Documenting Psychotherapy: Essentials for Mental Health Practitioners
Publication Year: 1998
Subject: General Counseling & Psychotherapy
This concise volume examines exactly what is involved in keeping adequate clinical records of individual, family, couple and group psychotherapy. The authors discuss: limits of confidentiality; retention and disposing of records; documentation of safety issues; client access to records; treatment of minors; and training and supervision issues. Throughout the book, legal cases, vignettes and professional commentary help readers to consider legal and ethical issues.
- Front Matter
- Back Matter
- Subject Index
- Chapter 3: Contents of a Good Record
- Chapter 4: Families, Couples, and Group Psychotherapy
- Chapter 5: Supervision and Training
Copyright © 1998 by Sage Publications, Inc.
All rights reserved. No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the publisher.
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Library of Congress Cataloging-in-Publication Data
Moline, Mary E.
Documenting psychotherapy: Essentials for mental health practitioners by Mary E. Moline, George T. Williams, Kenneth M. Austin
Includes bibliographical references and index.
ISBN 0-8039-4691-0 (cloth: acid-free paper).—ISBN 0-8039-4692-9 (pbk.: acid-free paper)
1. Psychiatric records. I. Williams, George Taylor. II. Austin, Kenneth M. III. Title.
02 03 04 10 9 8 7 6
Acquiring Editor: Jim Nageotte
Editorial Assistant: Kathleen Derby
Production Editor: Sanford Robinson
Production Assistant: Denise Santoyo
Copy Editor: Joyce Kuhn
Typesetter/Designer: Marion S. Warren
lndexer: Molly Hall
Cover Designer: Anahid Moradkhan
Print Buyer: Anna Chin
Each of us has contributed equally to the writing of this book, so there is no senior author. Although we had responsibilities for certain chapters, we collaborated in revising the contents into the final form.
When we first became aware of the various issues involved in keeping psychotherapeutic records, we were researching court cases for our first book, Confronting Malpractice: Legal and Ethical Dilemmas in Psychotherapy (1990). It was conspicuous that psychotherapists were not brought to court because of improper records but, rather, that their defense was weakened because of poor, or lack of, record keeping. Therefore, we became interested in researching various aspects of record keeping and formulated questions to investigate: Is there genuinely a need for good records? Are there laws regarding record keeping? What do our colleagues believe regarding records? Do records serve both the client and the therapist equally? What do related professional organizations advise about keeping records? What comprises a “good record”? When issues of confidentiality (e.g., harm to self or others) become apparent, how should one record them? Are there any requirements for storing and destroying records? Our interest in answering these and other frequently asked questions became the motivation factor for writing this book.
[Page ix]We maintain that inadequate record keeping or having no record can negatively affect the outcome of a case against a psychotherapist. On August 21, 1994, Los Angeles Times Magazine indicated that there are 8,000 to 10,000 lawsuits against psychotherapists pending in United States courts, and at least 1,000 of them are in California. We only hope that all of these psychotherapists have kept good records.
Because of the litigious nature of contemporary America, it is vital that both licensed psychotherapists and students in the field of mental health learn how to keep good records. We are not members of the legal profession, so our comments and evaluations of legal cases are presented from the perspective of mental health professionals. Please note that the implications of these cases will differ from state to state. If you need more information, check with an attorney, your state licensing board, or your professional association.
Keeping good records is not just a method to avoid litigation. We firmly believe that good record keeping supports the therapist in conducting professional duties and thus assists in providing appropriate care for clients. This consideration, we believe, outweighs any legal deliberation.
We have divided this book into five parts. At the beginning of each part, the contents of its chapters are briefly discussed. The structure for all chapters is to follow the presentation of the material with a brief summary. Throughout this book, we refer to California laws because it would have been too cumbersome a task to include the relevant laws for all states in the nation. One or more court cases are presented to give the reader an illustration of legal decisions as well as similarities and differences between the states. Some questions follow the court cases. These questions were designed to stimulate thought. Some have several possible answers. After the questions, one or more vignettes are presented. Again, there may be more than one solution to a vignette. Appendix K presents one possible answer to one vignette in each chapter.
