In the March/April 2012 issue of The Therapist, hypothetical situations involving working with minors were presented in four vignettes. Members were invited to respond to a set of questions analyzing the potential ethical/legal issues reflected in the vignettes, and to comment on the availability of options for each of the therapists depicted in the vignettes. Members who responded to all four vignettes were awarded two (2) CEs. CAMFT would like to thank all members who provided answers for our consideration. We’ve included portions of the best answers submitted, along with our additional comments.

Vignette No. 1 
Linda (a 12-year-old) asked LMFT Mary if she could come in for therapy to discuss her parents’ divorce. LMFT Mary decided that since Linda was over 12 she could consent for herself. In yesterday’s session, Linda admitted that during times when she was extremely distraught about her parents’ divorce, she had taken it out on her boyfriend, Bobby (a 17 year old). She told LMFT Mary that one time she even hit him with a baseball bat causing Bobby to blackout. Because Linda is only 12, LMFT Mary decided not to make a child abuse report.

Member Answer to Vignette No. 1 (by Maureen Hernandez, LMFT) 
"Linda is old enough to provide consent. The therapist, Mary, should not ignore Linda’s violent behavior toward Bobby because Linda is 12. Abuse is not negated by the age of the offender. The focus might be more appropriate as date violence; at the least, Linda should be informed that she committed battery against Bobby. While Mary is, hopefully, providing help to Linda in dealing with her anger and lack of self-control, reporting should also be done. Mary should be taking a close look at the relationship between 12-year-old Linda and 17-year-old Bobby. If Mary learns that this relationship is sexual, she must report it since Linda is 12. With Linda’s permission, the therapist may eventually bring one or both of the parents in to a session to deal with the strong emotions Linda is expressing, as well as the relationship of Linda and her older boy friend. I would make a strong effort to find a group working with adolescents with anger issues; sometimes young clients respond best when they know others have similar issues."

Comment to No. 1 
Any minor, 12 and older, can consent to his/her own treatment if he/she is mature enough to participate intelligently in the mental health treatment or counseling. (Health & Safety Code §124260.)¹

Physical injury inflicted on a minor, by other than accidental means, by any person, is abuse. Because Bobbie (age 17) is a minor and the victim of physical abuse (a baseball bat causing a blackout), a child abuse report must be made, period. The fact that Linda is also a minor is immaterial in this situation. 

If Linda and Bobby were having sexual relations, a mandatory report would need to be made on this aspect as well, due to the disparate ages of 12 and 17. To learn more about consensual sex between minors and when a mandatory report must be made, please review the CAMFT article, ―Reporting Consensual Activity Between Minors: The Confusion Unraveled‖ (2009), which can be found at www.camft.org (see ―Resource Center).

Vignette No. 2 
Susie (a 16-year-old) and Susie’s parents came in to discuss treatment with LMFT Mark. LMFT Mark reviewed his standard informed consent with both Susie and her parents, including a section on confidentiality which briefly mentioned reasons for a breach of confidentiality, including "harm to self."

After the third session, Susie admitted to LMFT Mark that she was sexually active with a few different people in her high school, and that she smoked pot on weekends. LMFT Mark determined that this did not rise to the level of ―harm to self‖ worthy of a breach of confidentiality but instead he would work with her clinically. After the fifth session, she told LMFT Mark that she had been ―cutting,‖ but never near an artery. LMFT Mark again determined not to breach confidentiality. After the seventh session, Susie told LMFT Mark that she had been drinking heavily, and had started blacking out at parties, waking up in strange beds (clearly having had sexual intercourse). LMFT Mark decided to tell Susie’s parents about the drinking and blackouts.

Member Answer to Vignette No. 2 (by Nancy Sutton, LMFT) 
LMFT Mark’s situation is tricky and I empathize with him. It is wise to establish the limits of confidentiality in the beginning of treatment and inform the parents that if the therapist speaks to them, it is unlikely the teenager will confide in the therapist. Unfortunately, there are many grey areas in common adolescent behaviors. Certainly having multiple sexual partners is risky behavior – emotionally as well as health-wise (STDs). In addition to addressing this issue clinically, I would want to know if condoms are being used, and if she is aware of the sexual history of her partners. I would bring up the question of self-endangerment and whether her parents need to know, but I would not break confidentiality unless I felt the client was risking consequences such as acquiring the HIV virus through highly risky behavior, and was unwilling to change her behavior. Then I would explain to the client why we needed to inform her parents.

