About Us | Chapters | Advertising | Join
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.
This article by CAMFT Staff Attorney Michael Griffin, JD, LCSW, discusses six common myths and misconceptions that influence therapists in their interpretation of common legal and ethical issues.
Michael Griffin, JD, LCSW
When psychotherapists misinterpret legal or ethical issues, bad things can happen. Yet even the most conscientious therapist can make a mistake if they rely on incorrect information. This article clarifies key misconceptions and myths1 that erroneously influence therapists in their interpretation of common legal and ethical issues.
MYTH #1: A judge must issue a subpoena.
This is a very popular and enduring myth. The truth is that a judge is not required to issue a subpoena and an attorney can issue a subpoena while representing their client. Furthermore, individuals who are representing themselves in a legal matter are also able to issue subpoenas, depending on the rules of the particular court.2
The Purpose of a Subpoena
A subpoena is a court order that requires a party to some legal action (or a witness who is not a party to the legal action) to attend court or a deposition so they can testify or produce specified records, documents, or things.3 Many therapists report that they experience anxiety just thinking about the possibility of receiving a subpoena. This is unnecessary! While it may not be fun to get one, it is important to understand that receiving a subpoena does not mean that a therapist is in trouble or that something bad is likely to occur. The bottom line is that a properly served subpoena should not be ignored. (When in doubt, call CAMFT!)
There are different types of subpoenas, and the actions taken by a therapist in response depend on the type of subpoena and the relevant facts and circumstances. Therapists frequently receive a type of subpoena known as a Civil Subpoena for Business Records.4 This type of subpoena demands that the therapist produce a patient’s treatment record because it’s a type of business record and the therapist (or clinic) is the custodian of that record.5 In a typical scenario, the client has filed a lawsuit that alleges emotional harm as the result of some action by another person (aka the defendant), and the defendant is seeking a copy of the patient’s treatment record. In these instances, CAMFT members may contact the legal team to discuss their circumstances and options.
Accepting the Subpoena
In some instances, a custodian of the record may receive a subpoena via the mail. In other instances, such as when there is a demand for the therapist to appear at a trial, court hearing, or deposition, an attorney may hire a process server such as a bonded courier service to serve the subpoena. It is not a breach of confidentiality for a therapist to speak with a process server to confirm the therapist’s address and accept service of the subpoena. In fact, in a typical lawsuit involving a patient, it is the patient who provides the therapist’s name and address to the attorney issuing the subpoena during the course of discovery.6 Because the process server’s job is to serve the subpoena, it is not necessary or helpful for a therapist to say they “can neither acknowledge nor deny” that a person named in the subpoena is their client or to assert privilege with the process server.
A Response is Required
You must respond to a subpoena that is properly served. Failure to respond could result in a contempt-of-court citation and monetary sanctions (fines).7 This means it is necessary either to comply with the subpoena and supply the information demanded or to raise a legal objection to the demand such as psychotherapist-patient privilege.8
Generally, a therapist needs to consult with their patient to determine whether the patient would like to waive the psychotherapistpatient privilege so the therapist can release the information in question. It is always advisable for the patient to seek the advice of their attorney on this matter.
MYTH #2: Therapists are required to write letters for their clients.9
Clients often ask their therapists to write letters. Examples include a letter to the court concerning a client’s participation in therapy, a letter to a client’s attorney regarding treatment, a letter to a client’s school or employer regarding a desired accommodation, and a letter to an agency recommending an emotional support animal for a client.
No Duty to Write a Letter
Many therapists believe that they are required to write a letter for a client whenever asked to do so. A therapist is generally free to decline such requests.10 Although a client may be upset when a therapist says “no,” there is no legal or ethical duty to write a letter. The therapist ought to carefully consider the client’s request and determine what is appropriate under the circumstances.
Offering a Professional Opinion
Depending on the circumstances, the therapist may decide not to comment on an issue or to offer their recommendations in a letter, or they may decide to request additional clarifying information from the client. Alternatively, the therapist is free to provide the requested letter once they have determined that it is appropriate to do so.