This book took a good deal of our time and coordinated effort. We wish to thank our families for their support and encouragement.
Appendixes[Page 145][Page 146]
Appendix A: Legal Citations[Page 147]Chapter 1: Protecting the Client and the Therapist
New York: Whitree v. State of New York (1968)
Michigan: Detroit Edison v. National Labor Relations Board (1979)
North Carolina: White v. N.C. State Board of Examiners (1990)
New York: Susiovick v. New York State Education Department (1991)
Michigan: Detroit Edison v. National Labor Relations Board (1979)Chapter 2: Limits of Confidentiality
South Dakota: Schaffer v. Spicer (1974)
Illinois: In re Donald Pebsworth Appeal of Dr. Kersey Anita (1983)Chapter 3: Contents of a Good RecordDiagnostic Error
Iowa: Mrs. Kenneth Baker v. United State of America (1964)
Alabama: North American Company for Life and Health Insurance v. Berger (1981)Informed Consent
Alabama: Underwood v. U.S.A. (1966)
Michigan: Stowers v. Wolodzko (1971)Treatment of a Minor
Illinois: Dymek v. Nyquist (1984)Chapter 4: Families, Couples, and Group Psychotherapy
California: Guity v. Kandilakis (1991)
California: James W. v. Superior Court (1993)[Page 148]Chapter 5: Supervision and Training
New York: Cohen v. State of New York (1975)Chapter 6: Danger to Self
New York: Willie Eady v. Jacob Alter (1976)
California: Bellah & Bellah v. Greenson (1977)
California: Johnson v. County of Los Angeles (1983)Chapter 7: Danger to others
California: Tarasoff v. The Regents of the University of California (1975)
Maryland: Shaw v. Glickman (1980)
Nebraska: Lipari & the Bank of Elkorn v. Sears Roebuck & Co & U.S.A. (1980)
California: Doyle and Doyle v. U.S.A. (1982)
Minnesota: Cairl et al. v. State of Minnesota et al. (1982)
Michigan: Davis v. Lhim (1983)
Michigan: Chrite v. U.S.A. (1983)
District of Columbia: White v. U.S.A. (1986)
California: People v. Kevin F. (1989)
New York: Oringer v. Rotkin (1990)Chapter 8: Abuse
Texas: W.C.W. v. Bird (1992)
Illinois: Sullivan v. Cheshier (1994)Chapter 9: Treatment of Minors
Wisconsin: Wisconsin v. S. H. (1990)Chapter 10: Client Access to Records
California: Cutter v. Brownbridge (1986)
New York: Jane Doe v. Joan Roe & Peter Poe (1977)
Indiana: Waiters v. Dinn (1994)[Page 149]Chapter 11: Retention and Disposition of Records
New York: Estate of Finkle (1977)Chapter 12: Conclusions and Frequently Asked Questions
Iowa: McMaster v. Iowa Board of Psychology Examiners (1993)
Appendix B: Case Record Example[Page 150][Page 151][Page 152]
Appendix C: Progress Notes Example[Page 153][Page 154][Page 155][Page 156][Page 157]
Appendix D: Treatment Plan[Page 158]
Name: Ann Example
- School attendance and homework
- School grades
Behavioral Objective: Time Frame:
- Decrease truancy by 75%
- Improve all grades to B or A
- 3 months
- 3 months
Concepts/skills to Develop:
- Develop good study habits
- Focus on significance of grades in getting into college
- Hypnosis: (a) suggestions to improve memory, (b) improve attendance, and (c) improve homework
- Verbal-directive psychotherapy—Reality-oriented therapy
Appendix E: Billing for Services[Page 159]
Appendix F: Informed Consent[Page 160]
I (we), Mary and Ann Example, assert that I have discussed the goals, objectives, methods, and time frame of my Treatment Plan with my psychotherapist Dr. XYZ. I understand that the above may be modified as therapy progresses. I understand that I have the right to refuse treatment or to terminate psychotherapy should I choose. I understand fully the risks, alternatives, and the nature of the treatment to be employed. I am aware that my psychotherapist will discuss these or any other issues should I request. At this time, I consent to work toward the achievement of the objectives stated in my Treatment Plan. I further specifically limit my therapist's use of any information which can in any way identify me to others unless I have offered my specific written permission. It is without any pressure or coercion that I sign this consent.
