Attorney Articles | Confidentiality and Privilege Group Conjoint Family and Collateral Therapy Issues

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Confidentiality and Privilege Group Conjoint Family and Collateral Therapy Issues

Although individual group therapy members have no legal duty of confidentiality to one another, therapy cannot be effective unless confidentiality is respected.

The Therapist
July/August 2009

Issues regarding confidentiality in individual therapy can be confusing and complicated. Adding the dynamic of group, conjoint, family, or collateral therapy can make confidentiality an even more complicated concept to navigate. This article will review the various dynamics that generally occur when dealing with therapy outside the individual therapeutic situation.

Group Therapy Sessions:
Confidentiality If you do group therapy you know that each member of the group has a right to confidentiality. You cannot release the records of that group session unless you get authorization from each individual within the group. If records are requested or subpoenaed for any of the individual members of the group, you must maintain confidentiality of all the members of the group. Therefore, without consent from each member of the group or a court order, you will need to protect the group file in its entirety. This is also mandated by CAMFT Ethical Standard 2.2: When there is a request for information related to any aspect of psychotherapy or treatment, each member of the unit receiving such therapeutic treatment must sign an authorization before a marriage and family therapist will disclose information received from any member of the treatment unit.

Although individual group therapy members have no legal duty of confidentiality to one another, therapy cannot be effective unless confidentiality is respected. It is wise for therapists treating patients in group therapy to develop a group confidentiality agreement. Although there is no legal requirement that group members maintain the confidentiality of one another, simply implying that members should maintain confidentiality via a group confidentiality agreement may assist in keeping the various group members from disclosing the personal information of one another or at least set the parameters for treatment. Explaining within the agreement why confidentiality is important (for example, ensuring confidence in revealing personal and possibly embarrassing details) will likely increase the members’ willingness to comply. Moreover, in requiring group members to sign an agreement, the therapist is helping to protect himself/herself from allegations of negligence for failure to inform group members about confidentiality. See also, CAMFT Ethical Standard 2.7: Marriage and family therapists, when working with a group, educate the group regarding the importance of maintaining confidentiality, and are encouraged to obtain written agreement from group participants to respect the confidentiality of other members of the group.

Conjoint and Family Therapy:
The purpose of family therapy is to treat the family unit. And like group counseling situations, couples and family therapy provide a dynamic in which all members of the group have a right to confidentiality. However, unlike group counseling situations wherein the members don’t necessarily know one another, couples and family therapy can present issues wherein the participants in the therapy unit may be at odds with one another. It is wise to discuss these issues with the couple or family before commencing therapy to ensure that everyone is on the same page as to what is expected.

Also, keep in mind CAMFT Ethical Standard 1.9: When treating a family unit(s), marriage and family therapists carefully consider the potential conflict that may arise between the family unit(s) and each individual. Marriage and family therapists clarify, at the commencement of treatment, which person or persons are clients and the nature of the relationship(s) the therapist will have with each person involved in the treatment.

When receiving a request for records or a subpoena for records of an individual member of a family or couple, as stated above, you will need permission from each member of the family or couple, or the representative for the client in the case of a child. This is also mandated by CAMFT Ethical Standard 2.2, as discussed above. Without authorization from each member you should not release records unless you are mandated by the court. If you receive a request for records from a member of the family, and there is a minor participating in the therapy, you will need the authorization of the legal custodian of the minor, or possibly the minor’s consent. If you receive a subpoena for the therapy files and there is a minor within the group, you will need authorization from minor’s counsel, the guardian ad litem for the child, possibly the authorization of the child, as well as authorization of every other person who participated in the therapy, or a court order.

Many therapists get caught in the situation when doing conjoint or family therapy wherein the person requesting the records asks for “just the portion relevant to that individual.” The problem with attempting to provide records in this fashion is the therapist’s inability to separate the issues, conversations, and notes. Often one member of the couple or family will raise a scenario in which the other members will comment. How can the therapist separate that individual’s comments? Arguably, releasing anything, even dates of service, would be a breach of the other member’s confidentiality because it discloses that therapy was provided. An abundance of caution is encouraged in these situations and it is recommended that the therapist resist the release of records or information until authorization is received from each participant in the couple or family therapy, unless so ordered by the court. It is critical to protect the privacy of all of the participants within the conjoint or family unit.

“No Secrets” Policy
When providing couples counseling or family therapy, it is recommended to have a “no secrets” policy established between the participants of the couple or family therapy. This policy would address situations where information is shared with the therapist by one member of the couple/family unit outside of the presence of the other member of the couple/family unit. The policy should specify your expected boundaries. CAMFT’s recommendation of a “no secrets” policy would provide that information disclosed to the therapist could be shared with the other member(s) of the couple/family unit as the therapist deems appropriate. In other words, the therapist will not allow himself/herself to be put in the position of holding the secrets of one party participating in conjoint or family therapy.

Absent a “no secrets” policy, the therapist may find himself/herself in a situation where one member of the couple or family tells the therapist privately that he/she is planning to leave his/her partner despite the therapy. It could be unethical or at least problematic for a therapist with such information to continue to work with the couple knowing that one of the patients is not an honest and active participant in the treatment and has a contradictory agenda. The therapist is also in a bind should he/she choose to terminate therapy because of the information he/she has received. The therapist would need to provide a reason for termination, leaving the unknowing member of the couple in the dark. For more information on the “no secrets” policy, refer to the CAMFT article entitled, Use of a “No Secrets” Policy in Couple and Family Therapy written by Richard S. Leslie, Of Counsel to CAMFT.

