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The Legal Department articles are not intended to serve as legal advice and are 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 the article.
In the January/February 2014 issue of The Therapist, members were invited to analyze two clinical vignettes and provide a written response to several questions posed concerning the application of legal and ethical standards to each scenario. Read the responses submitted by Kathleen Wexler, LMFT and Joanne Silva, LMFT.
Michael Griffin, JD, LCSW
In the January/February 2014 issue of The Therapist, members were invited to analyze two clinical vignettes and to provide a written response to several questions posed concerning the application of legal and ethical standards to each scenario. Members who answered all eight of the questions earned two (2) self-study continuing education units.
CAMFT appreciates the responses submitted by members. Excerpts from responses received from Kathy Wexler, LMFT, and Joanne Silva, LMFT, and comments by CAMFT attorney, Mike Griffin, JD, LCSW, are provided below.
Vignette No. 1
Jane, LMFT, had her first couple’s counseling session with Sam and Tina this morning. During the meeting, the couple told Jane that they needed her help in addressing various marital problems, especially their problems with communicating. Although Sam was fairly quiet during the counseling session, he explained that he was simply very tired from his demanding job. Tina pointed out that one of the problems in their relationship was that Sam often complained of feeling tired after working long hours, and it seemed to her that his love for his job may have become more important to him than their relationship. Tina was particularly angry and hurt about the lack of attention that she felt from Sam over the last few weeks. Sam and Tina thought that they had a lot in common, and neither had any intention of seeking a divorce. Although Tina was definitely more expressive during the session than Sam, Sam said that he loved Tina, and he believed that their marriage was worth saving.
A few hours after their counseling session, Jane received a call from Sam. Sam blurted out to Jane that he has been having an affair and does not know if he wants to end the affair, but does not want to end his marriage. He also told Jane that he does not want Tina to know. Sam said that he did not want to hurt Tina and he was certain that she would be devastated if she knew about his affair. He was relieved to have the opportunity to attend marital counseling so he could be certain that the marriage was going to make them both happy. After their first session, Sam said that he realized that he couldn’t live without Tina and he felt guilty about the fact that he may have led another person on.
1. If Jane decides to disclose the information she learned from Sam to Tina, would the disclosure be a breach of Sam’s confidentiality? Please explain.
Generally, a therapist cannot release confidential information to a third party without first obtaining a signed authorization from the client.1
When a therapist is treating a couple, the identifiable client is the couple. CAMFT Code of Ethics, Part I, Section 1.9 provides, “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 treating a couple, consider whether a “No Secrets Agreement” is appropriate to utilize. The “No Secrets Agreement” allows the therapist to release information learned from one member of the couple to the other member of the couple without it being viewed as a breach of confidentiality. Also, the “No Secrets Agreement” would help the therapist to avoid any potential conflict of interest when members of the couple decide to share information individually with the therapist. CAMFT has a sample “No Secrets Agreement” on the CAMFT website in the Resource Center.
If Jane did not discuss a “No Secrets Agreement” with Sam and Tina at the outset of therapy, arguably, Sam would have a reasonable expectation of confidentiality during his individual conversations with Jane. If, however, a “No Secrets Agreement” was agreed upon with both clients prior to therapy, then Sam should not have a reasonable expectation of confidentiality and Jane would have discretion to share the information if she deems it to be appropriate.
Kathy Wexler, LMFT: “…I’m hoping Jane began therapy by discussing with Sam and Tina how she would manage information like this. Responsible couple therapists routinely go beyond the simple “limits of confidentiality” at the bottom of the intake form.”
2. If Sam signed a “No Secrets Agreement” after he told Jane about his affair, could Jane proceed to inform Tina of his disclosures?
If Sam signed the “No Secrets Agreement” after he told Jane about his affair, it would only apply to communications that were made after he signed it. Sam would have had a reasonable expectation of privacy for any communication he had with Jane prior to signing the agreement. Therefore, Jane should not inform Tina of Sam’s disclosures about his affair, as they were made prior to the agreement.
Kathy Wexler, LMFT: “Even if Sam signed a “No Secrets Agreement,” it would be clinically unwise and unnecessary for Jane to be the one to tell Tina about the affair. Such a literal application of “no-secrets” puts the therapist in a very dysfunctional triangle. Sam needs to take responsibility for deciding when, or even whether, to tell his wife about the affair. Jane’s position should be that she is responsible for the welfare of both her clients and that she is unable to continue with therapy that involves deception likely to be damaging to Tina.”