I agree to compensate my therapist at the rate of $100.00 per each session.
Date: 10–28–94 __________
Signature: s/Mary Example s/Ann Example _____
Witness: s/Miss Observant _____
Appendix G: Consent Form for Audio/Video Recording[Page 161]
Appendix H: Fax Cover Letter Consent Form[Page 162]
PLEASE DELIVER THE FOLLOWING RIGHT AWAY TO:
FAX NO: ________
TOTAL PAGES INCLUDING COVER PAGE. IF YOU DO NOT RECEIVE ALL THE PAGES, PLEASE PHONE AS SOON AS POSSIBLE AT
The accompanying documents contain confidential or legally privileged information transmitted by _____. This information is only for the use of the person named on this transmission sheet. If you are not the intended recipient, you are not authorized to use, disclose or copy any of the information and you should promptly notify _____ by telephone of the erroneous transmission so arrangements for the return of the documents can be made at our expense.
Appendix I: California Limitation on Confidentiality: A Brochure for Clients[Page 163]
We greatly respect your right of privacy especially regarding information you share in therapy. We also believe you should fully understand the limitations of confidentiality in order for you to make an informed decision regarding what you disclose in therapy.
We are required to disclose confidential information to regulated third parties if any of the following conditions exist:
- You are a danger to yourself or others.
- You seek treatment to and/or enable anyone to commit a crime or to avoid detection or apprehension.
- Your therapist was appointed by the court to evaluate you.
- Your contact with your therapist is for the purpose of determining sanity in a criminal proceeding.
- Your contact is part of a proceeding to establish your competence.
- The contact is one in which your psychotherapist must file a report to a public employee or as information required to be recorded in a public office, if such report or record is open to public inspection.
- You are under 16 years old, and you are the victim of a crime.
- You are a minor, and your psychotherapist reasonably suspects you are a victim of child abuse.
- You are a person over age 65, and your psychotherapist believes you are the victim of physical abuse; your therapist may disclose information if you are the victim of emotional abuse.
- You die, and the communication is important to decide an issue concerning a deed of conveyance, will, or other writing executed by you affecting an interest in property.
- You die, and the communication is important as to your intent related to a deed of conveyance, will, or other writing executed by you.[Page 164]
- You file suit against your therapist for breach of a duty or if your therapist files suit against you.
- The communication is important to an issue between parties claiming through you after you have died.
- You have filed suit against anyone and have claimed mental/emotional damages, as a part of the suit.
- You waive your right to privilege or give consent to limited disclosure by your therapist.
- If you fail to pay your bill, your psychotherapist may turn your case over for collection.
Appendix J: California's Consent and Disclosure Requirements for Minors[Page 165]
If the Patient Is Under 18 Years of Age Whose Consent Is Required for Care? Can Parents Be Notified of Care? A. There are no other special circumstances Parent/Legal guardian Yes B. (Implied Consent) There is an emergency and the parents cannot be contacted No one need consent Yes C. (Transfer of Consent Power) There is a document signed Person named in document by a parent transferring consent power Yes D. (Totally Emancipated)
- Is or has ever been legally married
- Is on active military duty
- Is over 15, not living at home and managing own financial affairs
- Has an ID card from DMV stating emancipated minor
- Not unless minor agrees
- Not unless minor agrees
- Not unless minor agrees
- Not unless minor agrees
E. (Partially Emancipated)
- If 12 years or older, is in need of outpatient mental health care, is a danger to self, and/or to others, and may be a victim of child abuse
- Is 12 years or older and has a drug- or alcohol-related problem
- Is alleged to have been sexually assaulted
- Minor, for outpatient mental health care
