About Us | Chapters | Advertising
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 will assist therapists in identifying the legal issues related to the participation of collaterals in therapy.
Sara Jasper, JD, CAE (CAMFT Staff Attorney)
Updated October, 2020 by Bradley J. Muldrow, JD (CAMFT Staff Attorney)
Legal and ethical problems are most likely to result when communications between a therapist and client are inadequate and/or unclear at the time the therapeutic relationship is established. Therapists must be prepared to address key issues at the outset of treatment. This article will focus on the importance of determining who wants to be involved in treatment, who should be involved in treatment, and the rights of the parties involved.
Patients vs. Collaterals and the Role of the Therapist as Gatekeeper
Whenever prospective patients seek treatment, the therapist should spend time assessing the treatment request and laying the necessary foundation for that therapeutic relationship. First and foremost, the therapist must identify who the patient(s) will be. Is an individual, a couple, or a family seeking treatment? What unit of treatment does the therapist deem appropriate in light of the issues being presented by the person or persons seeking treatment? Although they should be involved in the decision-making process, prospective patients should not dictate who will participate in therapy. Under California Evidence Code §1011, a “patient” means someone who: Consults a psychotherapist; submits to an examination by a psychotherapist for the purpose of securing a diagnosis or treatment; or submits to an examination for the purpose of scientific research on mental or emotional problems. The therapist should use his or her clinical judgment to determine who else, besides the consulting patient, will participate in therapy.
If a couple or family is the patient, each of the participating members of the unit is a patient. When an individual is the patient and invites a person to attend a session with him or her, it is important for the patient and the invitee to understand that the invitee does not automatically become a patient by virtue of attending the session. Sometimes it may be clinically appropriate to bring a third party into therapy, usually referred to as a “collateral.” Contributions from a collateral can be clinically beneficial to a patient’s treatment. Whether that invitee will be a patient or serve as a collateral to treatment is up to the therapist. A collateral is usually a spouse, family member, or friend who participates in therapy to further the treatment interests of the patient. Since the collateral is not the subject of the treatment, the collateral is not considered a patient.
Before allowing a collateral to participate in treatment, the therapist should first consider what purpose including that person in treatment would serve. Will the collateral assist in the patient’s therapy by providing information about the patient? Will the collateral assist in the patient’s therapy by working with the therapist and patient to better understand the patient’s issues/ diagnosis? Will the collateral assist in the patient’s therapy by providing the patient with emotional support? Although patients may request that a third party be involved in therapy, a therapist who does not believe the collateral’s involvement is necessary does not have to agree to a third party’s involvement.
Psychotherapists who invite or permit third parties to participate in therapeutic sessions should clarify the collateral’s role in treatment for the sake of the patient and the collateral. Since collaterals are not patients, they should understand that the therapist will not be diagnosing or treating them. While collaterals should not receive or sign an informed consent, a therapist should provide collaterals with information regarding the therapist’s practices, policies, and procedures. The information will not only help to outline the terms of the collateral’s participation in the client’s therapy, but also give the collateral an opportunity to ask questions or raise concerns before participating in the therapeutic process.
Topics to address with the patient and the collateral include, but are not limited to:
During a 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.
There are two cases in particular that demonstrate why it is critical for therapists to define the role of parties involved in therapy. The cases include: Schwarz v. Regents of University of California (1994) 226 CA 3d 149; Smith v. Pust (1993) 19 CA 4th 263.
In Schwarz v. Regents of University of California, a therapist began seeing a child, named Marlon, who was wetting the bed. At the time, the child’s parents were engaged in a bitter divorce. During the course of Marlon’s treatment, his parents would periodically meet with the therapist to assist in Marlon’s therapy. One day, Marlon’s mother notified the therapist that she was moving the child to London to free herself and Marlon from harassment by Marlon’s father. The father sued the therapist for negligence on the basis that the therapist counseled, aided, abetted, and facilitated the move to London and the concealment of the child’s whereabouts from the father.1 Marlon’s father ultimately lost his case because the court found that the “intent and purpose” and the “end and aim” of the therapy was to treat the child’s problems, not to treat the family’s general dysfunction and, therefore, the therapist owed no duty to the father. Agreeing to pay for son’s therapy and periodically meeting with therapist to assist in son’s therapy was not enough to create a “genuine professional relationship” that would have established a legal duty owed to father by therapist.
