Law and Ethics for California Marriage and Family Therapists: Confidentiality

(6 hours $19)

INTRODUCTION

Historically, stigma and discrimination associated with mental illness were reinforced by laws that stripped people of their legal rights upon admission to a psychiatric hospital, and by social attitudes that equated mental illness with potential violence. While many of the laws that reinforced discrimination have been removed, much stigma remains. Confidentiality laws seek to protect individuals from discrimination stemming from this stigma. These laws protect as private information both the fact that an individual has sought mental health treatment, and the disclosures that are made during treatment.1 Confidentiality laws can also serve to protect the client or other family members and even the therapist from the danger that may result when a violent individual learns that someone they have intimidated is seeking support, or when that individual learns of the identity of the therapist.

Confidentiality is generally considered to be a cornerstone of the doctor-patient relationship.2  Many psychotherapists assume that mental health treatment is most likely to be successful when the client has a trusting relationship with the clinician.3 People tend to reveal much of their private selves in the course of receiving psychotherapy. Trust that clinicians and institutions will preserve client privacy is necessary to maintain the value of mental health services. Laws that protect confidentiality attempt to preserve this trust, so that people will be more likely to benefit from mental health services such as psychotherapy. With trust in confidentiality, people are more likely to pursue psychotherapy, are more likely to afford the level of care that they need by utilizing their insurance and other benefits, and are more likely to divulge information that is needed to ensure effective treatment. In addition to the needs of individuals, confidentiality laws serve the interests of family members, employers and society in general, by helping to reduce the impact of mental and emotional disorders and personal problems.

Legislatures and the justice system have given considerable attention to issues concerning the role of privacy in health care over the last three decades. While the legal right to privacy has been at issue most frequently in procreation and end of life decisions, it is well established as being of great importance in mental health services.4

The right to privacy itself, in its most abstract form, has its genesis in the fourth amendment of the Constitution.5

Confidentiality and required reporting guidelines pertaining to California Marriage and Family Therapists are set forth in Article 2, Section 4982, of the California Board of Behavioral Science (BBS) Statutes And Regulations booklet. Section 4982 states: The board may refuse to issue any registration or license, or may suspend or revoke the license or registration of any registrant or licensee if the applicant, licensee, or registrant has been guilty of unprofessional conduct.

Subsection (m) documents unprofessional conduct to include the following: Failure to maintain confidentiality, except as otherwise required or permitted by law, of all information that has been received from a client in confidence during the course of treatment and all information about the client which is obtained from tests or other means.

Specific statutes and regulations that address confidentiality are codified in the California Evidence Code, Civil Code, Business and Professions Code, Pen. Code, and Welfare and Institutions Code. An overview of these rules and related practical information follows. Sometimes federal law may be stricter than state law, or apply because of the program that the therapist serves. These laws include HIPAA and Code of Federal Regulations (CFR) 42.

What is to be Confidential

The confidentiality of psychotherapy clients includes the question of whether they are participating in mental health services. Psychotherapists must refrain from confirming or denying that any individual is or has been a client, so long as there is no legal exception to confidentiality.6 All details of the verbal and written communications in the course of psychotherapy, assessment, testing, reporting and other communications are also protected as private information.7

The Place of Confidentiality in the Therapeutic Relationship

As Ethical Standards

California MFT’s may be members of the American Association of Marriage and Family Therapists, or the California Association of Marriage and Family Therapists. Both of these organizations, like many professional organizations, set forth ethical guidelines pertaining to the practices of their members. Ethical guidelines exist to improve the standing of the profession in the community, and to reduce the pressure upon legislatures to take action to manage the profession. These guidelines are normally designed not to conflict with existing law, but they may be more or less restrictive. Therapists should join a major professional organization and be familiar with its ethical guidelines. Benefits of membership may include discounted access to malpractice insurance, and some availability to legal advice. The California Association of Marriage and Family Therapists (CAMFT) provides both of these benefits.

The California Association of Marriage and Family Therapists (CAMFT) and the American Association of Marriage and Family Therapists have promulgated a code of ethics. Like any professional organization, CAMFT and AAMFT expect their members to abide by the standards expressed in their codes.

The CAMFT code establishes as an “overriding principle” of its confidentiality section, “…that marriage and family therapists respect the confidences of their patient(s).”8 CAMFT takes the position that a marriage and family therapist can consider a grouping of two or more people to be a patient, stating that these therapists, “have unique confidentiality responsibilities because the ‘patient’ in a therapeutic relationship may be more than one person.”9. AAMFT has a similar provision in its code. Nonetheless, both stress the importance of the confidentiality of the clients as individuals. They also provide for cooperating with legal requirements for breaching confidentiality, and for providing informed consent, that is, orienting clients to the nature of confidentiality and the ways it may be breached. Neither code goes into nuances such as withholding information authorized for release because its release would not be in the best interest of the client, or what measures to take regarding continuity of care when a member of a couple shares a secret with the therapist that he or she does not want the therapist to tell the other member of the couple.

The CAMFT code regarding confidentiality is not highly detailed, but covers the most critical topics of confidentiality.

2.1 Marriage and family therapists do not disclose patient confidences, including the names or identities of their patients, to anyone except a) as mandated by law b) as permitted by law c) when the marriage and family therapist is a defendant in a civil, criminal or disciplinary action arising from the therapy (in which case patient confidences may only be disclosed in the course of that action), or d) if there is an authorization previously obtained in writing, and then such information may only be revealed in accordance with the terms of the authorization.

 2.2 When there is a request for information related to any aspect of psychotherapy or treatment, each member of the unit receiving such therapeutic treatment must sign an authorization before a marriage and family therapist will disclose information received from any member of the treatment unit.

 2.3 Marriage and family therapists are aware of the possible adverse effects of technological changes with respect to the dissemination of patient information, and take reasonable care when disclosing such information. Marriage and family therapists are also aware of the limitations regarding confidential transmission by Internet or electronic media and take extra care when transmitting or receiving such information via these mediums.

 2.4 Marriage and family therapists store, transfer, transmit, and/or dispose of patient records in ways that protect confidentiality.

 2.5 Marriage and family therapists take appropriate steps to ensure, insofar as possible, that the confidentiality of patients is maintained by their employees, supervisees, assistants and volunteers.

 2.6 Marriage and family therapists use clinical materials in teaching, writing, and public presentations only if a written authorization has been previously obtained in accordance with 2.1 d, or when appropriate steps have been taken to protect patient identity.

 2.7 Marriage and family therapists, when working with a group, explain to the group the importance of maintaining confidentiality, and are encouraged to obtain agreement from group participants to respect the confidentiality of other members of the group.10 

The AAMFT Code of Ethics is slightly more detailed, but very similar to that of CAMFT.

2.1 Marriage and family therapists disclose to clients and other interested parties, as early as feasible in their professional contacts, the nature of confidentiality and possible limitations of the clients’ right to confidentiality. Therapists review with clients the circumstances where confidential information may be requested and where disclosure of confidential information may be legally required. Circumstances may necessitate repeated disclosures.

2.2 Marriage and family therapists do not disclose client confidences except by written authorization or waiver, or where mandated or permitted by law. Verbal authorization will not be sufficient except in emergency situations, unless prohibited by law. When providing couple, family or group treatment, the therapist does not disclose information outside the treatment context without a written authorization from each individual competent to execute a waiver. In the context of couple, family or group treatment, the therapist may not reveal any individual’s confidences to others in the client unit without the prior written permission of that individual.

2.3 Marriage and family therapists use client and/or clinical materials in teaching, writing, consulting, research, and public presentations only if a written waiver has been obtained in accordance with Subprinciple 2.2, or when appropriate steps have been taken to protect client identity and confidentiality.

2.4 Marriage and family therapists store, safeguard, and dispose of client records in ways that maintain confidentiality and in accord with applicable laws and professional standards.

2.5 Subsequent to the therapist moving from the area, closing the practice, or upon the death of the therapist, a marriage and family therapist arranges for the storage, transfer, or disposal of client records in ways that maintain confidentiality and safeguard the welfare of clients.

2.6 Marriage and family therapists, when consulting with colleagues or referral sources, do not share confidential information that could reasonably lead to the identification of a client, research participant, supervisee, or other person with whom they have a confidential relationship unless they have obtained the prior written consent of the client, research participant, supervisee, or other person with whom they have a confidential relationship. Information may be shared only to the extent necessary to achieve the purposes of the consultation.11

As an Aspect of Informed Consent

At the outset of therapy, clinicians provide their clients with verbal and written information, much of which is legally required. Some information is not legally required to be offered, but affords some legal protection to the therapist. Other information provided is helpful in setting client expectations in order to improve client understanding and adherence to terms and conditions of the services provided by the therapist.

Information that assists the client in understanding the risks and rewards of their mental health services affords the client the ability to make “informed consent.” Traditionally, informed consent refers to a patient having adequate information to make a decision regarding medical care. This prevents a medical procedure from being considered battery.12 Clinicians routinely provide information regarding confidentiality. This can be considered an aspect of informed consent, in so far as the issues of confidentiality equate to risks and rewards that the client should knowingly choose when entering therapy. As this course will show, there are risks that confidentiality may be breached due to legal responsibilities placed upon the therapist, or breached illegally through an error or an intentional act. Legal and procedural measures to preserve confidentiality afford protection, but not certainty.

CAMFT and AAMFT codes of ethics, as well as the Health Information Privacy and Accountability Act (HIPAA), call for providing informed consent. HIPAA, as we shall see, goes into very specific detail as to how to accomplish this.

Privilege

Privilege: Not Exactly Confidentiality

It is easiest to understand privilege when one starts with the idea that confidentiality of medical information is a right that citizens hold. This right imposes upon therapists a duty to preserve the privacy of their clients. When another duty competes with the therapist’s duty to preserve client privacy, the therapist must assert that one duty is a more important obligation than the other.

For example, if an attorney subpoenas a clinical record, the therapist usually must assert that his or her duty to preserve client privacy is more important than the duty to provide the court with confidential client information. This is the assertion of privilege. In this case, the therapist must hold for the client the right to privacy. When the therapist asserts that his or her duty to preserve confidentiality is more important than the subpoena, then the therapist is asserting privilege. This can be thought of as one duty having a privilege over another.