- Minor, for the drug or alcohol problems
- Minor, for care of sexual assault
- Involvement of parent if required unless physician decides notification is not appropriate
- Same as above
- Yes, if the parent is not responsible for the sexual assault
Appendix K: Answers to Vignettes Presented in Chapters[Page 166]Chapter 1: Protecting the Client and the Therapist (Vignette B, Page 18)
This is one way of dealing with a subpoena for original material, as you need to be able to retain your “tools of the trade.” Should an issue arise regarding photocopying of copyright materials, it would be wise to contact the holder of the copyright, who might want to have their attorney fight for the protection of that copyright. Also, consider contacting the American Psychological Association, who might wish to enter the picture to protect the tests in question owing to the probable loss of reliability.Chapter 2: Limits of Confidentiality (Vignette, Page 28)
You do not make a child abuse report based on this meager information, for “thinks it must be her father's hand” and that “he probably sexually abused her” are too vague. You need more information, For example, what makes her “think” so, and what does she mean by “probably”? At what age?—when she was younger? Where did it happen? Responses to these questions would help clarify the picture.Chapter 3: Contents of a Good Record (Vignette G, Page 55)
Any case in which a psychotherapist is having a problem with a client is an excellent occasion to consult another therapist. If the consultant does nothing more than support/confirm your treatment plan, it at least lets you know you are on a solid foundation. Frequently, however, the consultant will open up new ideas, thoughts, approaches, and so on that gives the therapist new alternatives. Of course, any consultations should be documented.[Page 167]Chapter 4: Families, Couples, and Group Psychotherapy (Vignette A, Page 61)
A person can only consent to the release of his or her own records. If you kept separate records, you would send only the wife's. If you did not keep separate records, you would have to (a) omit parts that the husband holds are confidential, (b) receive the husband's consent to release his records, and (c) be aware that the judge could order you to release the husband's records. (If this occurs, you can ask the judge to review the file “in camera” [chambers] to determine what needs to be released.)Chapter 5: Supervision and Training (Vignette A, Page 68)
This vignette highlights the issue of confidentiality, which needs to be explored in the first session when one is seeing an individual, couple, or family. If a therapist's policy is not to guarantee confidentiality when seeing one partner alone, this needs to be stated from the outset. However, if this is not the policy and a therapist is willing to keep confidentiality when seeing one spouse alone, we suggest that at that time it is best to keep a separate record. Records need to reflect what the rules are concerning the issue of confidentiality. For example, we suggest that you keep a separate file on the husband who has tested HIV positive and maintain another file on the couple. This we believe is especially warranted if you had explained to the couple that you would keep in confidence any conversations you had with them alone.
Another point brought forth by this vignette is the matter of privileged information. That is, who can have access to records, and under what conditions? In this case, the wife's lawyer cannot obtain records that contain data about her husband without his written consent. Nor could you send records, even to her lawyer, that contain data about her without her written consent. If the husband did not give his signed consent for his wife to have access to their records, we suggest that you contact her lawyer and explain your inability to obtain consent and grant their request. Of course, [Page 168]the judge can request their records without consent, and you must then comply.
If you do keep separate records, the outcome could be different because the husband might be more agreeable to having their joint record sent to his wife's lawyer. He could be assured that the issue he is most concerned about her knowing (HIV) would not be made public.