In terms of the cutting, this meets the threshold of self-harm in my opinion. Though she may not be cutting near arteries (but how much does she know about anatomy?), she risks infection and/or disfigurement, and a doctor needs to be consulted.

The final confession, that she is waking up in strange beds, indicates that Susie’s behavior may be escalating, and since she was intoxicated, it is highly unlikely that she has taken any precautions against pregnancy and/or STD transmission. Therefore, the parents must be involved in the treatment. I would ask for a parent session and try and help them view their daughter’s behavior in a non-punitive way, and work together to get her more intensive treatment."

Comment to Vignette No. 2
This fact pattern is very difficult for a treating therapist given the lack of clarity in the law on these topics. All patients, minors included, have a general right of confidentiality in their mental health treatment. However, according to Civil Code §56.10, a therapist may disclose confidential information if the therapist believes that disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient. Moreover, Evidence Code §1024 states that there is no privilege if the therapist has reasonable cause to believe that the patient is in such mental/emotional condition to be a danger to him/herself. So, while the law allows a therapist to breach confidentiality when a patient is a danger to him/herself or has put him/herself in imminent and serious harm’s way— determining when that has occurred is not so easy. It is rarely obvious or clear cut, and likely varies from therapist to therapist. At what point does sexual activity move from unwise choices needing clinical discussion to ―unsafe‖ behaviors which suggest the possible need for parental involvement?

There isn’t a single answer to that question, because what may be appropriate in one case may be contraindicated in another. Susie’s ―cutting‖ while not intending to commit suicide is a very risky behavior which could easily result in serious harm. As stated earlier, if the therapist believed that the minor’s unsafe behavior represented a serious and imminent threat to the health and safety of that minor, the therapist would be permitted (but not required) to disclose confidential information to the minor’s parents, if doing-so would reduce the risk of harm to the minor.

Generally speaking, the therapist must exercise the reasonable degree of skill, knowledge and care that would ordinarily be exercised by other therapists. In cases where there is a risk of self-harm to a client, one of the issues is whether or not the therapist was aware of facts from which he or she could reasonably conclude that the client was likely to self-inflict harm in the absence of preventative measures.² Given the facts stated in this vignette, the nature of Susie’s ―cutting‖ is unclear. However, because there are multiple, serious risk factors described, including heavy use of alcohol by the client with reported blackouts along with high risk sexual behavior, the therapist would have to consider the possible need to disclose confidential information to Susie’s parents, as a protective measure.

In any event, it is extremely important for the therapist to remember to document his or her clinical reasoning, including any protective actions taken, and the overall cooperation of the patient and family with the therapist’s efforts. Also, consultation with a colleague is often beneficial when working with complex, and high risk clients, because it reflects that the therapist is prudent and thorough in his or her treatment of the particular client.

Vignette No. 3
Fred (an 8-year-old) was brought in for treatment by his parents to work with LMFT Mike. Both Mom and Dad signed consent forms and said they looked forward to LMFT Mike working with Fred. After a few sessions, Fred admitted that Dad had hit Fred on many occasions. Accordingly, LMFT Mike made a child abuse report. The next day Dad called LMFT Mike and stated that he withdrew his consent, and that LMFT Mike could no longer see Fred. LMFT Mike believes Fred desperately needs treatment, but is afraid of Dad making a complaint against his license with the BBS.

Excerpts of Member Answer to Vignette No. 3 (by Eileen Maxwel, LMFT) 
"Reporting is legally mandated for all mental health professionals when there is knowledge or ―reasonable suspicion‖ drawn from any professional contact of abuse at home or in any setting. Both of Fred’s parents signed consent forms to permit LMFT Mike to work with their son, Fred. The Dad’s call is not sufficient to discontinue therapy for his son. In this case, both parents signed permission for treatment. Only one signature is required for an intact marriage. The question is, does Fred’s mother want her child to continue therapy? If so, her signature is sufficient."