Who Holds Privilege

As mentioned earlier, the clients “holds” a right to privacy. The client has the privilege to assert this right in court; in other words, the client holds the privilege. This privacy is a right that imposes obligations upon others such as psychotherapists. Thus, they also hold this privilege. A therapist who has received confidential communication from a client holds the privilege and has a duty to assert it when challenged to reveal the confidential information. Holders of privilege can include a psychological corporation, the client’s guardian when the client is a minor or mentally disabled, and the client’s personal representative. Privilege is durable and continues to exist in spite of a disclosure or the death of the patient.

Records

Psychotherapists are required to keep at least basic clinical records. Records are necessary for treatment planning, billing, case transfer, case management, compliance with court orders, and even the legal defense of the therapist. They may be very helpful in refreshing the memory of a busy therapist, or a therapist who has not seen a client for some time.

Patient Access to Records

Patients own their health care information without owning the physical files themselves. Patients have the right to review or get copies of their files.13 If the client requests a copy of his or her file, the therapist is required to provide one. The therapist may charge up to twenty-five cents per page copied. However, he or she cannot charge when the portion copied is used in an appeal regarding eligibility for a public benefit program. These programs are Medi-Cal, social security disability insurance benefits, and Supplemental Security Income/State Supplementary Program for the Aged, Blind and Disabled (SSI/SSP), unless a private attorney is covering the costs of the appeal.14

The patient must be allowed to view records during normal working hours within five days of providing a written request. A copy of the record must be provided or transmitted within fifteen days of a written request, except when it is for support of an appeal for a public benefit, for which the requirement is thirty days.

If the patient feels that the record is incomplete or inaccurate in any way, he or she may submit an addendum of not more that 250 words. The therapist must include it in the record and any full copies of the record. The therapist is not liable for anything the patient puts in the addendum.15

A therapist may limit a patient’s access to his or her files if the therapist believes that seeing the file would put the patient at a “…substantial risk of significant adverse or detrimental consequences…”16 Instead, the therapist may prepare a summary of the record for the patient. This summary must be provided within ten days. If the record is unusually large, or the patient has been released from an inpatient program within the last ten days, then the therapist has thirty days.17 

This action must be accompanied by two additional conditions. The therapist must attach, and include in the record, a note explaining the reason for denial of access. The therapist must also be willing to give another professional access to the record. This professional can be, “…a licensed physician and surgeon, licensed psychologist, licensed marriage and family therapist, or licensed clinical social worker, designated by request of the patient.”18 The therapist must inform the patient of these options, and make a note in the patient record as to the patient’s choice or response.

The law specifies what is to be included in the summary:
The summary shall contain for each injury, illness, or episode any information included in the record relative to the following:
   (1) Chief complaint or complaints including pertinent history.
   (2) Findings from consultations and referrals to other health care providers.
   (3) Diagnosis, where determined.
   (4) Treatment plan and regimen including medications prescribed.
   (5) Progress of the treatment.
   (6) Prognosis including significant continuing problems or conditions.
   (7) Pertinent reports of diagnostic procedures and tests and all discharge summaries.
   (8) Objective findings from the most recent physical examination, such as blood pressure, weight, and actual values from routine laboratory tests.19

The summary shall contain a list of all current medications prescribed, including dosage, and any sensitivities or allergies to medications recorded by the provider.

The therapist may charge for preparing the report, but only for the time required to prepare it, and with the understanding that the legislature’s intent is that such records be available at the lowest possible cost.20

Maintaining Records

California law requires that all medical records be maintained for at least seven years, and one year past the date that the client turns eighteen.21  Neither CAMFT or AAMFT specify record retention periods in their codes of ethics. (CAMFT Code of Ethical Standards, AAMFT Code of Ethics)

According to the California Health and Safety Code, electronic records must be maintained with adequate security and safety, “…by employing an offsite backup storage system, an image mechanism that is able to copy signature documents, and a mechanism to ensure that once a record is input, it is unalterable.”22 The provider must also, “…develop and implement policies and procedures to include safeguards for confidentiality and unauthorized access to electronically stored patient health records, authentication by electronic signature keys, and systems maintenance.”23 Once records are in electronic form, the original hard copies may be destroyed.24

The legislature’s intent is that,  “…all medical information transmitted during the delivery of health care via telemedicine…become part of the patient's medical record maintained by the licensed health care provider.”25

The physical and electronic security of records is an aspect of their maintenance. The section on HIPAA law has additional information on this. The tremendous capacity for storage and dissemination of personal information has created entirely new responsibilities for record maintenance and security. Breaches involving thousands of records have occurred as a result of theft and negligence affecting several government agencies and private businesses. This is among the factors that led to HIPAA. Therapists and case managers working at large agencies have security responsibilities that did not exist in the 1980’s and earlier.

Unprofessional Conduct and Penalties

California therapists may experience three legal consequences for violating legal professional standards such as confidentiality. Therapists may experience some form of sanction from the licensing board, which is the State of California Board of Behavioral Science (BBS), sometimes referred to as the grievance board. This can include requirements such as a period of supervised practice or actual loss of the license to practice. In some cases, a therapist who has lost a license because of unprofessional conduct can get it reinstated by complying with specific conditions required by the BBS. One such condition may be the payment of a penalty that corresponds to the cost of the enforcement action.26

If the conduct constitutes a sufficiently serious crime, the justice system may prosecute the therapist. If the client or client representative feels wronged, he or she may sue the therapist (file a  civil action, bring suit) for harm (a tort) of some kind. Violation of privacy as a result of mishandling the client’s confidential information is cause for such a law suit (is actionable).

HIPAA

The Health Information Portability and Accountability Act (HIPAA) is the first federal privacy standards act intended to protect patient’s medical records and other health information in the possession of health care providers, including health plans. Congress enacted HIPAA, also known as the Kennedy-Kassebaum Act, in 1996. It took effect in 2003. Developed by the Department of Health and Human Services (HHS), it took effect in 2003. Also known as the Privacy Rule, HIPAA provides patients with access to their medical records and gives them more control over their personal health information. The Act is intended to establish a nation-wide floor of privacy protections, meaning that states may maintain or establish more stringent laws without being invalidated by HIPAA.27 HIPAA also protects employees who change jobs and protects the rights of people with health insurance. It includes significant privacy, confidentiality, reporting and compliance requirements.28

HIPAA is also intended to make health insurance coverage more available. It does this through means such as improving the transmission of electronic records and providing improved privacy of health and medical information.

HIPPA rules apply to therapists who transmit records electronically in carrying out financial transactions or administrative activity such as claims submission. This includes Internet or email transmission, and the use of electronic media such as CD's. Faxing and electronic data storage are not included.23 The individuals and organizations to which HIPPA applies are referred to as “covered entities.” HHS provides a great deal of information, including answers to common questions at www.HHS.gov/ocr/hipaa.29 It is better known as a means of regulating corporations such as health plans, hospitals and pharmacies that previously were not as accountable for protecting patient confidentiality. However, the Reasons to Comply with HIPAA section below explains that therapists in solo private practice stand to benefit by adopting HIPAA compliance, particularly regarding informed consent and maintaining separate psychotherapy notes.

Protections for Patients

HIPAA provides protection of patient medical information in the following areas, according to HHS30
Access to Medical Records: This includes the ability to see and obtain copies of records and even request corrections. Patients generally should be able to see and obtain copies of their medical records and request corrections if they identify errors and mistakes.
Limits on Use of Personal Medical Information: While the Privacy Rule allows providers to provide patient medical information without a specific medical release beyond the one initially signed by the patient for specific clinical and administrative purposes, it also sets limits on how covered entities my use the information. For example, covered entities must use the minimum amount of information necessary for the permitted function, and must use it only in service of providing health care. may not be used for purposes not related to health care, and covered entities may use or share only the minimum amount of protected information needed for a particular purpose. This is referred to as the “minimum necessary” principle.31
Prohibition on Marketing. As stated above, patient information may not be used without permission for marketing purposes. The prohibition on marketing does not limit communicating with patients regarding treatment options such as disease-management programs that might be considered a form of marketing, were it not in service of the patient’s health care.
Stronger State Laws: As mentioned, the federal privacy standards do not interfere with state laws that provide additional or more stringent privacy protections for patients. However, the Act also does not prevent states from requiring certain types of disclosures pertaining to public health, such as reporting certain incidences of infections disease. It is important for therapists to know when their state laws and ethical guidelines are more stringent than HIPPA, and to adhere to the more stringent rules. For example, there are uses of private information for which HIPPA does not require a specific release, while state law does.
Confidential Communications: HIPPA requires covered entities to communicate with patients in a manner that does not jeopardize the security of patients’ medical information. This includes complying with reasonable requests by patients such as not leaving messages at the patient’s work number.
Complaints: The Act gives consumers the right to file formal complaints regarding violations of privacy. The HHS has an Office of Civil Rights (OCR) that is charged with enforcing HIPPA and investigating patient complaints. Covered entities are required to included information on filing complaints in the required notice of privacy practices. HHS makes information available on this from their web site at www.HHS.gov/ocr/hipaa and by phone, 866/627‑7748.

Guidelines for Psychotherapists

Reasons to Comply with HIPAA

Therapists are encouraged to comply with HIPAA because it involves rules that may be considered standard of care, and because the therapist may easily fall under HIPAA because of ways information is managed. For example, the therapist’s billing service may transmit information electronically. HIPAA information pertaining to confidentiality are summarized here. The rules are not very demanding. The fact that much of HIPAA is less stringent than California law has resulted in this section addressing it being fairly short.

The private practitioner is encouraged to pay special attention to two sections in particular. The first is on the Privacy Notice, because it provides guidance for improving informed consent, and for acquiring an authorization for release of information that is especially useful in the Information Age. The second is the section on Psychotherapy Notes. This section can help the practitioner respond efficiently and more securely to the need to transmit information without compromising the most private client information, yet ensure that key clinical and service information is transmitted.

Basics

HIPAA is respectful of state law when it comes to confidentiality and disclosure of health information, referred to in the law as private health information (PHI). As you would expect, it requires written authorization for all disclosures of PHI, but it exempts "treatment, payment or operations" (TPO), such as billing and training.

The law distinguishes between "use" and "disclosure" of PHI. Use refers to transfer of information within an organization that is a covered entity. Disclosure refers to release of information outside of the organization or the therapist's practice.

This material will only cover aspects of HIPAA that require special consideration on the part of the therapist. HIPAA is often less stringent than California laws, so it does not need to be covered fully here.

TPO Uses of PHI

Therapists do not need a separate authorization for "uses" of PHI (as you’ll recall, that is personal health information) as mentioned above. HIPAA lists the following as TPO (again, that is treatment, payment and operations) "uses".