Finally, we suggest that there is an alternative to sending an entire copy of a file, and that is to write a summary statement regarding their treatment. This could be a one-page writeup containing information you believe would be appropriate considering the circumstance. We suggest the husband and wife be given a copy (of the summary statement) prior to receiving their signed consent.Chapter 6: Danger to Self (Vignette A, Page 82)
One possible suggestion is to ask the husband if he knows what set her off—for example, did they have a fight? This is information not obtained from your client. You have not talked to her or observed her and do not know about the reliability of the information presented. Therefore, you might advise the husband to call the police and seek their assistance in finding his wife and getting her evaluated. You record the information the husband gives you and what you advised him to do.Chapter 7: Danger to others (Vignette, Page 101)
Be aware that there is a difference between “thoughts” and “actions.” You must determine if her thoughts are only an expression of her anger or an intent to kill him. Your questions must be designed to determine if she has actually made a threat or shown intent to kill him. If so, it is a mandated report in some states, such as California, where the therapist must notify both law enforcement and the husband (don't assume he knows). If no threat is made, you evaluate the need for her hospitalization as a possible danger to others, write what you did, and state both the time and the name notified.[Page 169]Chapter 8: Abuse (Vignette, Page 109)
If this 16-year-old is emancipated, she is legally considered an adult. Thus, you would not release records to her mother unless the 16-year-old authorized you to do so. Because her father is serving time in prison for the abuse, your patient may have no objections regarding signing a release. If so, it is suggested you discuss a release to send the mother a summary report as opposed to a photocopy of the records. Document what transpired and any specific release given and signed by your client.Chapter 9: Treatment of Minors (Vignette, Page 119)
You must know your state law. For example, in California you can see a minor aged 12 or older who is involved with drugs without parental consent. It is your choice. Consider whether he can pay or if you are willing to do this for free. If you try to use the parents’ insurance, the parents will most likely find out. Also, consider that you would most likely end up in court due to the child custody issue. Document as though you know your record will be part of the court proceeding. This also is an excellent case to seek consultation (and, of course, document this in the record).Chapter 10: Client Access to Records (Vignette, Page 131)
If the state has no law regarding client access to records, you must refer to your professional code of ethics. Peer consultation would be appropriate and, of course, documented. It would also be wise to consult with legal counsel.Chapter 11: Retention and Disposition of Records (Vignette B, Page 138)
The psychotherapist is responsible for the destruction of records. Although an outside firm can be retained to perform this service, it is a good idea to contract with a reputable firm that is bonded and insured.
Appendix L: Ethical Codes Related to Record Keeping[Page 170]
The specific ethical guidelines pertaining to record keeping among six of the mental health professions are as follows:
- American Association for Marriage and Family Therapy (1991)
AAMFT Code of Ethics
2.3. Marriage and family therapists store or dispose of client records in ways that maintain confidentiality.
- American Counseling Association (1995)
Code of Ethics and Standards of Practice
- Requirement of Records. Counselors maintain records necessary for rendering professional services to their clients and as required by laws, regulations, or agency or institution procedures.
- Confidentiality of Records. Counselors are responsible for securing the safety and confidentiality of any counseling records they create, maintain, transfer, or destroy whether the records are written, taped, computerized, or stored in any other medium. (See B.1.a.)
- Permission to Record or Observe. Counselors obtain permission from clients prior to electronically recording or observing sessions. (See A.3.a.)
- Client Access. Counselors recognize that counseling records are kept for the benefit of clients and therefore provide access to records and copies of records when requested by competent clients, unless the records contain information that may be misleading and detrimental to the client. In situations involving multiple clients, access to records is limited to those parts of records that do not include confidential information related to another client. (See A.8., B.1.a., and B.2.b.)[Page 171]
- Disclosure or Transfer. Counselors obtain written permission from clients to disclose or transfer records to legitimate third parties unless exceptions to confidentiality exist as listed in Section B.1. Steps are taken to ensure that receivers of counseling records are sensitive to their confidential nature.
- American Psychiatric Association (1986)
Principles of Medical Ethics, with Annotations Especially Applicable to Psychiatry
- Psychiatric records, including even the identification of a person as a patient, must be protected with extreme care. Confidentiality is essential to psychiatric treatment. This is based in part on the special nature of psychiatric therapy as well as on the traditional ethical relationship between physician and patient. Growing concern regarding civil rights of patients and the possible adverse effects of computerization, duplication equipment, and data banks makes the dissemination of confidential information an increasing hazard. Because of the sensitive and private nature of the information with which the psychiatrist deals, he/she must be circumspect in the information that he/she chooses to disclose to others about a patient. The welfare of the patient must be a continuing consideration.
- A psychiatrist may release confidential information only with the authorization of the patient or under proper legal compulsion. The continuing duty of the psychiatrist to protect the patient includes fully apprising him/her of the connotations of waiving the privilege of privacy. This may become an issue when the patient is being investigated by a government agency, is applying for a position, or is involved in a legal action. The same principles apply to the release of information concerning treatment to medical departments of government agencies, business organizations, labor unions, and insurance companies. Information gained in confidence about patients seen in student health services should not be released without the student's explicit permission.[Page 172]
- Ethically, the psychiatrist may disclose only that information which is relevant to a given situation. He/she should avoid offering speculation as fact. Sensitive information such as an individual's sexual orientation or fantasy material is usually considered unnecessary.
