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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.
David G. Jensen, JD (Former CAMFT Staff Attorney)
Reviewed Oceober, 2021 by Bradley J. Muldrow, JD, CAMFT Staff Attorney)
The issue of treating minors who have been removed from their homes, or who have come under the jurisdiction of the juvenile court, has always presented challenges for clinicians, courts, and government agencies, especially county probation and county welfare. One such challenge concerns the confidentiality of information disclosed by minors to clinicians during sessions. When minors have county social workers or probation officers, how confidential is their information?
Obviously, true therapy depends on one’s ability to be honest with his or her therapist about the details, sordid or otherwise, of one’s life. It is not overstating the case to say that the clinical relationship depends on trust between patient and practitioner. Trust is the “glue” that holds the process together. This trust can be especially acute with minors who have been abused, or who have strayed from the safe confines of acceptable conduct and gotten themselves into trouble with the law. Sometimes a clinician will be the only person a minor can trust at an acute time. In this sense, any disclosure of the details of the minor’s therapy could severely harm the treatment relationship and even jeopardize the minor’s recovery.
In a perfect world, clinicians would be able to keep all patient information under double lock and key, and the clinician and patient would be left alone to address the minor’s underlying issues. But, we do not work in a perfect world. We work in California, and the state has its own ideas on these issues.
Because the minor is “in the system,” meaning the minor has been taken into temporary custody, is involved in a dependency proceeding, or is involved in a juvenile court matter, difficult decisions about the minor have to be made by players within the system. These players include social workers, probation officers, court appointed attorneys, judges, and even foster and adoptive parents. What results from the interplay of players within the system is that clinicians often feel like they are in the midst of a Zero-Sum game of tug of war. The system wants information about minors from therapists, but therapists are loathe to disclose it because of confidentiality concerns, both clinical and legal. So, in this game of tug of war, who wins? Who loses? Who gets pulled into the mud in the middle?
The case of In re Kristine (2001) 94 Cal. App.4th 521 suggests one possible approach to the problem. In this case Kristine was a dependent of the court and the county social worker was attempting to get information about Kristine from Kristine’s therapist. The social worker was trying to determine what services Kristine needed to help Kristine make a successful transition from court-dependent minor to functional adult, an obviously worthy goal for any minor in the system.
But, Kristine also had minor’s counsel, who objected to the disclosure of Kristine’s confidential information because of the psychotherapist-patient privilege. So, the county social worker pulled one way, and minor’s counsel pulled the other, and, once again, the game of tug of war was on. So, who ended up in the mud in the middle?
Everyone did because everyone got a little mud on them.
In Kristine’s case, the Court of Appeal held that the psychotherapist-patient privilege protected Kristine’s confidential communications and details of her therapy but did not preclude her therapist from testifying about Kristine’s “participation and progress” in therapy. Thus, a balance was struck between the needs of the county social worker and the dependency court to acquire information about Kristine, and the obligation of her attorney to assert the psychotherapist-patient privilege on her behalf.
The resolution of In re Kristine raises an issue about whether the principle of “participation and progress” should be limited to courtroom testimony only, or does the concept have applicability outside of court as well. Does the case establish a precedent for a social worker, or a probation officer, to call a therapist anytime and request “participation and progress” type information about a patient? Would a release still be required for a therapist to provide the social worker or the probation officer with a patient’s “participation and progress?” If so, who would sign such a release? These questions have troubled players within the system for years.
Since In re Kristine was decided in 2001, county social workers have attempted to use it to allow for the flow of patient information outside of court. Many therapists, on the advice of minor’s counsel, have dug their heels in and have refused to provide even “participation and progress” about a patient without written authorization or court order. We have continually stressed the need for written authorizations because they facilitate informed decision-making and they help protect therapists from breach of privacy accusations. In the end, the players within the system created a slogging, cumbersome system that did not function very well because everyone was afraid to share information due to liability risks. Clinicians also did not want to dissolve the “glue” holding the therapeutic relationship together.
To allow for the more graceful flow of patient information within the system, in 2008, the state legislature added § 56.103 to the California Civil Code. This statute was enacted “to improve the sharing of health care and mental health information concerning children and youth in the state’s care by eliminating barriers caused by a lack of clarity in existing laws regarding who may be authorized to share health care and mental health information.” It was this lack of clarity in the law that helped create the tug-of-war within the system.
California Civil Code § 56.103 is essentially divided into two types of information, with different rules for the two types. The first type is “medical information,” which I’ll refer to as Type One information, and the rule regarding it is set forth in 56.103(a). The second type of information is “medical information concerning the diagnosis and treatment of a mental health condition of a minor,” which, I’ll refer to as Type Two information, and the rule for it is in 56.103(e). The gravamen of the issue is that it is easier for Type One information to flow within the system than it is for Type Two information to flow within the system.
Since therapists will typically be in possession of Type Two information, this article will focus only on it. If you are interested in Type One information, Google “California Civil Code 56.103” and you can obtain a copy of the statute.
The Rule for Type Two Information
California Civil Code § 56.103(e)(1) says if a health care provider “determines that the disclosure of medical information concerning the diagnosis and treatment of a mental health condition of a minor is reasonably necessary for the purpose of assisting in coordinating the treatment and care of the minor, that information may be disclosed to a county social worker, probation officer, or any other person who is legally authorized to have custody or care of the minor (hereinafter Care Custodian).”
The language in California Civil Code § 56.103(e)(1) bears some comment. We still have a game of tug-of-war going on, but health care providers now have more leverage in the struggle.
One issue that bears discussion is this: Social workers, probation officers, and Care Custodians will likely want information about a minor’s mental health condition, but the statute clearly gives health care providers the authority to determine whether information concerning the minor’s mental health is reasonably necessary to assist in coordinating the minor’s treatment and care. It is the health care provider’s call to make, not the social worker’s, the probation officer’s, or the Care Custodian’s. Therapists treating kids in the system must be ready, willing, and able to articulate and apply the “reasonably necessary” standard in light of the authority they have to make a crucial determination under this law. Remember, it is the health care provider’s call, not anyone else’s.
A second issue that bears some discussion is the concept of “Care Custodian.” This rule is phrased in the alternative, so anyone with “custody” of a minor or anyone exercising “care” of a minor would qualify. These categories could be filled by foster parents as well as by relatives and adoptive parents. Before disclosing any information to anyone claiming to have custody or care of a minor, you should verify such arrangement by examining any applicable paperwork. Certainly, a copy of such paperwork should be included in the minor’s file. Key questions to ask are: By what legal authority do you have custody of this minor? By what legal authority do you have care of this minor?
A third issue that bears discussion is that California Civil Code § 56.103(e)(1) allows, but does not mandate, Type Two information to flow to assist “in coordinating the treatment and care of the minor.” Key questions to consider regarding whether the information should flow or not are: How would diagnosis and treatment information concerning this minor and his or her mental health condition assist in coordinating this minor’s treatment? How would such information assist in coordinating this minor’s care? With good answers to both of these questions, the minor’s mental health information should not flow; it should be kept confidential.
California Civil Code § 56.103(e)(1) is great in the sense that it respects the sanctity of mental health information, but it also places a requirement on health care providers to give careful thought to the questions set forth above. If you are working with kids in the system, you must know how this rule works! There are a couple of other aspects to this law that health care providers need to be familiar with: