Clay, R. A. (2017, June 1). How should a psychologist handle a parent's request for a minor's potentially harmful health records? Monitor on Psychology, 48(6). https://www.apa.org/monitor/2017/06/ce-corner
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Several times a year, "CE Corner" presents an ethical quandary and asks ethics experts to offer insights on how to address it. Here is this month's vignette:
Sixteen-year-old "Mary" has been in therapy with a psychologist as a result of her parents' bitterly contested divorce. During the course of therapy, she disclosed that she has had a sexual relationship with a boy who graduated from her high school several years ago and the psychologist included that information in her record. Mary was extremely reluctant to disclose the information to her psychologist because she feared that if it were ever disclosed to her father, he would react angrily, possibly violently. Mary reports that her father is strongly opposed to sex outside of marriage and that he has threatened to "make her pay" for any unhealthy choices she makes.
One morning, Mary's psychologist receives a letter from the father's attorney, which includes an authorization signed by Mary's father for the release of all of Mary's therapy records as part of his seeking custody through the divorce proceedings.
What should the psychologist do?
This vignette raises challenging legal issues,* in addition to ethical considerations. Cases involving high-conflict families are particularly sensitive. The psychologist needs to understand the Health Insurance Portability and Accountability Act (HIPAA), state privacy law, and his or her role in the process.
Any time a clinician has a doubt or question about how to proceed in any case, he or she should seek the advice of an attorney, says Thomas Pearson, JD, a former public member of the APA Ethics Committee and attorney based in Bloomington, Minnesota. Not all states let minors consent to treatment and some states specifically grant or deny parents access to their children's records, so this vignette is a prime example of why it is key to reach out to an attorney who is familiar with HIPAA and the laws in the jurisdiction on record-keeping, patient privacy and confidentiality, he says.
"Psychologists are often concerned about the cost of consulting with an attorney, but in most situations they can get a legal opinion in an hour or less of an attorney's time that can really save a lot of time and expense later on," Pearson says.
One of the first questions the psychologist should consider in this case is who legally provided consent for Mary's psychological treatment, says Linda Knauss, PhD, past chair of the APA Ethics Committee. Each state has a different law dictating at what age a person can give consent to treatment. In Pennsylvania, for example, the legal age of consent is 14 years old, meaning that Mary may have consented to her own treatment—which is often encouraged if a person is old enough.
If she did provide the consent to treatment, then she likely controls patient confidentiality and access to her records. She would need to be the one to sign the authorization for a third party to access her information, not her father, explains Knauss, who is also a professor of clinical psychology at Widener University.
However, if Mary's parents consented to treatment with the psychologist because they have the legal right, then they likely control confidentiality and access to her records. If the parents had already gone through divorce and custody proceedings, there may be court orders determining what rights each parent has regarding their child's medical information. Assuming the court order is silent on whether both parents must agree to release medical information, it would be advisable to obtain both parents' agreement, says retired Minnesota clinical psychologist Jack Schaffer, PhD, former president of the Association of State and Provincial Psychology Boards. After the psychologist consults with his or her own attorney on this issue, it would likely be appropriate to communicate back to the father's attorney that he or she would need a consent signed by Mary's mother or a court order in order to release the child's records.
Another legal issue to consider is whether the sexual contact that Mary described meets the definition of child sexual abuse in her jurisdiction, advises Janet Thomas, PsyD, a clinical psychologist in St. Paul, Minnesota, who provides ethics consultation and clinical supervision for mental health professionals. It's unclear from the vignette how old the boy was when the alleged sexual contact occurred, as well as the age difference between the two. If the age difference meets the definition of child abuse, the clinician likely is required to report it to authorities, says Thomas, a former chair of the Minnesota Psychological Association Ethics Committee and former member of the APA Ethics Committee.
"In many cases, psychologists can get a free initial read of these issues from APA, if they are members, and from their professional liability insurer," says Alan Nessman, JD, senior special counsel for the APA Practice Directorate's Legal and Regulatory Affairs Office. Those sources may also be able to recommend attorneys who can counsel the psychologist, but Nessman notes that finding a private attorney with real expertise in this area can be challenging.
Clinicians have several ethical issues to consider in this case, particularly those related to competence, multiple relationships, informed consent and record keeping.
Competence, as spelled out in the APA Ethics Code's Standard 2.01: Boundaries of Competence, requires clinicians to practice only in the boundaries of their competence, which can be demonstrated by their education, training and experience. Psychologists working on cases involving divorce or child custody should have familiarity with child psychology, family psychology, psychological assessment and a basic understanding of the boundaries with forensic psychology, as well as the legal issues that may arise. Even if the psychologist's role is that of a treating professional, the psychologist must be prepared to address scenarios that are likely to transpire when family relationships devolve.
"As a board member, I saw lots of cases where clinicians who were very competent at providing psychological services knew nothing about the legal arena and ended up overstepping on custody issues, without having any idea of what the implications might be," Schaffer says. "Having some familiarity with the boundary between therapy practice and forensic psychology is really important if you decide to take on these types of cases."
If the psychologist has not treated clients who are involved in contentious divorces or custody matters, he or she should seek supervision and receive additional training before accepting clients in these cases.