- American Psychological Association (1992)
Ethical Principles of Psychologists and Code of Conduct
1.24 Records and Data
Psychologists create, maintain, disseminate, store, retain, and dispose of records and data relating to their research, practice, and other work in accordance with law and in a manner that permits compliance with the requirements of this Ethics Code.
5.04 Maintenance of Records
Psychologists maintain appropriate confidentiality in creating, storing, accessing, transferring, and disposing of records under their control, whether these are written, automated, or in any other medium. Psychologists maintain and dispose of records in accordance with law and in a manner that permits compliance with the requirements of this Ethics Code.
- Association for Specialists in Group Work (1989)
Ethical Guidelines for Group Counselors
- Group counselors video- or audiotape a group session only with prior consent, and the member's knowledge of how the tape will be used.
- (h) Group counselors store or dispose of group member records (written, audio, video, etc.) in ways that maintain confidentiality.
- National Association of Social Workers (1996)
Code of Ethics
- Access to Records
- Social workers should provide clients with reasonable access to records concerning the clients. Social workers who are concerned that clients’ access to their records could cause serious misunderstanding or harm to the client [Page 173]should provide assistance in interpreting the records and consultation with the client regarding the records. Social workers should limit clients’ access to their records, or portions of their records, only in exceptional circumstances when there is compelling evidence that such access would cause serious harm to the client. Both clients’ requests and the rationale for withholding some or all of the record should be documented in clients’ files.
- When providing clients with access to their records, social workers should take steps to protect the confidentiality of other individuals identified or discussed in such records.
- Client Records
- Social workers should take reasonable steps to ensure that documentation in records is accurate and reflects the services provided.
- Social workers should include sufficient and timely documentation in records to facilitate the delivery of services and to ensure continuity of services provided to clients in the future.
- Social workers’ documentation should protect clients’ privacy to the extent that is possible and appropriate and should include only information that is directly relevant to the delivery of services.
- Social workers should store records following the termination of services to ensure reasonable future access. Records should be maintained for the number of years required by state statutes or relevant contracts.
Appendix M: Glossary of Legal Terms Pertaining to Psychotherapy[Page 174]
- Confidential communication—This includes “information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence … and includes a diagnosis made and the advice given by the psychotherapist in the course of the relationship” (Evidence Code 1012). A client or other party who hold the privilege has the right, except in certain legally defined situations, to protect confidential communications from being revealed in legal proceedings.
- Confidentiality—This refers to an ethical responsibility that protects clients from unauthorized disclosure of information given in confidence to a mental health professional. Although confidentiality is primarily an ethical responsibility, several state laws (including California) stipulate that a psychotherapist may lose his or her license for willful, unauthorized communication of information received in professional confidence. Also, a number of state laws (including California) either mandate or permit breaches of confidentiality in certain situations.
- Emancipated minor—This is a minor who is free from the legal authority of parents or guardians. Under California law, a minor who is at least age 14 may become emancipated by marrying legally, enlisting in the military, or by meeting certain legally defined requirements and filing a petition with the court. Emancipated minors are treated legally as if they were adults and thus can consent to medical and psychological treatment.
- Health care provider—This means any of the following: (1) a licensed health facility, (2) a licensed clinic, (3) a licensed home health agency, (4) a licensed physician/surgeon, (5) a licensed podiatrist, (6) a licensed dentist, (7) a licensed psychologist, (8) a licensed optometrist, (9) a licensed chiropractor, (10) a licensed marriage, family, and child counselor, and (11) a licensed clinical social worker (Health and Safety Code 123105).
- Mental health records—These are patient records relating to evaluation or treatment of a mental disorder. These records include, but are not limited to, substance abuse (drugs and/or alcohol) records (Health and Safety Code 123105).[Page 175]
- Minor—In California, this means an individual under the age of 18 who has not been emancipated.
- Patient—This refers to a person who consults a psychotherapist for the purpose of diagnosis and/or treatment of an emotional condition (Evidence Code 1011).
