Before You Press Record….

The Therapist
September/October 2019
Luke Martin, MBA, JD (CAMFT Staff Attorney
Updated November,2022 by Bradley J. Muldrow, JD (CAMFT Staff Attorney)

Actress and comedian Tiffany Haddish recently admitted she has secretly recorded her auditions to learn from those performances. She specifically stated, “You know what I would do? I would put my phone on voice memo, put it in my bag, do my audition, walk out the room, leave my bag, come back and be like, ‘Oh I forgot my purse,’ get my purse, get in the car and listen.”^I As invasive as this sounds, modern technology has made recording easy to do and is potentially happening in therapeutic settings.

Let’s say a new client walks into your office and sits down casually. Without your knowledge, they begin recording your conversation. Devices today are as small as a button, often replicate common clothing items such as a belt, and are easy to camouflage to the untrained eye. Perhaps this has already happened to you without you even being aware of it. While you may not find your sessions having any entertainment value, others may differ. The television network MTV is still producing the longest-running reality television show to date, The Real World, which is simply about, “seven strangers, picked to live in a house, work together, and have their lives taped.”ⁱⁱ

Or, let’s imagine a client one day, bringing their phone in and asking if they can record the session so they can “use it later to review later.” Or you’re supervising an associate, and you want to monitor the quality of your supervisee’s work. There are a plethora of ways clients and therapists might want to use these audio and visual recordings for health related purposes. Like Ms. Haddish, their desire might be to learn and process the session in their own way, which is unconventional to the therapist. Of course, the recording of therapeutic sessions raises legal, ethical, and clinical concerns that this article will attempt to address in full.

California Invasion of Privacy Act
The California Invasion of Privacy Act, here forth known as (“CIPA”) was enacted in 1967 and is codified into the California Penal Code beginning at § 630, et seq. The rationalization for its passage was simple “to protect the right of privacy of the people of this state.”iii The law makes it illegal for an individual to monitor or record a “confidential communication” unless all parties to the conversation consent to the recording. This is frequently known as the “two-party consent” rule and with regards to psychotherapy services, requires that both the patient and the therapist consent to the recording.

What does a confidential communication entail? According to the California Penal Code, a confidential communication “means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties….”iv The standard of confidentiality, which concerns eavesdropping by any electronic or recording device, “is an objective one defined in terms of reasonableness.^v

Simplified - would an average person consider the contents of the conversation as private or not? Generally speaking, unless otherwise noted, a conversation occurring in a therapist’s office is confidential. Any recordings without the therapist and client’s consent could potentially be a violation of CIPA.

The following are general issues and questions that trainees, associates, and licensed MFTs face when it comes to audio and video recordings.

#1: Violation of CIPA
A client or a collateral has recorded my private conversation/session or video recorded my private conversation/session without my permission. Can I assert my rights? What are my options?

Response:
In an era where “likes” are a form of currency, it is completely fathomable that clients today will be more interested in using the session for content or self-profit rather than mental health treatment. A client can come to you and ask to video record the conversation. Like reality TV, the content can be cut, edited and twisted so that a completely new story could be told. A patient may want to skip the editing and just live stream the conversation on YouTube or Facebook unfiltered. Recording just the audio, as innocuous as it may sound, may be used for a podcast or digital audio file. Then, there are those involved in lawsuits that may attempt to record conversation secretly in the name of preserving evidence. A hostile conversation in therapy may be a useful tool for a partner to utilize in a contentious divorce or custody case.

For a violation of CIPA to have occurred, the alleging party would have to prove three elements. First, an electronic recording took place; second, the communication was confidential; and third, all parties did not consent.” If a criminal action is taken against the perpetrator, the offending party may be charged and can receive up to a $2,500 fine and up to one year behind bars. If a civil action is taken, for each violation, a person who is injured can sue the violator for triple the amount of damages sustained or $5,000 per violation, whichever is greater. Therefore, a client who has recorded a confidential communication without the appropriate permission may be charged, and/or you may take action for monetary damages. However, there are a few complicating factors, including your duty to maintain confidentiality and clinical implications.