3. If neither Sam nor Jane planned to disclose Sam’s affair to Tina, should Jane continue to provide couple’s counseling to them, or, should she refer them to another therapist? If Jane elects to refer them to another therapist, how should she explain her decision to Tina?
This is a difficult situation for the therapist. If Jane continues to act as the marital therapist, she would be withholding information that is of value to Tina, her client. It would be reasonable for Tina to feel her treatment had been compromised, or even that Jane had been dishonest with her, if Jane and Sam maintained the “secret” during the marital therapy. If Sam decided he was not going to inform Tina of the affair, (it is entirely his decision), Jane would have little choice other than to refer the couple. Jane would have to say a referral was necessary based upon a conflict of interest. Although it is likely Tina would want to know what the specific issue was, Jane could cite the fact that rules concerning confidentiality prevented her from elaborating on the nature of the conflict.2 3
Joanne Silva, LMFT: “Jane might state she has been made aware of information regarding the couple that presents a conflict of interest for her and therefore termination of their relationship as couple and therapist is necessary.”
4. If Sam no longer wishes to continue couples counseling with Jane, but Tina does, should Jane provide individual therapy to Tina? Please explain.
If Jane elected to provide individual treatment to Tina, her relationship with Tina could be compromised. It would be difficult for Jane to enter into a therapeutic relationship with Tina, while, unbeknownst to Tina, she maintained the knowledge of Sam’s extra-marital affair. Therefore, if Tina requested individual therapy from Jane, it would be appropriate for Jane to refer Tina to another therapist.
Joanne Silva, LMFT: “It would not be prudent to continue therapy with Tina…. if Jane continued to see Tina while withholding this knowledge of the affair, she is in a position of being dishonest with her client, which is unethical.”
Vignette No. 2
For the past month, Tom, LMFT has been providing weekly individual psychotherapy sessions to Carrie, age 12. At the start of treatment, Carrie’s mother, Amy informed Tom that she and Carrie’s father share joint legal custody. According to Amy, she is Carrie’s primary physical custodian, but Carrie stays at her father’s house on Wednesdays and alternate weekends.
Amy decided to bring Carrie to a therapist because of her concern that Carrie has never recovered from her parent’s divorce. In addition, Amy believes that her daughter is bothered by the fact that her father has a habit of ignoring her during visits. Amy also believes that Carrie is nervous around her father, due to his quick temper, but probably doesn’t want to say anything about it to avoid making him mad.
During their session today, Carrie began crying and told Tom that during the past weekend with her father, he became extremely angry when she refused to get off her cell phone to eat dinner. Carrie said he yelled profanities at her, snatched the cell phone, and threw it against the wall, breaking it. He then grabbed her by the arm and said, “Look, missy, if you don’t listen to me again, you’ll get it!” Immediately after the session, Tom received a phone call from Carrie’s father. He demanded Tom stop treating Carrie and to provide him with a copy of Carrie’s complete treatment records within five (5) days.
1. Was Tom permitted to provide therapy to Carrie? Please explain.
When a minor’s parents are divorced, and they have joint legal custody of the minor, either of the parents may provide consent to treat the minor, so long as there is no provision to the contrary stated in the custody agreement, or in any other court order. Such provisions may include, but are not limited to, the requirement that both parents agree on the selection of a psychotherapist, or, the requirement that each parent inform the other parent about the fact that he or she is taking the minor to see a health care provider. Because the parents have joint legal custody of this minor, it was permissible for Tom to provide therapy to Carrie based upon the mother’s consent, so long as the custody agreement, or some other court order, does not state otherwise. 4
As a general rule, it is advisable for therapists to obtain the consent of both of the minor’s parents. If the therapist does not have the consent of both parents, he or she may ask to see the custody agreement, to confirm the issue of legal custody, and to determine whether it contains any provisions concerning the parent’s authority to provide consent for treatment of the minor child.
2. What should Tom do, if anything, about the information Carrie disclosed to him regarding the situation with her father over the weekend?