Use by the originator of the psychotherapy notes for treatment

Use or disclosure by therapists for their own training programs in which students, trainees, or practitioners in mental health learn under supervision to practice or improve their skills in group, joint, family, or individual counseling

Use or disclosure by therapists to defend themselves in legal actions or other proceedings brought by their patients.32

Privacy Notice

Therapists are to provide their patients with a notice that describes the therapist's privacy practices by the first appointment. The therapist must make a good faith effort to get written acknowledgement from clients indicating that they have received this notice, and the notice must be posted in the therapist's office.

Release of Information Form

For specific authorizations to release information, that is, releases that are not covered by the initial TPO uses release, HIPAA has the following criteria for compliance:
Written in plain language
Written in 8 point typeface or larger
Separate from all other documents
Specifically describe health information to be used or disclosed
State the name or function of the person or organization authorized to make such a disclosure
State the date after which the provider can no longer disclose information
State the name or function of the person or organization authorized to receive the  information
State specific uses and limitations of the use of the information by the persons authorized to receive it
Advise patient of his or her right to receive a copy of the authorization
Inform client of his or her right to revoke authorization under California law.
Include a statement that the information used or disclosed may be subject to re-disclosure.

Psychotherapy Notes

One of the protections for the mental health information of clients afforded by HIPAA lies in HIPAA’s designation and use of psychotherapy notes. HIPAA protects psychotherapy notes from the blanket release that allows medical information to be used for administrative purposes. It requires that the notes be protected from view by anyone other than the therapist and anyone to whom the records are specifically authorized for release33 Its protections for psychotherapy notes include the provision that they be separate from the patient’s main record. This helps ensure, for example, that the psychotherapy notes will not be accessed by a clerk out of curiosity.

The definition of psychotherapy notes includes, “notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session.”34

However, in order for psychotherapy notes to have these HIPAA protections, they must not include information that is important to have in the main record, because the main record is used for TPO. As you’ll recall, TPO stands for treatment, payment and operations. In this case, treatment means the information that must be available for situations in which other clinicians must see the record. The information that must not be separate from the main record, that is, that must not be in psychotherapy notes, is, “session start and stop times, medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: diagnosis, functional status, the treatment plan, symptoms, prognosis and progress,” and they “must be maintained separately from the medical record.”35 Thus, the definition of psychotherapy notes as pertaining to the “contents of conversation” is a very limited definition because it is part of a design to both maintain a viable primary record, as well as prevent or limit distribution of the most private information.

Many therapists consider the requirement to maintain psychotherapy notes separate from the rest of the case record to be an administrative hassle. However, this habit makes it easy to deal with things like audits and releases of information to organizations or individuals that do not need to see the psychotherapy notes. It gives the therapist more discretion in cordoning off information that is especially important to protect. Larger organizations that deal with such issues regularly and must deal with a larger staff pool are the most likely of all providers to have detailed and secure protocols for adhering to HIPAA standards such as those pertaining to psychotherapy notes. However, an individual therapist in private practice can adhere to these requirements without much fanfare.

Record Maintenance

HIPAA requires that records be maintained for six or more years from their date of creation. This is trumped, however, by the more stringent California law requiring that all medical records be maintained for at least seven years, and one year past the age of majority. Clinical professional organizations may pose even longer durations.

Client Access

As with state law, HIPAA allows clients to make amendments to their records. However, HIPAA is relatively looser when it comes to client's rights, for example, by allowing the provider to disallow amendment on the basis that "the PHI is accurate and complete.” If denying the request, the therapist must provide a prompt denial in writing that includes the basis for the denial, the client's right to contest, a statement that the client can have the therapist include the copy of the request in the record and its disclosures, and instructions for filing a complaint with the Secretary of Human Services.

Limited Information to Law Enforcement

To better understand the meaning of “minimum disclosure” of PHI, we will look at the information HIPAA allows to be disclosed to law enforcement. Bear in mind, however, that California law is more restrictive than HIPAA. Thus, a court-order may be necessary for the therapist to release the information listed here. HIPAA allows disclosure of information to law enforcement for locating fugitives, material witnesses or missing persons. In keeping with its doctrine of minimal disclosure, HIPAA limits the information that can be released to the following items. As you can see, some of the items are more germane to medical treatment facilities such as hospitals than they are to a psychotherapist’s office.

A court order, warrant or written administrative request could require the therapist to provide additional information.36
By “administrative request” HIPAA is referring to,
…an administrative subpoena or investigative demand or other written request from a law enforcement official. Because an administrative request may be made without judicial involvement, the Rule requires all administrative requests to include or be accompanied by a written statement that the information requested is relevant and material, specific and limited in scope, and de-identified information cannot be used (45 CFR 164.512(f)(1)(ii)(C)).37

Security of Files

Files must be secure. The therapist must be the only person with access to the computer that holds the patient files and to backup files. Any hard copies (paper files) must be locked in a secure file cabinet.38

The California Confidential Medical Information Act (CMIA)

In 1981, prior to the federal HIPAA, California enacted the "Confidentiality of Medical Information Act" (Civil Code Section 56). The CMIA requires that medical information be kept confidential, and includes exceptions that, for the most part, are in harmony with other California and federal laws. An important aspect of the CMIA is its definition of "provider of health care," which includes organizations such as managed care corporations. The definition is so broad that it includes nearly every medical entity licensed in California. It also defines medical information broadly, to include a patient's history, condition and treatments. It states that any such information that can be connected with the patient (is "individually identifiable") is included. This law does not define covered entities in terms of electronic transactions, as it was created before large databases of patient medical information were widely regarded as a concern requiring legislation.

Disclosing Confidential Information

Authorized Release of Information

The client may consent to a release of confidential information for many reasons, the chief of these being the provision of information to another care provider, such as a psychiatrist or new psychotherapist. Other reasons include providing information that verifies compliance with the requirements of an outside entity such as the client’s probation officer or employer.

Under HIPAA, an organization that provides clinical services may allow staff access to client information in order to maintain records, supervise clinicians, do case management and other tasks. Similarly, an individual therapist may reveal information to a person or organization that provides administrative services such as billing. In all cases, the information must be limited to what is necessary to provide the service. The people who have access to that information must treat it as confidential medical information.

The therapist must consider the welfare of the client, even when the client has authorized or demanded a disclosure. If the therapist is convinced that the disclosure is not in the best interest of the client, then the therapist may need to refuse to cooperate with the disclosure and attempt to dissuade the client from making such a disclosure. Consider the example of a client who thinks that providing information to a physically abusive spouse will help the spouse develop more empathy. In such a case, the therapist would have to consider whether the disclosure might actually worsen the danger.

Insurers

Insurance companies, including managed care companies, have the responsibility to protect privacy. This includes having systems and policies in place to accomplish such protection. Clients are not always aware of what information will be sent to insurers, particularly where managed care policies include reviewing clinical information in order to determine whether to authorize additional treatment or a change in level of care. Informed consent dictates that therapists provide enough information about their relationship with the insurer that the client can be make informed choices regarding their confidentiality. For example, a client may not want certain diagnoses to become preexisting conditions affecting their insurability after a change in employment (and insurance policies) that could take place in the future. In some cases, clients may prefer to pay privately or limit the focus of therapy based on this information. In any case, the therapist should attempt to limit the information provided to only that which is necessary to conduct business with the insurance company, and only in so far as the release of information authorized by the client permits.39

Compulsory Mental Health Treatment

People are compelled by organizations such as courts or employers to seek mental health assessment and treatment for various reasons. A court may compel an individual who has been convicted for driving under the influence of alcohol or drugs to undergo a substance abuse and mental health assessment. The court may require a period of time during which the client must provide urine screens in order to test for evidence of current substance abuse. A person failing to comply with the court orders can suffer legal consequences that may include imprisonment.

Private entities such as employers may compel people as well. For example, many employers have policies that allow them to suspend the disciplinary process. This can prevent the employee from being fired so long as the employee cooperates with a mandatory referral process. This process can include a referral to the company employee assistance program (EAP), and can require compliance with the recommendations of that program. Ultimately, the employee must improve his or her functioning within a period of time that does not constitute a hardship for the employer.40

Employers are not required by law to include a mandatory referral process in their policies. Many employers, especially larger ones, have these policies in order to improve the retention of employees and improve performance. This reduces the cost of replacing or enduring employees with performance problems that are cause by mental health issues.

Employees are referred when it is suspected that problems with their performance may be caused by stress, emotional or personality problems, or a mental disorder. Behaviors that may trigger a referral to the EAP range from a pattern of conflicts with other employees to evidence of severe mental illness. EAP’s tend to employee licensed mental health clinicians such as LMFT’s.

Compulsory referrals to clinicians involve communication with the referring organization in order to verify participation and compliance. Since this information is confidential, the client must authorize the release of the information. If the client refuses to do so, or later withdraws the authorization, the client may be considered “out of compliance.” In that case, the referring organization may then resort to other policies such as continuing with an employee’s disciplinary process or firing the employee.41

Without a release of information, the clinician can only inform the referring organization that no information can be released. It is important for clinicians to make sure that the staff of referring organizations understands that this can occur.42 Employee assistance professionals work with employers to help develop company policies and provide staff training that addresses issues such as those of confidentiality in mandatory referrals. Clinicians such as employee assistance professionals may also consult with employers on mental health and interpersonal issues that may improve the ability of management staff to interact with employees, improve morale, and reduce legal liability.

This approach to confidentiality can even be used between parents and minor or adult children, when parents are funding treatment or providing other incentives for their child to receive mental health services.43

The Subpoena

The therapist must respond to a subpoena, because they have the force of law. Attorneys are officers of the court, and require information to fulfil their duty in cases. Subpoenas are generally issued during the discovery phase in preparing for trial. Attorneys generally cast a wide net in seeking information; not knowing in advance what information will be of use.44
There are several ways for the therapist to uphold his or her responsibility to protect client privacy. It is very important to plan the response to a subpoena with the help of an attorney, because there are too many legal variables. You may need to attempt to have the subpoena quashed (usually on a technical ground), modified, or even attempt to negotiate with the party issuing the subpoena.45

Other Requests for Information or Confidentiality

Therapists may experience requests for information about clients or people believed to be a client from outside individuals or organizations. These may include family members, attorneys, journalists, law enforcement officers, neighbors or other parties.

Usually, the therapist must assert privilege. Exceptions to this are covered elsewhere. A straightforward way for the therapist to assert privilege is to state that he or she can neither confirm nor deny that the individual in question is a client, and cannot divulge confidential information regarding anyone who is a client.