Generally, HIPAA and confidentiality laws require authorization for disclosure of confidential information, unless the disclosure falls under the mandatory or permissive exceptions. In addition, the CAMFT Code of Ethics is explicit that “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 the therapy…, or d) if there is an authorization previously obtained in writing…”

However, depending upon the egregiousness of the violation, there may be recourse for the therapist to assert their rights. California evidence code §1018 states, “[t]here is no privilege…if the services of the psychotherapist were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a tort….” With this statute, an argument can be made that certain relevant client information may be disclosed to stop the commission of a crime or tort. In addition, HIPAA regulations permit disclosure of confidential information to a law enforcement official if the provider believes in good faith constitutes evidence of criminal conduct that occurred on the premises of the provider’s business.^vi

When deciding whether to contact law enforcement or take legal action against your client, it is recommended therapists consider the following issues as the existence of a therapeutic relationship is a complicating factor: Whether it would be worth having the client arrested; The possibility of having to face the client in court; and/or the potential of having to deal with a BBS complaint or counter-suit from an angry client. Therapists who face situations such as these are recommended to seek legal consult to discuss their rights, options, and potential consequences.

It would be best, if possible, to discuss this issue with the client. Therapists may want to consider letting the client know that this behavior is unlawful, unacceptable, and when/how the action could result in termination. Setting these boundaries and reinforcing them could help restore order to the therapeutic relationship. However, if the trust is broken and the therapist cannot objectively continue to provide therapy, the therapist may want to consider whether terminating the relationship and referring the client out would be the most appropriate action.

If the recording has been posted on a public website, such as YouTube, it might be appropriate to contact the website host directly and let them know of your desire to remove the content (without providing any confidential information). An article on the CAMFT website (www.camft.org) entitled You Yelp and Social Media written by Alain Montgomery may be a useful resource if you find yourself in this situation as it addresses best practices to aid in removing social media posts.

#2: Client Requests to Record Session(s)
My client has approached me to record our therapeutic session together. What are some of the legal, ethical, and clinical issues I should consider?

Response:
From a legal perspective, the law requires “two-party consent.” This simply means that all parties to the potential recording must consent for the recording to take place. A therapist does not have a legal or ethical obligation to allow a client to record sessions. Therefore, it is solely within the therapist’s discretion as to whether to allow recordings of sessions.

If used appropriately, it could be beneficial for clients to have access to recordings of their therapeutic sessions/discussions. Clients would be able to use the recordings to process what was said during therapy or practice skills acquired. For example, a client might want to record a guided imagery session conducted by the therapist for use out of therapy. They could utilize this tool to help clarify some concepts or areas of discussion. Often, when dealing with larger issues it takes additional time, outside of therapy, to process the session. This recording would allow them to refer back to key points within the session and also allow them to review the prior session to better prepare for future sessions. It can also be used as a way for the client to find reassurance in some of the comments made by the therapist. If a client has an impaired memory, it also makes logical sense to have some sort of recording.

On the other hand, there is potential that some clients may utilize the recordings inappropriately. The ability for a client to be able to rewind and/or fast-forward may cause clients to listen only to part of the conversation rather than the whole. Before permitting the session to be recorded, the therapist should consider if the client will ultimately benefit from the recording or not. For example, taping a client’s frustrations or venting about family stressors with the purpose to share with the family directly may not be advisable.

Also, are there any potential negative consequences of allowing the client to review the recording unsupervised? Is the client mature enough to be in receipt of their confidential session? Is the therapist and/or client aware of the possible adverse effects of the dissemination of patient information in this modality?vii Additionally, how does recording the session affect effective communication between the therapist and the client? It is advisable to review the client’s request on a case–by-case basis.

