the attorney. The concept of confidentiality for the legal profession is similar to the idea of confidentiality in the mental health profession, as it encompasses many of the same principles and theories.

For attorneys in California the California Rules of Professional Conduct state the attorney’s duty of confidentiality. The California Business and Profession Code also requires attorneys to, “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”⁸ Also encompassed in the attorney-client relationship is the attorney-client privilege. This is sometimes referred to as the testimonial privilege, and is a concept from the law of evidence. It affords the holder of the privilege, the client, acting through the attorney, the ability to claim the privilege and refrain from testifying in court.

Exceptions to the attorney’s duty of confidentiality vary by state. However, in California public policy has created a narrow exception to this duty. An attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent the lawyer reasonably believes the disclosure is necessary to prevent a criminal act likely to result in death or substantial bodily harm.⁹

Therefore, the guarantee of confidentiality and privilege for both professions is in the best interest of an ordered, healthful and lawful society.¹⁰

Mandated Reporting
As important as it is to keep patient information confidential there are exceptions to this rule, such as mandated reporting of suspected child abuse. For nearly 50 years, California has used mandatory reporting obligations to identify and protect child abuse victims.¹¹ The first child abuse reporting law in California was enacted in 1963 and at that time did not included psychotherapists as mandated reporters; only physicians, surgeons and dentists were required to report instances of known or suspected child abuse to law enforcement officials.¹² As knowledge and understanding of child abuse increased over time, it became evident that more professionals might also be in a position to identify maltreatment.¹³

Today, all doctors, psychiatrists, psychologists, marriage and family therapists and other mental health professionals are included in the nearly four dozen separate categories of mandated reporters identified in CANRA. Most importantly, CANRA also has an exception for the information that is reported regarding suspected child abuse or neglect from the psychotherapist-patient privilege. Additionally, CANRA seeks to ensure reporting guidelines are adhered to because a mandated reporter who fails to make a suspected child abuse report may be found guilty of a misdemeanor or required to pay a fine of one thousand dollars, or both.¹⁴ The BBS may also take action against psychotherapists for failing to make a suspected child abuse report.

There is a notable absence of attorneys as mandated reporters in California and most other states. This is principally based upon attorney-client privilege and the ethical bar that prevents attorneys from disclosing a client’s confidences and secrets, as discussed earlier.¹⁵ Although mandated reporting statutes are superficially similar across most states, they vary considerably in the details of who must report, the circumstances under which they must report, and the procedure by which they must do so.¹⁶ In fact, in only three states are attorneys specifically mentioned in child abuse reporting statutes and thus required to report child abuse when learned within the scope of the attorney’s representation of the client.¹⁷

Thus, arguably the potential for legal and ethical dilemmas exist in every jurisdiction of the US except a few states.¹⁸

Tarasoff Duties
In line with the duty to report child abuse or neglect is the Tarasoff duty to protect and use reasonable care. In 1976, the California Supreme Court ruled that psychotherapists have a duty to protect potential victims if their patient has communicated a serious threat of physical harm against a readily identifiable victim.¹⁹ In the nearly 40 years that the court and the California legislature have been working with the case and subsequent law, it has gone through many adaptations. In the ruling on the case of Tarasoff v. Regents of the University of California, the court determined that the need for therapists to protect the public was more important than protecting client-therapist confidentiality.²⁰ Famously the court wrote that, “Protecting the privilege [to not disclose confidences] ends where public peril begins.”²¹ Despite the controversy over the circumstances for breaching confidentiality, a Tarasoff situation remains one of the exceptions to confidentiality.

Therefore, the duty of confidentiality is abridged a little more with Tarasoff, presenting more legal and ethical issues for therapists that are working as expert consultants for criminal defense attorneys.

The Conflict
In having looked at the duty of confidentiality and privilege for both professions and then seeing the exception for mandated reporting under CANRA and the duty to protect under Tarasoff, it is easy to see how differing professional duties would present a challenge. In simple terms, therapists have several notable exceptions carved out of their duty to keep patient information confidential while attorneys have a very narrow exception carved out, allowing attorneys to refrain from sharing their client’s information that was communicated in confidence.²² However, when a psychotherapist is hired by a defense attorney as an expert consultant, and learns information from the individual or the case that would be reportable for a California-licensed therapist under CANRA or Tarasoff, would the therapist comply with his/her legal obligations, or would the confidentiality laws that protect the attorney-client relationship control? Therein lies the conflict.

Furthermore, in all jurisdictions, an attorney cannot ethically or lawfully advise a psychotherapist to withhold a suspected child abuse or Tarasoff report.²³ Meaning that an attorney cannot advise the psychotherapist, who is acting as an expert consultant, whether to report or not report information that may have been learned from the individual.