This is true even if there is public knowledge or the person or organization knows of the treatment. It is true even though the client is speaking publicly about the treatment. It is even true when there is an exception to confidentiality, such as child abuse, because exceptions to confidentiality only allow the information to go to specified people or agencies.

An individual who contacts the therapist about someone he or she believes to be a client may request that the conversation with you be kept from the client. The therapist cannot make such a commitment because it may not be in the best interest of the client.

Unsolicited Information about the Client

An individual may contact the therapist with information about the client. The therapist may consider it in the best interests of the client to accept the information, but should contact the client promptly to disclose that this activity has taken place.

Exceptions to Confidentiality

Legal Limits

Confidentiality has its limits, and California law spells out several exceptions to client confidentiality. They are threat of harm to self or others, certain lawsuits, a court order, detention of a mentally disordered person for evaluation, and reasonable suspicion of abuse of a minor or dependent adult.

Threat of Harm to Self or Others

There are various ways a person can become a threat of harm to self or others. Risk of suicide and planning to physically harm someone are examples. The therapist must respond appropriately to these risks, and the level of risk is a factor in choosing a response. When the threat of suicide or violent behavior is significant, client should be hospitalized for stabilization and further evaluation, and the therapist should provide to the hospital all information necessary for this. The therapist should encourage the client to participate in hospitalization voluntarily, as a therapist would for any change of treatment or level of care. The therapist should explain the nature of the process, the rights of the client, the ways the therapist will support the process, and the client’s ability to stay with the current therapist upon returning to the community. This may help elicit cooperation from the client.

Involuntary Commitment

When the client is uncooperative, the therapist must notify the police to initiate evaluation by the resource designated by the county for this purpose. This can result in temporary hospitalization for further evaluation. There is more on this process in the section on Detention of a Mentally Disordered Person for Evaluation, below.

The telephone call should be made immediately, and if the client has left or broken contact, the therapist should provide the last known and most likely locations of the client. If the status of the client is uncertain and the therapist cannot reach the client, the therapist can ask that the police perform a “welfare check” by going to the client’s home to determine if additional action is necessary. This can be upsetting to a client, but it is better than allowing risk of harm to persist.

When the client is in a residential setting such as a hospital, it is important that the therapist encourage the providers there to get a release of information allowing them to communicate with the therapist. This way, the therapist may participate in the return of the client to the community and support the treatment plan that is established prior to release.

Tarasoff and Dangerous Patients

When a client (or a family member of the client) discloses that the client poses a threat of grave bodily injury to an identifiable victim, the therapist must notify both the intended victim and the police immediately. A therapist was successfully sued for failing to warn such a victim, who was killed by the client. Law has been added to codify this, but only by protecting the therapist from liability for making the disclosure, not through a mandate to disclose:

There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist as defined in Section 1010 of the Evidence Code in failing to warn of and protect from a patient’s threatened violent behavior or failing to predict and warn of and protect from a patient’s violent behavior except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims46

A California appeals court ruling in 2004 extended the interpretation of this law to include information that comes from the client’s immediate family.47

Although there is a duty to warn, the therapist is not expected to attempt to prevent violent acts that cannot reasonably be predicted. It is well known that mental health professionals have a very limited ability to foresee violence. In the case against a psychiatrist who failed to prevent the attempted assassination of president Ronald Reagan by a mentally ill man, a Colorado District Court wrote, “It is this requirement of foreseeability which has led numerous courts to conclude that a therapist or others cannot be held liable for injuries inflicted upon third persons absent specific threats to a readily identifiable victim.”48

The court ruled in favor of the psychiatrist (defendant) even though it accepted the notion that the psychiatrist had provided substandard care.49

Conscientiously documenting sound clinical reasoning can reduce liability. Even if the therapist did not act to prevent violence that was foreseeable, well-reasoned clinical judgement may result in a finding for the therapist. Though the judgement was regrettable in hindsight, it matters if it was supportable when it took place.50 A failure to demonstrate sound clinical judgement heightens liability. Courts have found against clinicians that have not adequately assessed the patient. That happened to a psychiatrist who failed to review existing records of a patient who later became dangerous.51

The very nature of a diagnosis may afford some protection in the duty to warn or hospitalize. For example, in finding in favor of the VA in such a case, the court stated, “It is impossible to predict future behavior in paranoid schizophrenics because their behavior may completely change in a matter of minutes”52

The issue of reporting, hospitalizing or warning can become murkier, as when a person has a substance use disorder as well as a safety-sensitive position, such as a physician or airline pilot. Legal consultation is important in these cases because they may be very nuanced.53 A therapist who reported an alcoholic to the authorities on the basis that the individual admitted to repeatedly driving while intoxicated was successfully sued by the client for breach of confidentiality.54

From the point of view of society, the challenge of such cases results from the inherent tension between the duty to protect public safety, and the duty to preserve public utilization of mental health services. Too much disclosure will erode public trust in confidentiality, alienating people from mental health services. Too little disclosure will result in increased harm to citizens.55

Criminal Activity

Criminal activity does not, in itself, pose a mandated reporting condition. The value of psychotherapy to society would be substantially impaired if therapists were required to report all criminal activity, because this would pose a major barrier to seeking treatment for many people. The therapist must consider the elements already discussed, such as Tarasoff conditions (threat of harm to an identified person) and the definition of abuse.

Detention of a Mentally Disordered Person for Evaluation

Persons who become so disabled as to be unable to engage in adequate self-care are considered gravely disabled. These clients may be hospitalized involuntarily (held) for seventy-two hours (or longer in some cases) for assessment under Welfare and Institutions Code 5150. If it is determined that the client continues to be gravely disabled, the client may be held for an additional fourteen days. Under some circumstances, such as the client making a threat of suicide, the period can be extended to an additional fourteen days. If, at the end of that period, the client is determined to pose immanent threat of harm, the client may be detained for another ninety days.

The therapist who believes that a client is gravely disabled can initiate a hold (also called a 5150). This is accomplished by contacting the police, the Psychiatric Emergency Team (PET) of a facility that the county has certified to hold a patient, or other professions as designated by the county such as a Mobile Crisis Unit. This act involves releasing confidential information about the client, but must be limited to the information necessary to complete the hold and ensure effective services. This should include the contact information for other treatment providers involved in the client’s care. For example, it is important that the hospital communicate the psychiatrist involved, so that medication is not inappropriately stopped, changed, or inadvertently combined.

In order for the hold to take place, the designated professionals must make the determination that the individual is gravely disabled. Although the therapist, the neighbors, or the person’s family may feel that he or she is gravely disabled, the professionals making the determination may not agree that a hold can be done according to the specific requirements of the law. In that case, the individual is released unless he or she is willing to receive residential assessment and treatment services voluntarily. Even then, there may not be funding for that individual to receive the services if the person’s symptoms do not rise to a fundable level, or the person cannot afford to pay privately.

Lawsuits

A lawsuit may result in a subpoena for client information. A subpoena is not a court order, and the therapist is obligated to preserve client confidentiality unless there is an exception or an appropriate and authorized release of information. The therapist can respond to such a subpoena by stating that he or she can neither confirm nor deny that any given individual is a client, and cannot release information from a client record without consent or a court order.

Court Ordered Disclosures

When ordered by the court to disclose information about a client who will not authorize the release, the therapist is not obligated to refuse to cooperate with the court.56 Therapists are not expected to endure penalties for contempt of court, and it is to be presumed that the court has determined that the needs of society in such a case outweigh the values of confidentiality to the client and to society that are described in the introduction to this material.

2.2 Marriage and family therapists do not disclose client confidences except by written authorization or waiver, or where mandated or permitted by law.

Reasonable Suspicion of Abuse or Neglect

Reporting

The mandated reporter does not have to produce conclusive proof of abuse or neglect; rather, he or she must report “reasonable suspicion” of abuse when functioning within his or her professional capacity. The report must immediately be made to the police or to the Department of Social Services. It must also be provided in writing within thirty-six hours for children, or within two working days for adults.61 The written report can sent by mail, fax, or electronic transmission.

The therapist need not be concerned with whether or not an act is legal or illegal by becoming occupied with the definition of statutory rape or other legal concepts. Rather, he or she should know the mandatory reporting requirements specified by law and be prepared to review the circumstances in question with an attorney, the appropriate authorities, or both. Contacting authorities such as a child welfare agency does not constitute reporting in itself. Agency workers can help determine if a report is required.

The Welfare and Institutions Code only mandates that therapists disclose information with they encounter it in the course of professional activity, and only when there is present danger. The therapist may determine that there is present danger, even though a client disclosed abuse from the past.62 For example, if an adult client reports sexual abuse by an individual who is currently in a household with children, the children may be at risk for abuse.

When the therapist is in doubt as to whether he or she should make a report of suspected neglect or abuse, the therapist should consult with the appropriate welfare department. The staff of child or adult protective services can help the therapist determine whether to make a report. This also helps to protect the therapist from liability. The therapist should make a case note indicating who the call was with, their position in the agency, and clearly explaining the result of the call and the basis for the decision about reporting. The case managers of these departments and their supervisors and legal counsel make decisions about abuse and neglect reporting and responding continually, and a very familiar with the laws and resources involved. In the rare case that therapist is still uncertain after this, he or she may need to consult with an appropriate attorney.63

If the therapist is uncertain who to contact about a decision to report suspected neglect or abuse, a call to the welfare department or police department will get the therapist to the correct person. Generally, therapists and agency workers prefer to contact the proper office of the welfare department because that agency will assist in immediately planning a course of action that addresses clinical case management issues. The case manager will take care of contacting law enforcement. However, if the situation may involve immanent danger, it is best to contact law enforcement first.64

If suspected or alleged adult abuse has occurred in a long-term care facility, except a state mental health hospital or a state developmental center, the report is to be made to the local ombudsperson or the local law enforcement agency. If it took place in a state mental hospital or a state developmental center, the report is to be made to designated investigators of the State Department of Mental Health or the State Department of Developmental Services, or to the local law enforcement agency.