Carrie’s communications with her therapist are confidential. Of course, Tom is entitled to ask Carrie if she would permit him to share information with one (or both) of her parents, if he believed that it was clinically appropriate to do. Thus, Tom must consider how, and when, it is clinically appropriate to address the events that were described by Carrie. A related issue for Tom to address is whether there is a need to file a suspected child abuse report. To say the least, the father’s behavior was extremely inappropriate, when he yelled profanities at his daughter, threw her phone against the wall and grabbed his daughter by the arm. Based on the stated facts alone, it is questionable whether Tom would conclude he had reasonable suspicion that Carrie’s father willfully caused her to suffer unjustifiable physical pain or mental suffering, or that he had engaged in unlawful corporal punishment.5 If Tom suspected that Carrie that was suffering “serious emotional damage,” or that she was at a substantial risk of suffering “serious emotional damage,” as evidenced by her mood or behavior, he would be permitted to file a suspected child abuse report.6
3. How should Tom proceed in light of father’s demand that Tom terminate treatment with Carrie?
In view of the father’s opposition to continued treatment, it is important for Tom to immediately clarify whether the parent’s custody agreement, or any other court order, requires father’s consent to the minor’s mental health treatment. It is hard to know exactly what Carrie’s father is thinking and why he suddenly decided to contact Tom and demand an end to her treatment. It is not out of the question that Carrie’s father may be willing to reconsider and remove his opposition to Carrie’s treatment. It may be possible for Tom to obtain the father’s support by contacting him, and attempting to involve him more directly in his daughter’s therapy. Ultimately, if Carrie’s father remains opposed to his daughter’s treatment, it may be difficult for Tom to continue in his role as her therapist. Carrie may feel distressed by the fact that her father does not want her to participate and Tom may find it is hard to be effective if he is under attack.
On the issue of consent, Tom may consider the alternative of obtaining consent for Carrie’s treatment directly from Carrie, rather than from her parents. California law allows a minor who is 12 years of age or older, to consent to mental health treatment or counseling services if, in the opinion of the attending professional person, the minor is mature enough to participate intelligently in the mental health treatment or counseling services.7
Kathy Wexler, LMFT: “The father’s demand illustrates clearly why it’s wise to get the consent of both legal custodians first. One option might be to have Carrie sign for consent to treatment on her own. Another would be to continue to see Carrie based on her mother’s permission, and let the father go back to family court and ask the judge to modify the custody order to forbid the therapy.”
4. How should Tom respond to the father’s request for a copy of Carrie’s treatment record?
Although Carrie’s father demanded that he be provided with a copy of her treatment records within five days, under California law, Tom would be required to provide her father with a copy of her records within 15 (fifteen) days after receiving the written request.8 Furthermore, under California law, Carrie’s father would not be entitled to inspect or obtain copies of her records if Tom determined providing the father with access to her records would have a detrimental effect on Tom’s professional relationship with Carrie, or on her physical safety or psychological well-being. If Tom made such a determination, it would be important for him to document his reasoning in Carrie’s record, noting his actions are in accordance with Section 123115 of the Health and Safety Code.9
Michael Griffin, JD, LCSW, is a Staff Attorney at CAMFT. Michael is available to answer member calls regarding legal, ethical, and licensure issues.
1 §4982 (m), Business and Professions Code, CAMFT Code of Ethics, Part I, §2.1; See, Griffin, Michael, JD, LCSW, “Confidentiality Issues in Agency and Private Practice Settings,“ The Therapist, Sept./Oct., 2008
2 §1.13, CAMFT Code of Ethics, Treatment Alternatives
3 §1.14, CAMFT Code of Ethics, Potential Conflicts
4 See, Jensen, David, G., JD, “Blue Levis & White Tee-Shirts: When Treating Minors 12 Years of Age or Older, Consent Does Not Automatically Equal Authorization to Release Confidential Medical Information,” The Therapist, July/August 2002); Atkins, Cathy, JD, “Treatment of Minors: 4 Vignettes Answered,” The Therapist, Sept./Oct., 2012
5 §§11165.3; 11165.4, California Penal Code; See, Gonzalez v. Santa Clara County Department of Social Services (2014) 223 Cal. App.4th 72; See also, Tran-Lien, Ann, JD, “A look at the Child Abuse and Neglect Reporting Act,” The Therapist, Jan./Feb., 2014
6 §11166.05, California Penal Code
7 §124260, Health and Safety Code
8 §123110, Health and Safety Code
9 §123115, Health and Safety Code