In this modern era, therapists should consider including a provision on recording guidelines as a part of their informed consent or initial disclosures. Setting up the hows/whys/whens of recording with a client upfront and making them aware that taping without consent is illegal could be helpful.

#3 Therapist Recording Sessions
“I” as the therapist want to record my interactions with my client. What do I need to consider legally, ethically, and clinically before I take this action?

Response:
The first question that the therapist should ask themselves is – why am I recording the conversation? In terms of standard of practice, recordings of sessions are not typically done (with the exception of recording for training purposes, see #4), therefore it is prudent that the therapist consider the purpose of recording sessions, and the possible ramifications.

CAMFT has received questions from therapists who desire to record clients for their own blog or for publications they are writing, or for fear of potential false allegations from litigious clients. These scenarios pose a potential challenge as the benefit of the recordings are not for the client, but rather the therapist. In these scenarios, the general “two-party consent” rule would be applicable to comply with CIPA demands. If any identifying information would be disclosed, a subsequent release of the information would need to be discussed and obtained in addition to the written consent to record.

From an ethical perspective, the therapist’s use of such recording for the therapist’s benefit raises potential issues of impairment of professional judgment and/or client exploitation. On this specific subject, the CAMFT Code of Ethics states, “[m]arriage and family therapists do not use their professional relationships with patients to further their interests and do not exert undue influence on patients.”^viii Some issues for therapists to consider include: Could the client feel exploited by this request? Does the client feel obligated to oblige because the therapist is asking a “favor?” Will recording the sessions change the dynamics of the therapeutic relationship? Would it impair the client from speaking freely in session for fear of use? These potential issues should be carefully evaluated before the therapist proceeds in requesting to record session(s).

If a therapist chooses to move forward with recording, per CIPA, the client must consent prior to the recording. Similarly, the CAMFT Code of Ethics states that “[m]arriage and family therapists obtain written informed consent from patients before videotaping, audio recording, or permitting third-party observation.”ix Therefore, having consent in writing before the recording takes places would be trequired in this scenario.

When requesting consent for recording, it is recommended that the therapist provide a written statement to the client regarding its purpose, if and how the recording would be maintained or securely destroyed, and that the client has the right to decline the recording at any time. If included in the disclosure statement or informed consent form, you may want to consider having your patients initial next to the paragraph that includes the discussion of recordings. This makes it clear to your clients that they have read and were put on notice of, their rights regarding the recording of therapeutic sessions/discussions. It is important to note that obtaining written consent and authorization for disclosure does not necessarily equate to the client waiving any violations of ethical standards or potential harmful consequence to the therapeutic relationship or to the client.

#4: Recording Sessions for Supervisor Review
To provide adequate supervision and training to my trainees and associates, “I” as the supervisor require my supervisee to record their sessions. Are there any concerns with this?

Response:
Like with any recording, all parties must agree before the recording can take place. According to California Business and Profession Code, supervision includes, with a client’s written consent, observing or reviewing an audio or video recording of the trainee or associate’s therapy session, as deemed appropriate by the supervisor.x Moreover, the supervisory plan form, which supervisors and supervisees must sign, requires supervisors to sign a statement acknowledging their duty to “[d]irectly observe therapy, or review audio or video recordings of therapy, in an amount I deem appropriate, with the client’s written consent.” Accordingly, the BBS expects supervisors to observe or review recordings of therapy sessions offered by their supervisees at levels the supervisors deem appropriate. It is recommended that supervisors require their supervisees to provide all their clients with written statements (or include the statements in the informed consent form) requesting consent for the recordings, the purpose of the recordings, and how the recordings would be securely maintained/destroyed.

It is important to note that supervisors should also consider providing written statements requesting consent from all their supervisees who will be recording sessions. CIPA would require that the associate or trainee, and any other ancillary individuals in the therapy session, provide consent prior to the recording. As mentioned earlier, the CAMFT Code of Ethics states that the required consent should be done in writing.^xi

#5: Workplace Recordings
Do “I” as a therapist have the ability to record my office, including my waiting room, for safety concerns?