The therapist is not required to report a claim of abuse or neglect if the person reporting has a mental illness or dementia, there is no corroborating evidence or information, and the clinician reasonably believes that the abuse did not occur. 65
Failing to report child, elder or dependent adult abuse or neglect is punishable by up to six months in the county jail, by a fine of up to one thousand dollars ($1,000), or by both a fine and imprisonment. The consequences are more serious if the therapist fails to report and someone is killed or seriously injured. This also applies to a supervisor or other person who interferes with reporting. The punishment is up to one year in a county jail, a fine of up to $5,000, or both.66 Supervisors and other authorities may not impede reporting, but there may be administrative policies affecting how the report is managed so long as they do not conflict with the law. Being a member of the clergy does not free a therapist of any reporting requirements. Nor does a lack of training in identification and reporting of child abuse.67

If more than one mandated reporter becomes aware of the suspected or alleged abuse, only one of them needs to make the report. However, if the designated reporter fails to make the report, another of the parties must make the report within the specified time frames. Since the first report needs to be made right away, the therapist cannot allow for any delay.

CANRA

Much of the law pertaining to abuse and neglect of children is known as The California Child Abuse and Neglect Reporting Act (CANRA) and is comprised of Penal Code sections 11164-11174.4.68
The purpose of the Act is, “to protect children from abuse and neglect.”69  Its intention includes protecting the child’s welfare during investigations, stating, “In any investigation of suspected child abuse or neglect, all persons participating in the investigation of the case shall consider the needs of the child victim and shall do whatever is necessary to prevent psychological harm to the child victim.”70

Definitions: Penal Code

Child molestation is covered in the law regarding lewd and lascivious acts. It defines them as intentionally touching any part of a child’s body, “with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of that person or the child .”71
When charges are brought under this law, they are for severely exploitive incidences, such as the molestation of young children.72
Lewd and lascivious are vague and quaint-sounding terms, but the law clearly defines them as follows:73

California law defines sexual abuse as “sexual assault” or “sexual exploitation .”74
The California Penal Code defines sexual assault:
As used in this article, "sexual abuse" means sexual assault or sexual exploitation as defined by the following:
 (a) "Sexual assault" means conduct in violation of one or more of the following sections: Section 261 (rape), subdivision (d) of Section 261.5 (statutory rape), 264.1 (rape in concert), 285 (incest), 286 (sodomy), subdivision (a) or (b), or paragraph (1) of subdivision (c) of Section 288 (lewd or lascivious acts upon a child), 288a (oral copulation), 289 (sexual penetration), or 647.6 (child molestation).
 (b) Conduct described as "sexual assault" includes, but is not limited to, all of the following:
 (1) Any penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is the emission of semen.
 (2) Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person.
 (3) Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, except that, it does not include acts performed for a valid medical purpose.
 (4) The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.
 (5) The intentional masturbation of the perpetrator's genitals in the presence of a child.
The California Penal Code also defines sexual exploitation:
(c) "Sexual exploitation" refers to any of the following:
 (1) Conduct involving matter depicting a minor engaged in obscene acts in violation of Section 311.2 (preparing, selling, or distributing obscene matter) or subdivision (a) of Section 311.4 (employment of minor to perform obscene acts).
 (2) Any person who knowingly promotes, aids, or assists, employs, uses, persuades, induces, or coerces a child, or any person responsible for a child's welfare, who knowingly permits or encourages a child to engage in, or assist others to engage in, prostitution or a live performance involving obscene sexual conduct, or to either pose or model alone or with others for purposes of preparing a film, photograph, negative, slide, drawing, painting, or other pictorial depiction, involving obscene sexual conduct. For the purpose of this section, "person responsible for a child's welfare" means a parent, guardian, foster parent, or a licensed administrator or employee of a public or private residential home, residential school, or other residential institution.
 (3) Any person who depicts a child in, or who knowingly develops, duplicates, prints, or exchanges, any film, photograph, video tape, negative, or slide in which a child is engaged in an act of obscene sexual conduct, except for those activities by law enforcement and prosecution agencies and other persons described in subdivisions (c) and (e) of Section 311.3.

Definitions: Welfare and Institutions Code

The California Welfare and Institutions Code lists the types of abuse that are to be reported:
In respect to minors, a psychotherapist is mandated to report non-accidental injury inflicted by others; sexual abuse; unjustifiable mental suffering (as in a young child witnessing domestic violence); neglect; cruelty; statutory rape (minor under 16 and other 21 or older, even if consensual); lewd and lascivious conduct (minor under 16 and other 10 years older, even if consensual); consensual sexual contact between minors (where one is 14 years of age and the other is under 14 years of age).75

The code also addresses abuse of dependent adults and elders:
“In respect to elderly or dependent adults, a psychotherapist is mandated to report physical abuse, including sexual assault; misuse of physical or chemical restraint; neglect; fiduciary abuse; neglect; and isolation.”76
Bear in mind that many of these terms are defined in the Penal Code sections referred to in this training.

Emotional Abuse

The therapist is not required to report emotional abuse, but the law protects the clinician from liability if he or she reports it.77 Emotional abuse is a sufficiently gray area, that it is left to the clinical judgement of the therapist as to whether it is reportable. It may appear confusing that, despite the optional nature of emotional abuse reporting, the law requires that the therapist report “unjustifiable mental suffering.” This language helps to draw a line between a judgment call about the words a parent uses and a circumstance that clearly should not be tolerated, such as “a young child witnessing domestic violence.”

The law states that certain evidence can give weight to, or at least help direct, concerns about emotional abuse by pointing out what constitutes evidence of such abuse, stating that, “Any mandated reporter who has knowledge of or who reasonably suspects that a child is suffering serious emotional damage or is at a substantial risk of suffering serious emotional damage, evidenced by states of being or behavior, including, but not limited to, severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, may make a report to an agency specified in Section 11165.9.”78

Note that emotional abuse is not the same as mental suffering, which is reportable and pertains to more severe exposure to things such as traumatizing experiences. Although there may be debate as to where the line sits between mental abuse and mental suffering, the therapist is protected from liability when reporting either one, as mentioned earlier.

Sex with Former Therapist

If a therapist learns of sex between an adult client and a former therapist, the therapist is not permitted to report this. It is protected, private information. However, the therapist is required to give the patient the brochure entitled, "Professional Therapy Never Includes Sex" by the California Department of Consumer Affairs, and to discuss the brochure with the patient.79

Psychotherapist sex with a client is illegal during therapy, within two years after the termination of therapy, when therapy is terminated prematurely in order to have sex after termination, and by means of therapeutic deception (“…a representation by a psychotherapist that sexual contact with the psychotherapist is consistent with or part of the patient's or former patient's treatment.”)80

Drug Abuse and Dependence

Around the time of birth, substance abuse and even a positive toxicology screen showing current substance abuse by a parent are not mandatory reporting conditions by themselves. However, the Health and Safety code directs hospitals to assess the needs of mother and child, should a screen that is positive for drugs occur. A decision to report child neglect hinges on the mother’s ability to care for the child, and drug use is only one facet of the decision.81

SIDS

Sudden Infant Death Syndrome (SIDS) is not, in itself, a reason to suspect abuse. There would have to be specific reasons to suspect the death was caused by abuse or neglect.82

SIDS is a known medical occurrence. The risk can be reduced though various measures, such as having the child sleep on its back, but failure to take those measures cannot be considered a direct cause of SIDS for which anyone should be held responsible. The identity of the person making a mandated report is protected; it can only be released to specific governmental agencies.83

Special Issues

Collecting Fees or being Sued

If the therapist finds it necessary to sue a client in order to collect fees, the therapist is allowed to disclose the information necessary to conduct the suit.84 This information typically includes dates and charges for sessions and the fact that the services rendered were psychotherapy or other mental health services. The therapist would not disclose any diagnostic or other clinical information.

The therapist is cautioned that financial issues between therapist and client greatly increase the odds of a complaint to the board, or of a law suit.85 Therefore, when a therapist considers suing a client, he or she should seriously evaluate the advisability of this action. For example, how confident is the therapist that he or she would mount a fully effective defense, and would the risk be worth pursuing the funds from the client? Despite these warnings, such suits have taken place without incident.86

If a patient sues a therapist regarding treatment, the therapist is allowed to use clinical records as evidence in self-defense.87

Contacting Clients via Mail, Phone, Email, and Other Methods

Care must be taken to protect client confidentiality from potential breaches that may occur when using voicemail and other methods to contact the client. It is wise to review with a new client what methods of contacting the client are safe and acceptable. For example, a client who fears domestic violence would not want the therapist’s phone number to show on caller ID at home. Generally, therapists have their number show as “Private Caller” when they call. Some clients will not want messages left at certain locations. Some clients will be uncomfortable with the risk that personal information might be read or redistributed from an email message, as email generally goes through several computers called servers on its way to the recipient.

Therapists attach boilerplate text to email and faxes that warn an unintended recipient to ignore the message. The following is an example of such text used for email messages:
This e-mail is intended only to be read or used by the addressee. It is confidential and may contain legally privileged information. If you are not the addressee indicated in this message, you may not copy or deliver this message to anyone, and you should destroy this message and kindly notify the sender by reply e-mail. Confidentiality and legal privilege are not waived or lost because of mistaken delivery to you.

The following is an example of boilerplate text for a fax:
The information contained in this facsimile message is privileged and confidential information intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, or copy of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone and return the original message to us at the address above via the U.S. Postal Service. We thank you.

Death of patient

The right to confidentiality continues after death, but there are limits to confidentiality in this case as well. The therapist should report to the authorities any suspicion that the death was the result of a crime. The therapist should cooperate with information requests by the coroner.88

Couples, Families, and Groups

With couples, families and groups, the therapist has more than one client at a time, and some therapists think of the collective as their client. For example, the welfare of the family as a whole is elevated to the status of the welfare of the client. In any case, the therapist holds privilege for each individual. At times, this responsibility can require judgement on the part of the therapist when there is conflict between the desires and rights of the individuals involved. It is important to discuss confidentiality issues at the outset of treatment.

Couples

The therapist must preserve the confidentiality of both members of a couple. This can be difficult at times. When starting treatment with a couple, it is wise to broach the subject of secrets and gain agreement on a means of handling this issue.89 Generally, the couple should agree that the therapist will not be expected to hold secrets.90 Similarly, should the therapist see either member individually for some reason, the therapist may at times find that it is clinically indicated to share some elements of those individual sessions in service of the couples therapy. When the therapist feels that a disclosure should be made, it is generally best to give the client the opportunity to make the disclosure. Much grief can be prevented by not only clearly articulating such policies from the beginning, but including a signing of written policies.