- Patient records—These are records in any form or medium maintained by or in the custody of a health care provider relating to the patient's health history, diagnosis, and treatment provided to the patient. Patient records do not include information given in confidence by a person other than another health care provider or the patient and such material may be removed from the record prior to inspection or copying (Health and Safety Code 123105).
- Privilege—This is a legal term that refers to an individual's right to not have confidential information revealed in court or other legal proceedings without permission.
Holder of the privilege—the person who has the right to waive the privilege, which is the right not to have confidential information revealed in legal proceedings. The “holder of the privilege” is (1) the client when he has no guardian or conservator, (2) the guardian or conservator when there is one, and (3) a personal representative of the client if the client is dead (Evidence Code 1013). The psychotherapist should claim the privilege (i.e., to assert the right) for the client unless disclosure is instructed by the person authorized to permit disclosure (Evidence Code 1015).
Exceptions to privilege—refers to situations in which an individual does not have the right to prevent confidential information from being revealed in court or legal proceedings. Some of these exceptions also detail situations in which a psychotherapist is legally permitted but not mandated to breach confidentiality. Below are listed some of the exceptions to privilege:
- Patient-litigant exception—exists when there is a relevant issue concerning the mental or emotional condition of the client (Evidence Code 1016).
- Court-appointed psychotherapist exception—exists when a psychotherapist is appointed pursuant to court order to examine the patient. “This exception does not apply where the court has appointed a psychotherapist at the request of defendant's lawyer in a criminal proceeding for the purpose of determining whether defendant should enter a plea based [Page 176]on insanity or base a defense on his or her mental or emotional condition” (Evidence Code 1017).
- Crime or tort exception—when the services of the psychotherapist were sought to aid in the commitment of a crime or tort or to escape detection or apprehension following the commission of a crime or tort (Evidence Code 1018).
- Deceased patient exception—exists when personal representative of the client authorizes or whenever claims are made, regardless of testate of intestate (Evidence Code 1019).
- Breach of duty arising out of the psychotherapist-patient relationship—eliminates the privilege. The issue of breach (i.e., violation or breaking of a contractual agreement between two persons) can be by the therapist or by the client (Evidence Code 1020).
- Proceeding to determine sanity of criminal defendant—when initiated at the request of the defendant in a criminal action to determine his/her sanity results in no privilege (Evidence Code 1023).
- Patient dangerous to self or others—eliminates privilege if the psychotherapist has reasonable cause to believe the patient is in a mental or emotional condition that causes him or her to be dangerous to self, others, or property of another. Disclosure of the communication is necessary to prevent the threatened danger (Evidence Code 1024).
- Proceeding to establish competence—results in no privilege (Evidence Code 1025).
- Required report—which is open to the public, when information is required by a public employee or to be recorded in a public office, results in no privilege (Evidence Code 1026).
- Psychotherapist—This is a person who is authorized or believed by the patient to be authorized to practice psychotherapy. In California, this would be a licensed individual such as a psychologist, psychiatrist, marriage counselor, clinical social worker, intern, or psychological assistant (Evidence Code 1010).
- Psychotherapist-patient privilege—The relationship beween psychotherapist and patient is one that has been viewed as special and unique. To encourage a free and unrestrained exchange of communication between a psychotherapist and his or her patient, society has sought to protect this exchange from being disclosed to [Page 177]anyone. The patient can prevent disclosure to third parties except under very narrow exceptions (Evidence Code 1014).
- Psychotherapy—As defined by the laws of the state of California, psychotherapy is defined as “the use of psychological methods in a professional relationship to assist a person or persons to acquire greater human effectiveness or to modify feelings, conditions, attitudes, and behaviors which are emotionally, intellectually, or socially ineffectual or maladjustive.”
- Subpoena—This is a written legal order requiring a person to appear in court to testify and/or produce certain written records.