Response:
There is no law outright prohibiting the use of video cameras in the workplace for legitimate reasons. Best practice would be to make the cameras visible so employees and patients would know what areas are being monitored and provide proper signage. Remember, if the area can be deemed a public space, i.e., a waiting room, there is less of an expectation of privacy under CIPA. There are exceptions to this rule, including the California Labor Code, which prohibits employers from recording the activities of employees in restrooms, locker rooms, or rooms designed for the changing of clothes unless authorized by court order.xii Besides being a labor law issue, the specific use of certain recording devices in specified areas may constitute a criminal offense as well.^xiii

The case of California v. Gibbons details why it is imperative to announce and not hide the cameras from employees or clients. In this case, the court ruled that the use of a “nanny cam” or a secret recording device is inappropriate when the consent of all parties is not had and the communication or act has an expectation of privacy.xiv Disclosing the use of a recording device and/or making the camera visible lessens the expectation of privacy and helps legitimize the device’s usage.

While the act of video recording may be appropriate; audio recording may not be. In California, an employee or employer would still be bound by CIPA when it comes to confidential communications. Generally, a recording of private communication in the workplace would be prohibited unless everyone involved in that conversation consents or knows that the conversation will be recorded. So, recording a conversation with an employee or supervisor without their knowledge would generally be deemed inappropriate without proper consent.

#6: Family Therapy Consent
One of the parties involved in family therapy has requested to record the session. If I consent and one of the parties consents will that be sufficient to fulfill the “two-party consent rule?”

Response:
The “two-party consent” rule’s name is a bit misleading as it implies that only two individuals would need to consent to the recording for it to be valid. In reality, if all parties to the conversation expect that it is to remain private then all parties must consent for the recording to be lawful.^xv

#7: Recordings Become Part of the Record
Does a recording maintained by the therapist become part of the record? Am “I” as the therapist obliged to provide it upon the request of the client or via subpoena?

Response:
If the recording is maintained by the therapist for purposes of clinical treatment or to make clinical decisions, it should be kept with the patient’s record. Under the California Health and Safety Code, a patient record is an item “in any form or medium maintained by, or in the custody or control of, a health care provider relating to the health history, diagnosis, or condition of a patient, or relating to treatment provided or proposed to be provided to the patient.”^xvi It would be unprofessional conduct if the LMFT, “[fails] to keep records consistent with sound clinical judgment, the standards of the profession, and the nature of the services being rendered.”^xvii Even if the LMFT maintains a paper record only and this electronic file or record is an outlier, LMFT’s are required to maintain the record in either electronic or written form.^xviii

Generally, with limited exceptions, under California Health and Safety Code, any adult patient, a minor patient authorized by law to consent to his or her own treatment, or the patient’s legal representative, (i.e., a parent, guardian, conservator, or personal representative of a deceased patient) has a right to access the clinical record.^xix If recordings are a part of the patient record, and you receive a valid requerst/authorization for the treatment record, you would be obliged to find a way to replicate it an provide it to the patient (unless a valid exception to deny applies). Keep in mind, under California law, providers have the right to offer just a treatment summary and not the full record. Covered entities under HIPAA do not have that same option. For more information on a covered entity’s obligations under HIPAA, read CAMFT’s article entitled, A Patient’s Right to Acess Mental Health Records written by Ann Tran-Lien.

Additionally, a therapist’s recording of a therapy session does not cause the communications to lose their confidential or privileged status.^xx The therapist would still have an obligation to take reasonable steps to protect the recordings no different than anything else contained in the client’s record.

Supervision recordings that are maintained for the sole purpose of supervision and training of provider staff and for peer review purposes do not need to be included in the patient record and patients do not have access to such recording. The patient and/or legal representatives if applicable should be made aware of how such recordings will be maintained and destroyed. As recordings containing clinical information are still subject to HIPAA and California law that protect the privacy of clinical information, such recordings would need to be securely maintained and disposed of in accordance with California or HIPAA laws.