However, since each individual has the right to privacy, there are cases in which a member of a couple may disclose information to the therapist that that client is unwilling to reveal to the other member of the couple. If the information would have an impact on the other member of the couple and is inappropriate to conceal, the therapist can no longer work with the clients as a couple.91 Typical secrets include infidelity or the client not wanting the partner to know that he or she has disclosed abuse on the part of the partner. Such disclosures can take place during a telephone call or an individual session.
When this occurs, the therapist typically notifies the partner who did not confide that therapy must be transferred to another provider. The therapist may continue to work with the partner who confided the secret, or may refer both partners to another provider. This can appear unfair to the partner who is being transferred, but the therapist cannot reveal any further information because the client who confided the secret has withdrawn consent to release information to the partner.92

Any client can terminate any agreement to release information at any time, and can do so verbally or in writing. This is true even if the release of information does not exist as a signed document, and even if the couple agreed on how information would be shared. The therapist immediately must begin complying with the new directive to protect confidentiality.93

If the therapist wishes to refer a partner to another therapist, but the partner is unstable; the therapist must consider the safety of the client in determining whether or how to proceed with a transfer of care. Legal advice should be sought when there is any uncertainty.

The circumstance may arise in which it is necessary to release information about one member of the couple where the other member will not or has not authorized release of information. In this case, information must exclude the identity and implications regarding the identity of the partner, unless there is an exception to the partner’s confidentiality as might occur in a case of child abuse.94

However, if a member of the couple requests possession of a copy of the record, this is another matter. The therapist would only release this when both members authorize the release95, and then only when both members can tolerate reading its contents, as with record releases to individual clients. It would not be realistic to expect a therapist to take the time or to succeed at redacting enough information to preserve the confidentiality of one member of a couple, where the record is of couples therapy.96

When initiating therapy, it may help to prevent misunderstandings by introducing the couple to the idea that the couple is the client, in the sense that the couple is primarily working with the therapist on their relationship. 97

Families

Most of the relevant confidentiality issues pertaining to families are discussed in the sections on minors, couples, and groups.
When a family member poses a risk to other family members, the therapist must disclose to the authorities the make up of the family. This is necessary in order for the authorities to assess risk to the family members and to intervene as safely as possible.98 For example, an abusive sibling may pose a risk to several siblings, even if only one is known to have been abused.

Groups

Members of therapy groups do not have the statutory obligation to preserve confidentiality that therapists do. However, the members should be expected to preserve this confidentiality, and this is to be stressed to group members from the beginning.99 This has the clinical value of promoting disclosure within the group, and this value can be explained to the group members.

Group members should also understand the limits of confidentiality, and the additional risk that a member could disclose their personal information. Although this may affect the participation of some group members, it is a matter of informed consent that the members understand the risks and benefits of group therapy, including those related to confidentiality.

Minors

There are many aspects to the issues of confidentiality and consent to treatment when children receive mental health care, and the legal issues are not always clear-cut. Minors have a great deal of protection for privacy, as discussed below. At the same time, the law requires therapists to involve parents in minors mental health care, so long as it is appropriate.100 The reader should bear this in mind while covering the following material. Judgment is required in weighing the obligation to involve the family against issues of privacy.101 Generally, clinical judgment and the law are not at odds regarding the confidentiality of minors’ medical records.

Privilege and Common Practices

According to the law, minors hold privilege.102 This does not mean, however, that children always decide on all releases of information. Courts generally recognize parents as having the right to wave the privilege for children. Exceptions to this include treatment without parental consent and circumstances in which parental access to information or decision making may pose a threat to the child’s welfare. The court ultimately holds privilege, and is to make decisions regarding privilege based on the child’s welfare.103 Legal guardians, legal counsel in Dependency Court, and the court itself, where the child is a ward of the court, are holders of the privilege if they are involved. If the child is old enough or mature enough, the minor may go against his or her attorney’s advice regarding privilege, and the attorney must get authorization from the child in order to release information.104

Emancipated minors are treated as adults regarding confidentiality and privilege, and may be treated without parental permission. Where the child is of sufficient age and maturity, the child will generally hold privilege. Where the child has an attorney, the attorney cannot wave a child’s privilege without his or her consent, but a child can maintain or wave his or her privilege against the attorney’s advice.105

In many treatment situations, all of this boils down to the common-sense practice of getting parental permission to release information for clinically sound purposes. When the child is being seen individually, the therapist should discuss the nature and limits of confidentiality with the child and parents. Generally, the child will have a good deal of privacy, but the therapist will disclose to the parents the child’s overall progress in therapy and specific concerns about his or her welfare, such as dangerous contacts, sex, and drugs.

The therapist can gain authorization to treat a child from just one of the parents in an intact marriage if the parent indicates that they agree about the child receiving therapy.

Certain legal issues and controversies can pose risks and be difficult to judge. These have to do with custody, disagreements between parents, disagreements between parent and child, and danger to the child’s welfare caused by parental involvement. It is especially where there is acrimony that the therapist must beware, so that he or she and the child are not used as weapons by a bitter parent. Even seasoned therapists should get legal counsel if there is any uncertainty or controversy regarding confidentiality, custody, or the child’s legal ability to give consent to treatment.

Withdrawal of Consent by the Minor

The law states that therapists may not share records regarding mental health care of a minor with the minor’s parents or legal guardians without the minor’s consent. This applies when the minor has consented to the mental health care and there are no exceptions.106

A child may reveal drug use, affiliation with dangerous people or other serious circumstances to a therapist. When a child wants disturbing information kept confidential, the child is no longer honoring the agreement made with the therapist and parents to allow the therapist to share such critical information with the parents. Now the therapist must determine whether he or she can protect the child’s desire for privacy. Must the information be disclosed in order to protect the child’s welfare?

If the confidentiality must be honored, the therapist typically informs the parents that he or she can no longer provide certain information about the child that may be relevant to their earlier agreement. When this occurs, the parents may withdraw funding for therapy. In that case, the therapist must consider the issue of client abandonment. The therapist must attempt to provide or arrange continuity of care based on the assessment of the child’s needs. This may require referring the child to a community agency.107

In addition to the general laws on confidentiality for minors, federal and California law refer to specific services and situations in which, barring an exception to confidentiality, the therapist or health care provider may not inform a parent or guardian without a minor’s permission. In this regard, federal law affects services funded in whole or in part by Title X. For these areas, federal and state law are fairly similar. These include reportable infectious, contagious, or communicable diseases (California), sexually transmitted diseases (federal and California), family planning and contraception services and status (federal), prevention or treatment of a minor’s pregnancy (California), HIV/AIDS services and status (federal and California), and rape treatment, so long as  the minor is not under twelve and the provider does not reasonably suspect the parent or guardian to have committed the rape. (California). This law stipulates that the provider document attempts to contact the parents or guardians regarding the rape.108

A provider cannot require a minor to waive confidentiality as a condition of receiving treatment. Such an act would be coercive, especially since the conditions under which confidentiality is excepted are specified in the law. However, the law does not prevent insurers from requiring treatment information in order to fund treatment. Cal . Civil Code § 56 .37 (In Gudement)

Pregnancy of a Minor

The pregnancy of a minor client, coupled with an invocation of privacy, is an example situation that may involve several laws and clinical considerations. By itself, pregnancy is not necessarily a sign of abuse even though it is a minor who is pregnant.109 It depends on the ages of the client and the individual or individuals with whom she had sex. It does not necessarily show that there is threat of harm to self or others. It does not necessarily create liability for the therapist if he or she honors client confidentiality, even though there are physical and emotional risks involved in decisions pertaining to the pregnancy, such as that of abortion.110 Another question is whether the parents would play a constructive role if informed. This can be a good example of a situation with multiple laws and clinical variables in play, and where it may be important to get legal advice.

Custody

The court will determine who is the custodial parent at the time of a divorce, and the court can change this any time it is necessary to do so. Often, only one parent will have custody. This is called sole legal custody. The sole legal custodian has the authority to make decisions regarding the welfare of the child. Generally the therapist must at least gain consent of the custodial parent or parents for treatment and release of information for children.
When the therapist does not have access to both parents, the therapist may wish to review the court order to make sure that treatment and any releases of information will not intrude upon the rights of the other parent. Sometimes the court order will specify the rights of the parents regarding the child’s health care decisions.111
If the court order is vague and the therapist is not on solid ground, it is important to prevent disruption of therapy that can occur in a legal battle, and to reduce vulnerability on the part of the therapist to a complaint. In such a case, the therapist may insist that both parents agree before treatment will commence. In the absence of that agreement, the therapist may decide to refuse to treat until the parent gets a court order specifically addressing the issue. It may be adequate to ask that the attorney for the parent requesting treatment of the child provide a letter indicating that the parent is compliant with existing court orders.112
It is important that the therapist not be manipulated or intimidated by a parent who may have misunderstandings about these issues and who may demand concessions from the therapist that are not in the best interest of the child and are not legally defensible. The therapist must realize that a litigious party may be quick to complain about or sue a therapist who makes an error such as treating a child without the custodial parent’s consent.
Even when there has been agreement between parents regarding the treatment of their child and treatment has begun, one parent may later communicate to the therapist that he or she is withdrawing or revoking their authorization to treat the child. This may occur despite the fact that the other parent and the child want treatment to continue, and that it is in the best interest of the child.
In this situation, the welfare of the child generally dictates that the therapist take the same position regarding termination of treatment as he or she did regarding initiation of treatment. That is, that both parents must consent to the termination of treatment. In other words, the therapist will not stop the child’s treatment on the sole basis that only one of the parents has demanded this. This rationale is strongest when the court order specifies that both parents must consent to treatment.113
Also, by continuing treatment, the therapist is not vulnerable to a charge of patient abandonment or improper termination. Where the child is able to legally consent to his or her own treatment, the therapist can be more confident about continuing.
The parent who requests termination may reconsider their request when this is explained, as the parent may at least have to agree that interfering with their child’s mental health treatment may not be viewed favorably by the court and may affect it’s decisions regarding issues such as custody or visitation. The therapist should get legal advice when responding to this kind of situation.114
Parents generally have the right to access their child’s mental health records, and the non-custodial parent cannot be denied access to these records simply on the grounds that that parent does not have custody. However, if access to records poses a threat to the welfare of the child or there is a court order limiting or denying access, then the therapist cannot grant access. For example, a court wrote that when a parent, “…is accused of child molest, and the child is in therapy, presumably to deal with the emotional aftermath of the alleged molest, the accused parent should not be entitled to access to the communications made by the child to the therapist.” The court provided the rationale that this could cause, “…substantial emotional harm…”115

Early Age of Consent

There are circumstances in which a minor may consent to outpatient mental health treatment without parental permission as early as twelve years of age, and without being emancipated. This is so when the minor would present a danger of serious physical or mental harm to self or others without the mental health treatment or counseling, or if the minor is the alleged victim of incest or child abuse. However, the minor must be assessed as being sufficiently mature to participate intelligently in outpatient treatment.116
A minor legally able to consent to treatment also has the right to inspect his or her records.117

Exceptions to Confidentiality

The section on exceptions to confidentiality provides details on mandatory disclosure of situations such as child abuse and neglect.