Requests for letters vary depending on each client’s needs and circumstances. For example, a client may describe a request as urgent, with a plea that the therapist is “the only person who can help.” Or a client may believe that writing a letter is a small favor to ask of their therapist. But make no mistake: A request for a letter is really a request for the therapist to provide their professional opinion or recommendations regarding the client. In reality the therapist’s opinion, regardless of whether it is verbal or written in a treatment record, report, or letter, can have powerful consequences.11
Consider these questions before writing a letter:
Legal and Ethical Standards
A therapist who fails to consider the nature of the request and the possible consequences of writing a letter runs the risk of a malpractice lawsuit, an ethics complaint, or a disciplinary action by a licensing board. It is possible to minimize the likelihood of encountering problems if the therapist first determines whether it is appropriate to comment on an issue in light of the legal and ethical standards frequently relevant to this area:
Scope of Competency
According to California law and the CAMFT Code of Ethics, a therapist must possess a sufficient degree of education, training, and experience to provide their professional recommendations on a particular topic or issue because people are likely to rely on such an opinion. It is unprofessional conduct for a therapist to perform, or hold themselves out to perform, professional services beyond their field of competence as established by their education, training, and experience.17 18
Potential Conflicts of Interest
A therapist should avoid engaging in multiple roles for the same client when doing so is likely to impair their professional judgment or pose a potential conflict of interest.19 For example, there is a potential conflict of interest when a therapist provides an opinion regarding a psychotherapy client for use in a legal proceeding.20
Therapists should avoid being misleading in their writings. It is unethical for a therapist to offer an opinion about someone they have not evaluated unless they reveal the limits of the information upon which it is based and the potential effects of such limited information upon their opinion.21 For example, a therapist who only met with a client one time should disclose that fact when offering their opinion.
It is important to note that CAMFT’s Code of Ethics provides a stricter standard for therapists offering their professional opinions in court-involved cases. It specifically provides that marriage and family therapists shall only express professional opinions about clients/ patients they have treated or examined.22
MYTH #3: Therapists have a duty to advocate for patients in legal matters.
There are times when a therapist may believe that it is important to advocate for a patient involved in a legal matter. A common example is when a patient involved in a lawsuit asks their therapist to corroborate their allegations of emotional harm because of the actions of a third party. Another is when a patient asks their therapist to support their contentions regarding custody or visitation issues. Therapists who encounter such circumstances should understand that there is no legal or ethical duty to advocate for their patient in a legal matter.
The complexity of working with clients involved with the legal system is evident in the substantial content devoted to the topic in the Code of Ethics.23
Conflicting Roles/Dual Roles
Prior to offering their opinion about a client involved in a legal matter, a therapist should determine whether it is possible to do so without violating ethical standards related to conflicting roles and dual roles.24 When a preexisting client becomes involved in a legal proceeding, the therapist should speak with their client about the client’s expectations for the therapist’s involvement in their case and attempt to identify any potential role conflicts that may arise.25
Section 10.3 of the Code of Ethics states that whenever possible, therapists should avoid performing conflicting roles in legal proceedings.26 Consequently, a therapist who provides an opinion as a “treating expert” should only address issues that are relevant to their treatment role and not try to promote a predetermined legal outcome.27 By contrast, a therapist who provides an opinion as a “forensic expert” may offer an opinion or make recommendations in a variety of legal contexts, such as custody or visitation issues in family court.28 A treating therapist who assumes the role of forensic expert by offering an opinion in support of a client’s legal position can not only be accused of bias but may also find it difficult to maintain clinical objectivity regarding the client.29
It is appropriate for a therapist to be supportive of their client, but unnecessary entanglement with the client’s legal matters may result in problems for the therapist such as a lawsuit, a complaint to the licensing board, or an ethics complaint.
A therapist’s failure to remain impartial in a legal proceeding that involves their patient could lead to an allegation that the therapist is biased.30 It is easy to see how this may occur: When a therapist provides treatment, their focus is on their client’s perspective, and it may be difficult for the therapist to contend that they had an equal, or “fair,” understanding of the viewpoints held by other parties to the legal action. Therefore, when a therapist to a minor client offers their opinion concerning one of the minor’s parents, it may be alleged that the therapist is biased because of their limited understanding of the case or because of the unequal influence one parent has on the therapist’s opinion.
MYTH #4: Progress notes should contain as much (or as little) information as possible.
Progress notes are a primary means for a therapist to demonstrate their competency and hard work on behalf of a client. They are also a primary source of information regarding the therapist’s assessment and the documentation of treatment goals and progress.