#8: Recordings Outside of California
Telehealth or the delivery of health care services using information and communication technologies to consult, diagnose, treat, or educate a patient while clinician and client are at different sites is becoming increasingly more common.^xxi What happens when my client currently located in a state that does not have the same laws as California? Can I record? Can they me without my consent?

Response:
The California Supreme Court in Kearney v. Salomon Smith Barney, Inc. addresses how a situation like this should be handled. In the case, a Georgia based financial institution made calls to California clients and recorded the conversations without consent. The law in Georgia is a “one-party consent” meaning all parties to the conversation do not have to consent. In the end, the court found that California law, which required the consent of all parties, applied to the case.xxii This means that the more stringent rules of California generally apply if either therapist or client is in California and expects the communication to remain confidential.

#9: Are There Exceptions to the Recording Law?
Is there any time when I can record that would not be a violation of CIPA?

Response:
The California Supreme Court in Kearney v. Salomon Smith Barney, Inc. addresses how a situation like this should be handled. In the case, a Georgia based financial institution made calls to California clients and recorded the conversations without consent. The law in Georgia is a “one-party consent” meaning all parties to the conversation do not have to consent. In the end, the court found that California law, which required the consent of all parties, applied to the case.^xxiii This means that the more stringent rules of California generally apply if either therapist or client is in California and expects the communication to remain confidential.

Additionally, according to California Penal Code, there is an exception to the general recording laws when a potential crime victim records a conversation because they are the subject to threats of harm including extortion, kidnapping, bribery, human trafficking or violence against another.^xxiv These expectations are extremely narrow and generally would be more for your protection than any other use.

Final Thoughts
Staying alert and aware of what may be going on in front of you is critical to maintaining healthy boundaries. There is a myriad of potential scenarios where the rules described above may or may not come into play. Knowing and understanding the basics will provide you a starting place as to how to handle your individualized recording scenario. Please remember that consultations with peers and/or one of CAMFT’s legal staff regarding recording laws may be beneficial before any action is taken

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Disclaimer: This information is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.

 

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^[i] https://people.com/movies/tiffany-haddish-would-secretly-record-racist-feedback-after-auditions/

^[ii] https://www.theringer.com/tv/2020/4/29/21240341/the-real-world-cultural-influence-chappelles-show-parodies

^[iii] California Penal Code § 630

^[iv] California Penal Code § 632(c)

^[v] Faulkner v. ADT Sec. Services, Inc. (9th Cir. 2013) 706 F.3d 1017, 1019 (quoting Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1488).

^[vi]  45 CFR 164.512(f)(5)

^[vii] See CAMFT Code of Ethics 2.3 which provides “Marriage and family therapists store, transfer, transmit, and/or dispose of client/patient records in ways that protect confidentiality.”

^[viii] CAMFT Code of Ethics 4.7

^[ix] CAMFT Code of Ethics 3.5

^[x] Cal Bus and Prof Code §4980.43.1(b)(7)

^[xi] CAMFT Code of Ethics 3.5

^[xii] Cal. Labor Code 435(a)

^[xiii] Cal. Pen. Code §647(j)

^[xiv] California v. Gibbons, 215 Cal. App. 3d 1204 (Cal Ct. App. 1989).

^[xv] California Penal Code § 632

^[xvi] Cal Health & Safety Code § 123105(a)(10)(b) and (d)

^[xvii] Cal Bus & Prof Code §4982(v)

^[xviii] Cal Bus & Prof Code §4980.49(a) and (b)

^[xix] Health and Safety Code 123110

^[xx] Menendez v. Superior Court (1992) 3 Cal.4th 435

^[xxi] Cal Bus and Prof Code §2290.5(a)(6)

^[xxii]Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 130-1

^[xxiii] California Penal Code Section 633.5