Deceased Clients

Privilege survives after the death of a client or ex-client. At that point, the individual’s legal representative holds privilege.118 The therapist should, however, contact the authorities if the therapist suspects foul play, and should cooperate with requests by the coroner or police.

Insurance

In the course of getting health insurance, people sign forms that include authorization of release of information necessary for the insurer to conduct their business. The therapist will also get authorization to release information to the insurance company from the client. This information includes a diagnosis and dates and types of treatment. Managed care companies that perform functions such as provider network and utilization management for the insurer may require additional clinical information in order to authorize additional care.119
If the client refuses or terminates the release of information, then the client is not in compliance with their contract with the insurance company. In this case, the client is responsible for paying the therapist for services, not the insurance company. Clients can be quite unclear about this kind of distinction, and it may be helpful to explain the responsibility of the client for payment, as well as include this in the policies form that the therapist asks clients to sign.120

HIV/AIDS

A client with HIV/AIDS does not typically pose a serious and immanent threat of violence to an identified individual in such a manner that the therapist would be mandated to report it as a threat.121 California law specifically states that HIV/AIDS status is confidential medical information.122
An important point here is that a threat to the confidentiality of individuals positive for HIV, while it may protect some sexual partners, it would also pose a threat to public health by discouraging people from disclosing their status and receiving treatment.123
This in no way should discourage a therapist from encouraging a client to deal openly with communicable disease status with sexual partners. Also, since there are many legal variables in play, the therapist may need legal consultation as to whether a threat posed by a communicable disease poses a duty to report or warn. 

Telemedicine

According to the BBS, marriage and family therapists are required to fulfill the same responsibilities regarding confidentiality when practicing via telemedicine as they are in any other setting.124
Providing treatment through means such as the Internet or telephone is referred to as telemedicine, although California law indicates that a telephone conversation does not constitute telemedicine.125 It also states that when telemedicine does not include the patient, the section quoted from here (which is primarily concerned with informed consent) does not apply, except for the clause that all confidentiality rules apply126, and except in an emergency where the patient is unable to provide informed consent and the patient’s representative cannot be available in a timely manner.127
The Business and Professions Code defines telemedicine as:
For the purposes of this section, "telemedicine" means the practice of health care delivery, diagnosis, consultation, treatment, transfer of medical data, and education using interactive audio, video, or data communications. Neither a telephone conversation nor an electronic mail message between a health care practitioner and patient constitutes "telemedicine" for purposes of this section.128
The Business and Professions Code states:
…prior to the delivery of health care via telemedicine, the health care practitioner who has ultimate authority over the care or primary diagnosis of the patient shall obtain verbal and written informed consent from the patient or the patient's legal representative.129
The business and Professions Code provide very specific instructions as to how to manage informed consent, and states that the following are to be included in the information presented to the client:
(1) The patient or the patient's legal representative retains the option to withhold or withdraw consent at any time without affecting the right to future care or treatment nor risking the loss or withdrawal of any program benefits to which the patient or the patient's legal representative would otherwise be entitled.
(2) A description of the potential risks, consequences, and benefits of telemedicine.
(3) All existing confidentiality protections apply.
(4) All existing laws regarding patient access to medical information and copies of medical records apply.
(5) Dissemination of any patient identifiable images or information from the telemedicine interaction to researchers or other entities shall not occur without the consent of the patient. 130
The code also indicates how the consent is to be handled:

A patient or the patient's legal representative shall sign a written statement prior to the delivery of health care via telemedicine, indicating that the patient or the patient's legal representative understands the written information provided pursuant to subdivision (a), and that this information has been discussed with the health care practitioner, or his or her designee.
The written consent statement signed by the patient or the patient's legal representative shall become part of the patient's medical record.131

Closing Thoughts: Principles of Privacy

In order to comply with the responsibilities of confidentiality, it is helpful to understand it as a set of principles. This will make it easier to identify situations in which the therapist must exercise special care in protecting client privacy. While the therapist should make every effort to commit key laws and standards to memory, protocol and habit, the therapist must most importantly understand the principles upon which privacy protections are based. With this foundation, the therapist will know when to turn to resources such as this text, specific laws, and professional legal advice.
While the course is fresh in your mind, it would be good to briefly think of some of the most important principles.
Privacy is a fundamental legal right, although it does not appear specifically in the Constitution of the United States.132
It has been inferred from the Constitution by the Supreme Court, and has been a developing doctrine since 1962.133
The right to privacy is specifically assured in the California Constitution134 and is expressed in numerous laws and court judgments. It is expressed in a number of amendments to the constitution, particularly the fourth amendment, pertaining to search and seizure, the fifth amendment which protects due process and freedom from self-incrimination, and the ninth amendment, which affirms the existence and promotes the protection of rights not specified in the Constitution. The laws that give therapists a responsibility to protect the privacy of clients are an expression of the fundamental right to privacy.
The devil is in the details, however, and the need to breach confidentiality results from the controversial processes of Constitutional law interpretation, legislation, the promulgation and enforcement of regulations, case law, and the everyday actions of psychotherapists in acting on their understanding of privacy. We have seen that profound changes in technology have created stress in society that have taxed the capacity of our legislatures and courts to respond effectively.
The rights of individuals and the needs of society must be balanced, and the rights of individuals, when in conflict, must be balanced. We have seen how these balancing acts play out in determining when to breach confidentiality in order to protect children from abuse, or in the responsibility to assert privilege when compelled by subpoena to testify.
Clinical records, administrative processes, storage and technology all pose risks to confidentiality. These impersonal factors require procedures and physical security measures to protect privacy. Human curiosity and even greed can pose threats to client privacy as well, and they must be accounted for in establishing privacy measures. For example, discretion must be exercised in determining which staff members may have access to which records. Providing only the minimum information necessary for a legitimate task is an example codified in HIPAA.
Patients have a right to informed consent, that is, to know the risks, responsibilities, and  potential rewards pertaining to receiving clinical services. Confidentiality issues are a key aspect of informed consent.
Patients have a right to receive services that are in their best interest. Issues regarding confidentiality or any other legal concept should never cloud the therapist’s judgment in supporting the best interests of the client. It is hoped that this training provides the therapist with useful guidelines that will make this task easier, more meaningful, and supportive of the therapist’s well being.

End of text. Now take the course quiz.