The notion that it is best to document as little as possible in progress notes is false. Similarly, there is no reason to believe that it’s desirable to write as much as possible in the client’s record based on an assumption that more content is better. There is no single recipe to follow, but it helps to understand the purpose of progress notes as well as the relevant legal and ethical standards for documentation of treatment. Therapists write progress notes in a client’s/patient’s treatment record as a means of documenting aspects of the treatment provided, such as the nature of services rendered and the necessity and efficacy of the treatment. This is important for many reasons, including the fact that therapists have a legal and ethical duty to be competent when working with clients.31
No method of documentation is necessarily better than others. In fact, it’s unlikely that a particular method of documentation would be applicable to all therapists or suitable to all treatment settings. It’s important to remember that progress notes are a key component of maintaining a record that is consistent with sound clinical judgment, the standards of the profession, and the nature of the services rendered.32 33
The amount of information contained in progress notes depends on the client, the treatment plan, the client’s progress (or lack of progress), the nature of the services that were provided on the date in question, and whether there are any additional facts or observations relevant to the person’s treatment. Simply put, they ought to contain enough information to reflect who attended the session, when it occurred and for how long, and its purpose. Therapists should also consider any standards for documentation required by their employer or expressed in a contract, such as an agreement with an insurance carrier.
MYTH #5: Therapists should advise clients not to release their treatment records.
When a therapist advises a client not to release their treatment record, it is usually because the therapist believes that the record may not support the client’s legal case. While this may be an astute insight, if the demand for the record has a legal purpose the therapist would be ill-advised to offer what is arguably legal advice. In many instances, a party may be entitled to a copy of the client’s record and the client could face legal sanctions or other negative consequences for failing to produce the information. It may be wise for the therapist to suggest that the patient first speak with their attorney about the possible impact the information contained in the treatment record could have on the ongoing legal matter.
MYTH #6: When treating minors, therapists should obtain consent from both the minor and the minor’s parents.
A therapist may believe that it is better to obtain consent from both the minor and the minor’s parent(s). The therapist may do this because of uncertainty regarding the parents’ legal authority or as a gesture of respect to the minor. Unfortunately, when both the minor and the parent(s) provide consent to the minor’s treatment, it may muddy the water as to who actually provided consent and generate confusion over related issues such as confidentiality and access to the minor’s record. In most circumstances, a therapist will obtain consent for a minor’s treatment from the minor’s parent or legal guardian. When that is the case, the minor is entitled to confidentiality, but it is not absolute. Under California law, when a person has the right to consent to healthcare, they have corresponding rights to access the treatment records and to authorize the release of the patient’s confidential treatment information.34 Thus, a parent who gave consent to the minor’s therapy, or who has the authority to consent, could demand access to the minor’s confidential treatment record.35
However, if the minor provided consent to their treatment things get more complicated. Health & Safety Code sections 123110 and 123115 provide that a parent cannot inspect or obtain copies of their minor’s treatment record if the minor consented to their own mental health treatment.36 37 38 39 As a result, when a parent and their minor child have both provided consent, the parent can contend that they have a right to access the minor’s record and authorize its release. Yet one could also argue that the minor alone should exercise such authority. To avoid confusion, it is better to obtain consent either from the minor (if the minor meets the criteria under California law) or from the parent(s)/legal guardian(s) who has authority to consent but not from both. It is also recommended that the therapist have conversations with both the minor and the parent(s)/guardian(s) at the outset of treatment regarding confidentiality and access to treatment information/records.
The Value of Consultation
Many problems involving the misinterpretation of a legal or ethical issue can be avoided by taking the time to clarify a law or an ethical standard and by consulting with a trusted colleague or the CAMFT legal staff. Help is always just a phone call away: One of the unique benefits of membership in CAMFT is the availability of the legal team to consult on issues involving legal, ethical, and business matters. Therapists often have little time to spare, but the time spent consulting is usually worth it, especially if it helps the therapist avoid the pain of a lawsuit, an ethics complaint, or a complaint to a licensing board.
Michael Griffin, JD, LCSW, is a staff attorney at CAMFT. Michael is available to answer member calls regarding legal, ethical, and licensure issues.
1 The terms “myth” and “misconception” are synonymous in this article.
2 See “Notices to Attend a Hearing and Subpoenas,” California Courts self-help website, at https://www.courts.ca.gov/home. htm. This site offers instruction to the public regarding the use of subpoenas, including fillable forms, how to serve a subpoena, and how to object to a subpoena.