Comment to Vignette No. 3
The mandated report made by LMFT Mike is clearly warranted. Because both Mom and Dad consented to treatment originally, Dad’s withdrawal alone does not mandate termination of treatment. LMFT Mike can rely on Mom and Dad’s original consent to continue to see Fred, simply with Mom’s continued support. Note: Because Fred is under 12 years of age, he cannot consent for himself to ongoing treatment. LMFT Mike should also take into consideration that Dad will likely be unhappy with this decision and may attempt to derail Fred’s treatment, or file a complaint with the licensing board (although meritless), and such behaviors by Dad would need to be addressed clinically by LMFT Mike.

Vignette No. 4
LMFT Mable has been seeing Davey (a 5-year-old) for almost a year. Throughout the treatment, Davey has talked about his relationship with his parents and how their divorce makes him sad. Davey has indicated that while he loves his Mom, he likes spending time with his Dad more because his Dad doesn’t yell at him as much and Mom seems to always ―be out.‖ Recently, Mom has called LMFT Mable and asked for a copy of Davey’s file so she can ―use it in the custody battle.‖ LMFT Mable is not sure whether she is legally mandated to turn over the file to Mom. Also, she recently received a subpoena from Dad’s attorney for Davey’s file. LMFT Mable is not sure if she legally must or clinically should turn over the files.

Excerpt of Member Answer to Vignette No. 4 (by Julie Robbins, LCSW) 
"...If a court orders the release of the file, there is nothing to prevent that...If the father wants to read the file, I would encourage the father to come into my office to read the file...or wait for the court order to release the file. (Only a judge can order this, not an attorney, so he needs to check the subpoena for who is asking for the release of the chart.)"

Comment to Vignette No. 4
When treating a minor, a therapist needs to be knowledgeable about the laws surrounding confidentiality and privilege specific to a minor. Parents have a general right to know how their children are doing in therapy, and general access to the medical record itself— but certainly there are exceptions.

In this situation, a child (like an adult) is the holder of the psychotherapist-patient privilege, and the child’s parent(s) cannot waive that privilege. Given the facts of this vignette, LMFT Mable would be expected to assert the psychotherapist-patient privilege on behalf of the child. In order for LMFT Mable to turn over Davey’s records to either Mom or Dad (or their attorneys), LMFT Mable would want to obtain a court order directly from the judge (waiving Davey’s privilege). Alternately, if the court has appointed an attorney for the child (―minor’s counsel‖), or if the child has a guardian ad-litem, either of those individuals may waive the privilege on behalf of the minor.

Therapists should also be familiar with Health and Safety Code §123115 that pertains to a parent’s right of access to the minor’s treatment record in general. California law does provide parents a right of access to the minor’s treatment record. However, therapists have a significant degree of authority on this issue: When a parent requests access to his or her child’s treatment record, if the therapist determines that providing access to the minor’s treatment records would have a detrimental effect on the therapist’s professional relationship with the minor, or on the minor’s physical safety or psychological well-being the therapist may decline the parent’s request.

Conclusion
Treating minors, while rewarding, is complicated to say the least. As noted above, clinical consultation and thorough documentation are key when dealing with minors and their parents or guardians. Please note that you may also call CAMFT when difficult legal and ethical situations arise. 

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Catherine L. Atkins, JD, is a staff attorney and the Deputy Executive Director at CAMFT. Cathy is available to answer members’ questions regarding legal, ethical, and licensure issues.

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 Endnotes 

^1. Historically, most therapists relied on Family Code §6924 for minor consent to treat. §6924 stated that a therapist could treat a minor who is 12 or over if the minor was mature enough to participate intelligently in the therapy and the minor had been the victim of incest or child abuse or the minor is a danger to self or others. However, in 2011, SB 543 went into law which now permits a professional person to treat a minor 12 or over if the minor is mature enough to participate intelligently in the mental health treatment or counseling. No longer is there a requirement for the child to have been the victim of incest or child abuse, or to have been a danger to self or others. The provisions of Family Code Section 6924 continue to be a part of law, but are preempted by this new section of law, Health & Safety Code §124260. 

^2. See, Griffin, Michael, LCSW, JD, ―Working with Suicidal Clients,‖ The Therapist, July/Aug, 2011.