For that reason the difference between the ethical and legal duties of the two professions may create a serious dilemma with significant consequences for the attorney and therapist. However, a welcome ruling from the California Appellate Court resolves the legal and ethical tension that had been the norm until the Elijah W. case.

The Elijah W. Case
The case involved Elijah W., a 10-year-old Los Angeles boy arrested on an arson charge. As part of Elijah’s initial defense evaluation, his attorney sought to have a psychologist appointed to evaluate Elijah’s maturity. Elijah’s attorney was concerned about the boy’s competency to stand trial because Elijah was very young, quiet and withdrawn.

The procedure in Los Angeles Superior Court, when juvenile competency is at issue, is to have the court appoint a psychotherapist from the Juvenile Competency Pilot Program (the “JCST” panel). However, after Elijah’s attorney contacted several members from the panel, the psychotherapists indicated that they would make all the disclosures as required by CANRA and Tarasoff, regardless of attorney-client privilege. This meant that if Elijah reported any instances of suspected child abuse or a reportable situation under Tarasoff, the therapists would circumvent the attorney and make the required mandated reports.

Elijah’s attorney told the court that this would violate his client’s right to effective assistance of counsel. The reasoning behind the argument is that the constitutional right to effective assistance of counsel includes the right to experts to assist in the defense.²⁴ He argued that the attorney should be able to choose the therapist based on what they would report and to whom. Elijah’s attorney told the court that he was able to find a psychotherapist named Dr. Catherine Scarf, who made it clear that she would not make any reports to the authorities pursuant to CANRA and/or Tarasoff. She would instead report any information she learned to Elijah’s attorney as she felt this would satisfy her duty as a mandated reporter.

But the lower court disagreed with Dr. Scarf and Elijah’s attorney. The court made it clear that the evaluating psychotherapist had to come from the JCST panel, and as such must report any reasonable suspicion of child abuse or Tarasoff situations to the proper authorities. Elijah’s attorney then decided to ask the appellate court to intervene in the lower court decision not to appoint Dr. Scarf.

The appellate court ultimately agreed with Elijah’s attorney. The appellate court concluded that retained expert consultants work under the attorney-client privilege and are not required to comply with mandated reporting laws and Tarasoff duties. The court noted that child abuse reporting requirements might interfere with full and open communications between the individual and his defense team.²⁵ The justices also wrote favorably about Dr. Scarf’s position that notifying the defense attorney would discharge the reporting duty.²⁶ The court stated, “…reporting information [to the authorities] obtained from the client while assisting defense counsel plainly violates the lawyer-client privilege as now defined…”²⁷ In regards to Tarasoff duties, the court noted that psychotherapists are obligated to use reasonable care.²⁸ In support of that obligation Dr. Scarf asserted that notifying the defense attorney would constitute due care, satisfying any obligation the psychotherapist may have to an identifiable potential victim of a Tarasoff threat.²⁹ That’s because of the narrow exception that allows attorneys to disclose necessary information to prevent a criminal act likely to result in death or substantial bodily harm. The court stated that notifying the defense attorney may indeed be sufficient, however, and as in most cases, it will depend on the circumstances of an individual case.³⁰
The appellate court concluded by saying, “Elijah was entitled to the assistance of an expert who would respect the lawyer-client privilege and defense counsel’s duty to confidentiality and would not report client information concerning child abuse/neglect or so-called Tarasoff threat to authorities.31 And so the court ordered that Dr. Scarf be appointed to perform the evaluation of Elijah W.

It is important to note exactly what this means: the court ruled that the attorney-client privilege prevails over conflicting duties imposed on psychotherapists, when retained as experts for defense attorneys. The court made it clear that reporting suspected child abuse to the defense attorney will satisfy the psychotherapist’s reporting duties. Tarasoff situations can also be reported to the retaining attorney and this may also satisfy the psychotherapist duty to exercise due care.

Why this case matters
This decision matters for many reasons. First, it resolves a legal and ethical conflict that in the past had presented itself to many therapists working as retained experts for criminal defense attorneys. Second, it also resolves the tension and uncertainty that many lawyers found themselves in when working with therapists who are acting as defense expert consultants. But mostly, it resolves the issues for the most vulnerable people in the equation, the individual being evaluated by the retained expert consultant. While this may seem unimportant, the individual’s case is at stake. When faced with this issue now, therapists retained as defense expert consultants can assure these individuals that they will consult with the individual’s attorney before making any mandated reports. This affords the individual the best possible and most cohesive effort for their defense. It lets the individual truly have the confidence to speak candidly about their situation, the good and the bad. While there are many benefits to mandated reporting, one of the drawbacks was certainly this grey area. The ruling also puts California in the lead among U.S states in clarifying the duties of the psychotherapists trying to navigate the various reporting laws. As a result, therapists in California retained by attorneys will want to pay special attention to the nature of their case, including their role.