3 §1985(a), Code of Civil Procedure
4 A sample civil subpoena is available on the California Courts self-help website at https://www.courts.ca.gov/documents/ subp002.pdf.
5 §1985.3(a), Code of Civil Procedure
6 Discovery is a legal process used by the parties in a lawsuit to obtain information in preparation for trial.
7 §2023.010, Code of Civil Procedure
8 §1014, Evidence Code
9 The terms “client” and “patient” are synonymous in this article.
10 This discussion is not intended to suggest that a therapist should not offer their opinion. Assuming the absence of any legal or ethical problems, a therapist is entitled to offer their professional opinion.
11 See Griffin, Michael, JD, LCSW, “Sometimes It’s What You Don’t Say,” The Therapist, July/August 2021
12 §5.11, CAMFT Code of Ethics, (Scope of Competence)
13 §4.1, CAMFT Code of Ethics, (Dual/Multiple Relationships)
14 §10.3, CAMFT Code of Ethics, (Conflicting Roles); §10.4, CAMFT Code of Ethics, (Dual Roles)
15 §10.5, CAMFT Code of Ethics, (Impartiality)
16 §10.1, CAMFT Code of Ethics, (Testimony)
17 §4982(s), Business & Professions Code: “Performing or holding oneself out as being able to perform professional services beyond the scope of one’s competence, as established by one’s education, training or experience is unprofessional conduct.”
18 §5.11, CAMFT Code of Ethics, (Scope of Competence)
19 §4.1, CAMFT Code of Ethics, (Dual/Multiple Relationships)
20 §10.4, CAMFT Code of Ethics, (Dual Roles)
21 §5.14, CAMFT Code of Ethics, (Limits of Professional Opinions)
22 §10.7, CAMFT Code of Ethics, (Professional Opinions in Court-Involved Cases)
23 §10 through §10.12 in the CAMFT Code of Ethics concern responsibility to the legal system.
24 §10.3, CAMFT Code of Ethics, (Conflicting Roles); §10.4,CAMFT Code of Ethics, (Dual Roles)
25 §10.4, CAMFT Code of Ethics (Dual Roles)
26 §10.3, CAMFT Code of Ethics (Conflicting Roles
27 §10.2, CAMFT Code of Ethics, (Expert Witnesses)
29 §10.3, CAMFT Code of Ethics (Conflicting Roles); §10.4, CAMFT Code of Ethics, (Dual Roles); §10.5, CAMFT Code of Ethics, (Impartiality)
30 §10.5, CAMFT Code of Ethics, (Impartiality)
31 §4982(s) of the Business and Professions Code provides that “performing or holding oneself out as being able to perform mental health services beyond the scope of one’s competence, as established by one’s education, training, or experience, is unprofessional conduct.”; See also §5.11, CAMFT Code of Ethics, (Scope of Competence)
32 §4982(v) of the Business and Professions Code provides that “the failure to keep records consistent with sound clinical judgment, the standards of the profession, and the nature of the services being rendered is unprofessional conduct”; See also §5.3, CAMFT Code of Ethics (Client/Patient Records)
33 See Griffin, Michael, JD, LCSW, “On Writing Progress Notes,” The Therapist, March/April 2007 (updated 2020)
34 See Tran-Lien, Ann, JD, “Releasing Records in the Age of Adolescent Consent,” The Therapist, January/February 2019
35 §123110 and §123115 of the Health & Safety Code, which address access to patient records, state that “a parent or legal guardian of a minor cannot inspect or obtain copies of the minor’s records if the records pertain to health care of a type for which the minor is lawfully authorized to consent.”
36 §124260 of the Health & Safety Code and §6924 of the Family Code provide criterion for a minor who is 12 years or older to consent to their own mental health treatment.
37 §6922 of the Family Code addresses the right of a minor aged 15 or older to consent to health care if living separate and apart from the parent or guardian and managing their own financial affairs.
38 §56.11 of the Civil Code also provides that a patient who is a minor must sign an authorization for the release of confidential information for a service to which the minor could lawfully have consented.
39 §123115 of the Health & Safety Code gives therapists the broad discretion to deny a parent’s access to a minor’s record if the therapist believes that releasing the treatment record would have a detrimental effect on the minor’s psychological well-being or physical safety, or a detrimental effect on the professional relationship between the therapist and the minor patient.
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.