It may be possible to avoid conflicts and disagreements by clearly defining the psychologist's role and responsibilities before treatment begins. If the psychologist is retained to provide therapy to children or a parent involved in a divorce or custody situation, it is important for the psychologist to clarify what the parents can—and cannot—expect. For example, the psychologist can explain that he or she cannot be an advocate for either side and will not be able to testify as an expert witness regarding issues such as visitation, custody or fitness to parent. The psychologist may have to testify as a fact witness regarding the therapy. This role clarification will help clinicians stay in line with Standard 3.05: Multiple Relationships. "The [psychologist's] sense of caring can get in the way of being objective about what roles and behaviors are appropriate," Schaffer says.
Informed consent is also crucial in this case. Standard 3.10: Informed Consent and Standard 10.01: Informed Consent to Therapy require that psychologists inform clients about the limits of their privacy at the outset of treatment. Some states even require a signed written consent, but at minimum, the psychologist should have had a detailed discussion with Mary and her parents about the parents' legal right to her therapy records, Thomas says.
If the state in which the psychologist practices allows minors to consent to treatment, and therefore to control access to their records, it is good to clarify that arrangement at this stage. In instances where the parents have control over their child's records, it is sometimes possible to get them to agree to keep therapy details private, with limited exceptions (such as illegal substance use, dangerous activity and suicidal ideation). That informed consent may also include the parents' agreement to receive periodic updates on their child's treatment, rather than full summaries after each session—a procedure that can enable children to speak more freely with the therapist, Thomas says. "Most of the time, parents will agree to this," she says, adding that such agreements may not always override the parents' legal right to the information, depending on state law. In states that give the parents the right to access despite such an agreement, the child needs to know that even if the parents agree to allow the therapy to remain confidential, they could change their minds and the psychologist would be required to share that information, she says.
According to Nessman, many of the legal issues and uncertainties can be avoided if the psychologist has the parents—particularly parents of older minor patients—sign an informed consent at the start of therapy that covers what will stay confidential during therapy sessions. Where the parents are likely to control the child's records, it may also be helpful to have them agree up front on whether one or both of them must consent to the release of the child's records, especially if there is actual or potential conflict between the parents.
Making sure that Mary understands her rights is paramount, says Knauss. "I'd much rather a patient not tell me something than end up in the situation that Mary is in."
Psychologists should also be mindful of the information they include in their progress notes, Knauss adds. Standard 6.01: Documentation of Professional and Scientific Work and Maintenance of Records as well as APA's 2007 Record Keeping Guidelines provide direction on this. Clinicians should record who attended each session, the length of the session, and the client's treatment goals and progress.
But some sensitive information may not need to be written down if it's not relevant to a client's treatment. It's unclear from the vignette, for example, whether Mary's previous sexual relationship is pertinent to her treatment, Knauss says. "Certainly, sometimes it's relevant and so it should be in the notes, but the point is that one should think carefully about what one writes in one's notes."
Once the psychologist has determined who has control over the records, the psychologist must consider whether there is any limitation on access to the minor's records or other ways to approach the matter.
For example, if the father has the right to access the records, and the psychologist is subject to HIPAA, how should the psychologist react to Mary's concerns that her father will "make her pay" if he finds out about her sexual relationship? Nessman suggests that the psychologist consider the HIPAA provision giving the psychologist discretion not to let a parent access records if the psychologist determines that that access would not be in the minor patient's best interest, and has a reasonable belief that access could endanger Mary or subject her to abuse.
However, the question of potential harm can be tricky, Pearson notes: If a client is simply going to be upset that a parent or someone else has gained access to the information in their records, that's not necessarily the harm contemplated by HIPAA or state laws allowing psychologists to withhold records because of potential harm. In fact, a psychologist could get in trouble later on with a psychology board or even in a civil case for refusing to release information.
Turning to clinical strategies, the psychologist might let Mary know he or she received this request, and ask if she would be comfortable if the therapist discussed it with her father, Knauss says. (If Mary controls the records, HIPAA would require that she sign an authorization for that discussion.)
"Then the father can ask questions and perhaps get more insight about Mary's state of mind and what's in the records," she says. If he's extremely angry about the information shared, the psychologist could intervene and perhaps be able to decrease his anger, whereas if he just read it on a piece of paper and he's alone in a room or with his attorney, his anger could escalate.
Another option in scenarios not involving a custody dispute might be for the psychologist to offer to write a report about Mary and the work that's been done in therapy—a therapy summary—rather than sending the record, Knauss says. (If the father has the right to records, under HIPAA the psychologist needs to make it clear that the father understands that right when offering a summary instead.) Sometimes, that is enough to satisfy the person requesting the information, and it also gives the therapist another opportunity to think about what they want to include in the report, she says.
In this example, let's assume the psychologist appropriately consulted with the psychologist's malpractice carrier, APA's Legal and Regulatory Affairs Office and a local licensed attorney and that the legal advice received was that the minor patient had control over her therapy records because of a state law that grants minors the right to consent to treatment beginning at age 15. Therefore, under HIPAA and this state's law she—rather than her father—was the one to authorize the release of her records. The father's request would not be sufficient for the release of records. Under this fact pattern, the psychologist was advised that under her state's law and HIPAA, since Mary consented to treatment, the father did not have the right to demand her records. The psychologist should respond to the father's attorney that he or she cannot release Mary's records or testify without her authorization or a court order.
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