Sometimes it may be clinically appropriate to bring in a third party, or collateral, into a client’s session. Contributions from a collateral within a session can be clinically beneficial to your patient’s treatment for history, context, or to better understand the patient’s current circumstances.

When it has been decided that a collateral will be joining the patient’s session, it is wise to be clear with the patient and the collateral what the collateral’s role will be (i.e., the collateral is not a patient and should have no expectation of confidentiality.) Things to address with the patient and the collateral include, but are not limited to:

  • Define who is the patient, and what the role of the collateral is;
  • Explain that the collateral is not a patient and not the subject of the treatment;
  • Explain that the collateral is there to assist in the patient’s treatment;
  • Explain that the therapy records will not be shared with the collateral; and,
  • Explain that because the collateral is not the patient, he/she should not have an expectation of confidentiality with regard to what he/she says.

During the patient’s session, the collateral may want to be a part of the therapy or think he/she is a participant in therapy. Reinforce with the collateral that you are not his/her therapist and provide him/her with referrals to other therapists if he/she wishes to pursue therapy. If an emergency were to arise with the collateral during the therapy session (i.e., the collateral threatens suicide), it may become necessary to treat the collateral’s emergency.

Bringing in a collateral can sometimes create situations wherein the collateral becomes confused as to what privacy rights he/she has, as well as what is legally and ethically prudent for the therapist as to the collateral’s privacy rights. What happens if the patient’s records are subpoenaed or requested? Does the collateral understand that his/her authorization to release the patient’s records is not necessary? When the patient requests a copy of his/her records, the collateral’s consent is not necessary, however, the therapist should redact the collateral’s personal information. But what about the situation wherein the therapist receives a subpoena for those same records? This circumstance could potentially pose a difficult dilemma for the therapist. Although, the collateral’s consent is not required to release the records per se, it would be wise to notify the collateral about the subpoena so that the collateral could intervene or hire an attorney to intervene if he/she is concerned about the content of the record. If that option is not available, the therapist should alert the patient (and/or the patient’s attorney) about the collateral information in the file so that the patient (or his/her attorney) can alert the judge and the judge can determine whether a protective order and/or redaction of collateral information is necessary. There remains an unanswered question as to whether the collateral is entitled to confidentiality in this situation, but caution is always advised.   As you can see, sometimes these situations can become sticky. If you find yourself in a situation where you have not clarified the confidentiality of the patient and the collateral, we advise you to seek the advice of legal counsel and/or call CAMFT for a consultation.  

When Family/Couples Counseling Becomes Individual Counseling
CAMFT Ethical Standards 1.14 states: Marriage and family therapists carefully consider potential conflicts when providing concurrent or sequential individual, couple, family, and group treatment, and will take reasonable care to avoid or minimize such conflicts. The CAMFT attorneys are often called upon to speak to the situation wherein a therapist previously saw a couple or family unit as a patient, and has recently transitioned to seeing only one member of the family or couple in individual therapy. In such a situation the member(s) of the couple or family who do(es) not continue treatment may feel betrayed. The ethical and legal dilemmas this transition can likely cause may add confusion to the issues of confidentiality.

For example, a couple comes in to discuss their relationship. Husband brings up the fact that he dislikes it when wife ignores him in favor of the children. After discussion and processing, it is realized that wife has an extreme attachment to the children based on her own childhood issues and that becomes the focus of the therapy. Assume that couple decides to break up and wife continues in treatment to address her issues.

If wife’s separate “individual” therapy file is later requested and/or subpoenaed, would there be a need to get husband’s consent since the content of what was discussed in wife’s individual therapy was originated within the “couple’s therapy?” This dilemma would likely be less of an issue if the information discussed during wife’s individual therapy was separate and distinct from what was discussed during couples counseling, but this is rarely the case. (i.e., Such a case where it might be separate and distinct would be if the couples counseling consisted of couples work and wife’s individual counseling consisted of wife’s problems with her boss.) There is a reasonable argument that husband has a right to confidentiality with regard to the information in wife’s individual file because the information originated during husband and wife’s therapy sessions. The therapist does not forfeit his/her obligation to the husband (prior patient) just because treatment with the husband ended. In this situation, the therapist would be wise to assert privilege if records are subpoenaed, and protect confidentiality on the husband’s behalf, since husband was once a patient, and the information in wife’s individual therapy originated during the couples counseling. In a situation such as this, the therapist’s best course of action would be to also obtain husband’s authorization before releasing the records in question. One can easily see the dilemma the therapist is in. In these situations it is wise to seek legal counsel and/ or call CAMFT.

The best way to avoid finding yourself in a situation where you are attempting to remedy confusion surrounding who has a right to confidentiality, who is the patient, and who needs to give authorization for the release of records, is to clarify and confirm issues surrounding confidentiality at the commencement of treatment or at the time a collateral is included in a patient’s therapy. Discussing the relationship of all participants and collaterals and then documenting these discussions will save you time, frustration, and from possibly being subject to legal pitfalls.

Catherine Atkins, JD, is a Staff Attorney for CAMFT. She is available to answer member calls regarding business, legal, and ethical issues.