References

[1] See Confidentiality of Mental Health Information: Ethical, Legal, and Policy Issues, Chapter 7, Mental Health: A Report of the Surgeon General. This report may be found on the Web site of the Office of the Surgeon General, United States Department of Health and Human Services, at http://www.surgeongeneral.gov/library/mentalhealth/chapter7/sec1.html.
[2] See id., citing C. Dierks, Medical confidentiality and data protection as influenced by modern technology, 12 Medicine & Law 547–551 (1993).
[3] See id., citing B. Sharkin, Strains on confidentiality in college-student psychotherapy: Entangled therapeutic relationships, incidental encounters, and third-party inquiries, 16 Prof. Psychol., Research & Pract., 184–189 (1995).
[4] See id.
[5] See “I Hate It When That Happens..." - Law & Ethics For California Psychologists, Pamela H. Harmell, Ph.D., 2006.
[6] See A Guide to Psychotherapy and its Practice: Confidentiality, http://www.guidetopsychology.com/confid.htm
[7] See id.
[8] Code of Ethical Standards, CAMFT, May, 2002, http://www.camft.org/CamftBenefits/whatiscamft_ethnic1.html#Confidentiality.
[9] Ibid
[10] Ibid
[11] Code of Ethics, AAMFT, 2002
[12] See Informed Consent (part 1): its origins and development, Legal Basics, Practice Management, 2007, http://clinicallawyer.com/files/2007/05/03/informed-consent-part-1-its-not-just-a-piece-of-paper/
[13] Health and Safety Code 123110 (a)
[14] Health and Safety Code 123110 (d)
[15] Health and Safety Code 123111 (a)
[16] Health and Safety Code 123115 (b)
[17] Health and Safety Code 123130 (a)
[18] Health and Safety Code 123115 (b) (2)
[19] Health and Safety Code 123130 (d)
[20] Health and Safety Code 123130 (f)
[21] Health and Safety Code 123145 (a)
[22] Health and Safety Code 123149 (b)
[23] Health and Safety Code 123149 (g)
[24] Health and Safety Code 123149.5 (a)
[25] Health and Safety Code 123149.5 (c)
[26] See BBS Records, Cheryl Stoeble,  http://www2.dca.ca.gov/pls/wllpub/WLLQRYNA$LCEV2.QueryView?P_LICENSE_NUMBER=32923&P_LTE_ID=720
[27] Protecting the Privacy of Patients' Health Information, DHHS, 3/12/2007, http://www.hhs.gov/news/facts/privacy2007.html.
[28] Health Care Scene in California, C. Duane Dauner, President and Chief Executive Officer California Healthcare Association, May 10, 2001, http://www.ehcca.com/presentations/casymposium/dauner.pdf.
[29] ibid.
[30] ibid.
[31] Privacy Issues in Mental Health and Substance Abuse Treatment: Information Sharing Between Providers and Managed Care Organizations: Final Report, Suzanne Felt-Lisk, Jennifer Humensky, For the Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation, Office of Science Policy by Mathematica Policy Research, Inc., January 17, 2003, http://aspe.hhs.gov/datacncl/reports/MHPrivacy/Chap-1.htm#A
[32] See Becoming HIPAA Compliant, ACPA, referring to Office of Civil Rights, Department of Health and Human Services, Dec, 2003
[33] Protecting the Privacy of Patients' Health Information, HHS, 12/20/2000, http://www.hhs.gov/news/press/2000pres/00fsprivacy.html, HIPAA Final Privacy Rule, Part IV, Final Regulatory Impact Analysis, HHS, Privacy Issues in Mental Health and Substance Abuse Treatment: Information Sharing Between Providers and Managed Care Organizations: Final Report, Suzanne Felt-Lisk and Jennifer Humensky, For the Department of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation, Office of Science Policy by Mathematica Policy Research, Inc. January 17, 2003, http://aspe.hhs.gov/datacncl/reports/MHPrivacy/index.htm.
[34] HIPAA Final Privacy Rule, Part I, HHS, http://www.hhs.gov/ocr/part1.html
[35] HIPAA Final Privacy Rule, Part II, Section-By-Section Description of Rule Provisions, HHS, http://www.hhs.gov/ocr/part2.html.
[36] 45 CFR 164.512(f)(2) (in When does the Privacy Rule allow covered entities to disclose protected health information to law enforcement officials? HHS http://www.hhs.gov/hipaafaq/permitted/law/505.html
[37] ibid.
[38] See Becoming HIPAA Compliant, ACPA, referring to Psychotherapy Notes and You, Dave Jenson, Staff Attorney, CAMFT HIPAA, The Therapist, January/February 2003
[39] See Entire section on HIPAA drawn from Becoming HIPAA Compliant, ACPA
[40] Personal communication, Robert A. Yourell, CO LMFT, July 5, 2007.
 [41] Personal communication, Robert A. Yourell, CO LMFT, July 5, 2007 regarding training and experience as a prior CEAP.
[42] id.
[43] id.
[44] id.
[45] See Must Therapists Respond to Subpoenas? Legal Basics, Clinical Lawyer, March 13, 2007, http://clinicallawyer.com/files/?s=confidentiality&submit=Submit
[46] See id.
[47] See CA Civil Code § 43.92 (a), WIC 15634 (a)
[48] See In re Ewing v. Goldstein
[49] in re Brady v. Hopper, District Court of Colorado, John P. Moore, 1983, http://www.law.umkc.edu/faculty/projects/ftrials/hinckley/civil.htm
[50] See id.
[51] See Assessing Violence in Patients: Legal Implications, Ben Molbert, M.D., and James C. Beck, M.D., Ph.D., Psychiatric Times, Vol. XX Issue 1, Jan., 2003, referring to White v United States (1986), http://www.psychiatrictimes.com/p030122.html
[52] See id., referring to Jablonski v United States of America (1983), and Hamman v County of Maricopa (1989).
[53] See id., referring to Lindsey v United States of America (693 F. Supp. 1012 [U.S. Dist. 1988]), http://www.psychiatrictimes.com/violence.html.
[54] Confidentiality - Dangerous Patient?, Richard S. Leslie, J.D., Legal Resources, October 2005 , Volume 1, http://www.cphins.com/LegalResources/BulletinArchive/tabid/66/cid/41/sid/14/Default.aspx
[55] Personal communication, Robert A. Yourell, CO LMFT, July 5, 2007.
[56] Law and Ethics, Continuing Psychology Education, p. 7, http://forensicpsychiatry.stanford.edu/Files/ca-lawethics.pdf.
[57] California Evidence Codes 1014 and 1015, and American Association of Family Therapy Code of Ethics, sect. 2.2, July 1, 2001, http://www.aamft.org/resources/LRMPlan/Ethics/ethicscode2001.asp
[58] See Pen. Code 11166 (a), 15630 (a)
[59] See Pen. Code 11165
[60] See Pen. Code 15610.27
[61] See Pen. Code 11164
[62] See Pen. Code 11166 (a), 15630 (a)
[63] See Child Abuse Protection Handbook, Crime and Violence Prevention Center, California Attorney General’s Office, p. 27, 2006.
[63] See Personal communication, Robert A. Yourell, CO LMFT, July 5, 2007.
[64] See Personal communication, Robert A. Yourell, CO LMFT, July 5, 2007.
[65] See Pen. Code 15630 (b)
[66] See Pen. Code 15630 (h), 11166 (c), 11166.01 (a) (b)
[67] See Pen. Code 11164-11174.3 (e)
[68] See Pen. Code 15610.23. (a) (b)
[69] 1164(b)
[70] Id.
[71] Cal . Penal Code § 288
[72] (Gudemann).
[73] Cal . Penal Code §§ 288, 11165 .1
[74] Cal . Penal Code § 11165.1
[75] See Child Abuse: CA Welf. & Inst. Code § 18951 ff.
[76] See CA Welf. & Inst. Code § 15630-15632; § 15610-15610.65; § 15633-15637
[77] See AB 525 (Chu) Child Abuse Reporting, Pen. Code 11166.05
[78] Cal. Penal Code § 11166.05
[79] See California Business and Professional Code 728 (a)
[80] See California Business and Professional Code 728, and the Civil Code 43.93
[81] See Child Abuse Protection Handbook, Crime and Violence Prevention Center, California Attorney General’s Office, p. 27, 2006.
[82] See id.
[83] See Pen. Code 11167
[84] See Barton E. Bernstein, JD, LMSW, Thomas L. Hartsell, Jr., JD, The Portable Lawyer for Mental Health Professionals: An A-Z Guide to Protecting Your Clients, Your Practice, and Yourself , 2nd Edition, Wiley, 2004, p. 22.
[85] Personal communication, Robert A. Yourell, CO LMFT, July 5, 2007, referring to a fact-finding discussion with the BBS on this topic, and Barton E. Bernstein, JD, LMSW, Thomas L. Hartsell, Jr., JD, The Portable Lawyer for Mental Health Professionals: An A-Z Guide to Protecting Your Clients, Your Practice, and Yourself , 2nd Edition, Wiley, 2004, p. 22
[86] Personal communication, Robert A. Yourell, CO LMFT, July 5, 2007.
[87] See id. p. 5.
[88] See Civil Code 56.10
[89] See Confidentiality - Couple Being Treated, Richard S. Leslie, J.D., Bulletin Archive, April 2006, Vol. 1.
[90] See Confidentiality - "No Secrets" Policy (Couple Being Treated), Richard S. Leslie, J.D., Bulletin Archive, April 2006, Vol. 1.
[91] See id.
[92] See Personal communication, Robert A. Yourell, CO LMFT, July 5, 2007.
[93] See id.
[94] See id.
[95] See Confidentiality - Couple Being Treated, Richard S. Leslie, J.D., Bulletin Archive, April 2006, Vol. 1.
[96] See Personal communication, Robert A. Yourell, CO LMFT, July 5, 2007.
[97] See Confidentiality - Couple Being Treated, Richard S. Leslie, J.D., Bulletin Archive, April 2006, Vol. 1.
[98] See Personal communication, Robert A. Yourell, CO LMFT, July 5, 2007.
[99] See Bulletin Archive, Confidentiality - Group Therapy, Richard S. Leslie, July 2005, Vol. 1.
[100] Cal . Family Code § 6924(d). (In Gudeman, Minor Consent http://www.youthlaw.org/fileadmin/ncyl/youthlaw/publications/minor_consent/Minor_Consent_Report_Download.pdf.)
[101] Minor Consent, Confidentiality, and Child Abuse Reporting in California, Rebecca Gudeman, J.D., M.P.A, 2006, National Center for Youth Law.
[102] See In re Mark L. (2001) 94 Cal. App. 4th 573, and Evid. Code, ' 1013, subds. (a), Evid. Code, ' 1013, subds. (b).
[103] See Eby, David P., The Therapist Client Privilege in Child Custody Disputes: Understanding the Berg Decision, Networker-Newsletter of the NH Psychological Association, January 2006
[104] See Welf. & Inst. Code Section 317, subdivision (f)
[105] See Welfare and Institutions Code section 317, subsection (f) and The Law Relating to Confidentiality for Minors, http://www.lawandethics.info/confidminors.html
[106] Cal . Civil Code §§ 56 .10(a), 56 .11(c); Cal . Health & Safety Code §§ 123110(a), 123115(a)(1) (In Gudeman, Minor Consent article)
[107] See  Personal communication, Robert A. Yourell, CO LMFT, July 5, 2007.
[108] Minor Consent, Confidentiality, and Child Abuse Reporting in California, Rebecca Gudeman, J.D., M.P.A, 2006, National Center for Youth Law.
[109] See Bulletin Archive, Confidentiality - Pregnancy of a Minor, Richard S. Leslie, February 2007, Vol. 1.
[110] See id.
[111] See Bulletin Archive, Consent to Treat Minor (Sole and Joint Legal Custody), Richard S. Leslie, March 2007, Vol. 1.
[112] See id.
[113] See Avoiding Liability Bulletin, Termination of Treatment, June 2005
[114] See [1] See Bulletin Archive, Consent to Treat Minor (Sole and Joint Legal Custody), Richard S. Leslie, March 2007, Vol. 1.
[115] See In re DANIEL C.H. (1990) 220 Cal.App.3d 814
[116] See California Family Code section 6924
[117] See Health & Safety Section 123110, subdivision (a)
[118] See CA Evidence Code § 1013(c).
[119] See Personal communication, Robert A. Yourell, CO LMFT, July 5, 2007.
[120] See id.
[121] See Bulletin Archive, Confidentiality - AIDS/HIV, Richard S. Leslie, August 2005, Vol. 1, http://www.cphins.com/LegalResources/BulletinArchive/tabid/66/cid/37/sid/12/Default.aspx.
[122] See id.
[123] See HIV and Health Law: Striking the Balance between Legal Mandates and Medical Ethics, in AMA: Health Law, Laura Lin, MBA, JD, and Bryan A. Liang, MD, PhD, JD, October, 2005.
[124] See Consumer Information Regarding Online Psychotherapy: Notice to California Consumers Regarding Psychotherapy on the Internet, http://www.bbs.ca.gov/consumer/consumer_psych_online.shtml
[125] See The Business and Professions Code, Section 2290.5 (a) (1)
[126] See The Business and Professions Code, Section 2290.5  (h)
[127] See The Business and Professions Code, Section 2290.5  (i)
[128] See The Business and Professions Code, Section 2290.5  (a) (1)
[129] See The Business and Professions Code, Section 2290.5  (c)
[130] See The Business and Professions Code, Section 2290.5  (c)
[131] See The Business and Professions Code, Section 2290.5 (d) (e)
[132] The Constitution of the United States, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_documents&docid=f:sd011.105.
[133] Privacy, Banking Records and the Supreme Court: a Before and After Look at Miller, Richard Alexander, Roberta K. Spurgeon, Southwestern University Law Review 13-33 [1978], http://consumerlawpage.com/article/privacy.shtml, Griswold v. Connecticut, 381 U.S. 479, http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZC.html
[134] California Constitution, Article 1, Declaration of Rights, http://www.leginfo.ca.gov/.const/.article_1

End of text. Now take the course quiz.