Arguably, this decision may also apply in civil cases, not just criminal cases, when the attorney has hired a psychotherapist to perform an evaluation of their client because the attorney-client privilege is recognized whenever attorneys are representing clients. Since most LMFT’s will be retained to provide consultations on civil cases, understanding the ambiguity of the Elijah W. case in this regard is important. If an LMFT has been retained by an attorney as an expert consultant in a civil case, or retained by an attorney to provide services to an individual, there is an argument to be made that the LMFT is encompassed in the attorney-client privilege, as discussed above. This will have an effect on the LMFT’s reporting obligations. Therefore, if found in this situation, it would be prudent for the retained LMFT consultant to discuss with the retaining attorney the correct procedure for reporting.

Conclusion
The tension in the law described above, which affects attorneys and psychotherapists working within the legal confines of their respective roles, has been resolved with the Elijah W. case.³² It is important to keep in mind that this decision, as it stands, only affects a small percentage of practicing therapists, the ones hired as expert consultants for criminal defense attorneys, and arguably, in civil cases. For the others its business as usual.

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Endnotes

¹ Elijah W. Superior Court, 216 Cal.App.4th 140 (2013)
²CAMFT Code of Ethics, Part I, Section 2.1
³Id.
⁴ Benitez Bonnie, Confidentiality and its Exceptions (Including the US Patriot Act), The Therapist, July/August 2004
⁵ Id.
⁶ Id.
⁷ Hazard, Geoffrey C. Jr., “An Historical Perspective on the Lawyer-Client Privilege” (1978). Faculty Scholarship Series. Paper 2406.
⁸ California Business and Professions Code section 6068(e)(2)
⁹ Rules of Prof. conduct, rule 3-100(A)
¹⁰ Dixon Wheeler, Joe, Dixon Embleton Kim. Attorney-Client Privilege versus Mandated Reporting by Psychologists: Dilemma, Conflict, and Solution. Dept. Of Psychiatry and Behavior Sciences Duke University Medical Center
¹¹ Elijah W. Superior Court, 216 Cal.App.4th 140 (2013) p.153
¹² Id.
¹³ Rady Children’s Hospital San Diego. The California Child Abuse and Neglect Reporting Law Revised by Lisa McCulloch, LCSW
¹⁴ Cal. Penal Code 11166(c)
¹⁵ Mosteller, R.P. Child Abuse Reporting Laws and Attorney-Client Confidences: The Reality and the Specter of Lawyer as Informant. Duke Law Journal, 203-208. (1992)
¹⁶ Administration for Children and Families. U.S Department of Health and Human Services: Mandatory Reporting of Child Abuse and Neglect. and American Bar Association: Commission on Domestic Violence. Mandatory Reporting of Child Abuse. June 2009.
¹⁷ Id. (Nevada, Mississippi, Ohio) and Dixon Wheeler, Joe, Dixon Embleton Kim. Attorney-Client Privilege versus Mandated Reporting by Psychologists: Dilemma, Conflict, and Solution. Dept. Of Psychiatry and Behavior Sciences Duke University Medical Center
¹⁸ Id.
¹⁹Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976)
²⁰ Id.
²¹ Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976),
²² Rules of Prof. conduct, rule 3-100(A) As a narrow exception to this duty, a lawyer may, but is not required to, reveal confidential information relating to the representation of a client to the extent the lawyer reasonably believes the disclosure is necessary to prevent a criminal act likely to result in death or substantial bodily harm.
²³ Dixon Wheeler, Joe, Dixon Embleton Kim. Attorney-Client Privilege versus Mandated Reporting by Psychologists: Dilemma, Conflict, and Solution. Dept. Of Psychiatry and Behavior Sciences Duke University Medical Center
²⁴ Long and Levitt LLP. In Re Elijah W. 2013 WL 663281. Feb 2013
²⁵ Franklin, Karen. Attorney-Client Privilege Trumps Child Abuse Reporting Law, Court Rules. In the News, Forensic Psychology, Criminology and Psychology –Law. May 2013
²⁶ Id.
²⁷ Elijah W. Superior Court, 216 Cal.App.4th 140 (2013) p.158
²⁸ Id. p.158
²⁹ Id. p.158
³⁰ Id. p.159
³¹ Id. p. 159
³² Dixon Wheeler, Joe, Dixon Embleton Kim. Attorney-Client Privilege versus Mandated Reporting by Psychologists: Dilemma, Conflict, and Solution. Dept. Of Psychiatry and Behavior Sciences This article is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in this article.