Smith v. Pust involves a husband and wife, Cain and Mary Beth Smith. Mary Beth sought counseling from therapist Keith Pust for “repressed memories” arising out of sexual abuse she ensured as a child. Mary Beth completed the patient questionnaire and Pust saw her weekly from October 1989 through May 1990. At some point, Pust asked Cain to sit in on Mary Beth’s therapy. Cain agreed because he was “very interested in her therapy” and wanted to help his wife. Cain sat in on two of his wife’s sessions. In addition, Cain spoke with Pust over the telephone on multiple occasions about Mary Beth’s therapy. In May of 1990, Mary Beth told Cain she had had sexual contact with Pust two weeks prior. Cain went to Pust’s office and confronted him about Mary Beth had disclosed. Pust provided Cain with the details. He said he drove Mary Beth to a parking lot where they engaged in oral sex and sexual intercourse. Cain “believed” he was a patient of Pust’s, “when in counsel with him about Mary Beth,” however. Cain sued Pust for negligence, bad faith, Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress. The Court of Appeal concluded Cain was not a patient of Pust’s for the following reasons: Cain had not contracted with Pust for therapy; the intent and purpose of the therapy had been to help Cain’s wife address issues that stemmed from her sexual abuse as a child; the intent and purpose of the therapy was not to deal with issues related to the couple’s relationship; any advice husband received from therapist was strictly incidental to purpose of dealing with wife’s own problems. In other words, similar to the outcome in the Schwarz case, the court found there was no genuine professional relationship between Pust and Cain because Cain had served as a collateral to Mary Beth’s therapy.
These cases demonstrate the importance of identifying the treatment unit at the outset of the therapeutic relationship so that the therapist and patient clearly understand their respective obligations and rights.
Confidentiality vs. Privacy and Documenting a Collateral’s Involvement in Treatment
Because collaterals are not patients, they do not have a right to confidentiality and could not successfully assert the psychotherapist-patient privilege held by patients. Collaterals do, however, have a general right to privacy regarding certain information, including, but not limited to, finances, sexual history, physical or mental health.2 Therefore, this information should not be released.
In order to avoid confusion regarding the identity of the patient and to uphold the confidentiality of the patient and/or the privacy rights of the collateral, the record should clearly identify the patient, the purpose of treatment as well as the “intent and purpose” or the “end and aim” of the collateral’s involvement.
Handling Requests for Records and Billing Information When Collaterals are Involved
If a patient or a third party requests a record about a clinical session in which the collateral participated, and the patient record is disclosed, the collateral’s personal information should be redacted to ensure that the collateral’s privacy is maintained.
Therapists who receive a subpoena for patient records that includes a request for information related to sessions in which a collateral participated, should notify the subpoenaing party that they will be redacting third party information. In this situation, case law also indicates that where confidential information pertains to third persons, the party from whom the disclosure is sought is under an affirmative duty to notify the third party of the request for disclosure. Moreover, the third person must be given a fair opportunity to object to the invasion of their privacy.3 The therapist might also want to consider alerting the patient so that either the patient or the patient’s attorney can alert the judge in the case. The judge could then determine whether a protective order for the third party’s private information is necessary.
In addition to serving as collaterals to therapy, third parties are also sometimes involved as the financier of a person’s therapy. Although a third party-payer does have a right to invoices related to the patient’s treatment, paying for the treatment does not make that third party a patient, give the third party a right to details about the therapy, or give the third party the authority to make decisions about release of the patient’s record.
It is important for those who participate in the therapeutic process to understand their role in therapy. Therapists who want to avoid creating confusion or unrealistic expectations in therapy should work at the outset of the relationship to clarify the roles of all parties involved in therapy, particularly collaterals.
1 Schwarz v. Regents of University of California (1990) 226 Cal.App.3d 149, 151-152
2 Cal. Const., art. I, § 1
3 Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 658