References[Page 178]1993). The danger-to-self-or-others exception to confidentiality (ACA Legal Series, Vol. 8). Alexandria, VA: American Counseling Association., & (American Association for Marriage and Family Therapy. (1991). AAMFT code of ethics. Washington, DC: Author.American Counseling Association. (1995). Code of ethics and standards of practice. Alexandria, VA: Author.American Psychiatric Association. (1989). Principles of medical ethics, with annotations especially applicable to psychiatry. Washington, DC: Author.American Psychological Association. (1981). Specialty guidelines for the delivery of services by clinical psychologists. American Psychologist, 36, 640–651. http://dx.doi.org/10.1037/h0078377American Psychological Association. (1982). Ethical principles in the conduct of research with human participants. Washington, DC: Author.American Psychological Association. (1987). General guidelines for providers of psychological services. 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L.Garfield (Eds.), Handbook of psychotherapy and behavior change: An empirical analysis (, & (2nd ed.). New York: John Wiley.1988). [Letter to the California State Psychological Association].(April 6, [Page 179]CAL. Health and Safety Code Sections 123110; 123105; 123115; 123130; 1231451977). Intensive psychotherapy of the borderline patient. New York: Aronson.(1980). Manual for clinical psychology practicums. New York: Brunner/Mazel.(1979). Malpractice: A guide for mental health professionals. New York: Free Press.(1973). Some suggestions to psychiatrists for avoiding legal jeopardy. Archives of General Psychiatry, 29, 699–701. http://dx.doi.org/10.1001/archpsyc.1973.04200050104018(Everstine, L., & Everstine, D. S. (Eds.). (1990). Psychotherapy and the law. New York: Grune & Stratton.1988). Record-keeping practice of clinical and counseling psychology: A survey of practitioners. 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[Letter from the American Psychological Association Insurance Trust]., & (June, [Page 181]1977). The technique of psychotherapy. New York: Grune & Stratton.(1988). Protecting your mental health practice: How to minimize legal and financial risk. San Francisco: Jossey-Bass.(1984). The law and the practice of human services. San Francisco: Jossey-Bass.et al. (Other ResourcesConfidentiality of Medical Records Update
- Brandt, Mary
- Maintenance, disclosure, and redisclosure of health information
- American Health Information Management Association
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- Tomes, Jonathan
- Healthcare records management: Disclosure and retention
- Probus Publishing Co.
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- Confidentially speaking
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- Oregon Health Information Management Association
- c/o MYRIAS Resources
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About the Authors[Page 187]
Mary E. Moline, Ph.D., is Professor and co-Chair of the Department of Family Psychology at Seattle Pacific University. She is a licensed marriage, family, and child counselor in California. She received her Ph.D. in marriage and family therapy from Brigham Young University and her doctorate in public health from Loma Linda University. She is a clinical member and approved supervisor of the American Association for Marriage and Family Therapists and has also taught at the graduate level for 14 years and for 2 years at the undergraduate level (California State University, Fullerton). She has coauthored a book on ethics and malpractice with Drs. Austin and Williams, published additional articles and chapters on such subjects as ethics, group, and family therapy, and has presented at local, national, and international conferences on legal and ethical issues, treatment of divorce, and cultural issues.
George T. Williams, Ed.D., is Professor of Counselor Education and Coordinator of the School Counseling Programs in the Department of Education, College of Graduate and Professional Studies at The Citadel, Charleston, South Carolina. He is former Professor and former Chair (1991–1994) of the graduate Department of Counseling at California State University, Fullerton. He is a nationally certified counselor and a licensed psychologist in California and [Page 188]Minnesota and had a part-time private practice in Corona, California prior to moving to South Carolina. He has regularly tought a course titled “Professional, Ethical, and Legal Issues in Counseling.” He has practiced as a certified elementary and secondary school counselor, college counselor, counselor educator, counselor supervisor, and/or psychologist in the states of Pennsylvania, Ohio, Minnesota, Louisiana, and California. He is founding editor of the Journal of Counseling and Human Service Professions. Within the past 15 years, he has given over 75 presentations at state, regional, and national professional conferences and has also taught over 45 different counseling and psychology courses at the undergraduate, master's, and doctoral levels. He was recipient of the Post-Secondary Counselor of the Year Award for 1986–1987 from the Louisiana School Counselors Association and, most recently, the Award for Contributions to Psychology in 1996 from the Inland Psychological Association, a chapter of the California Psychological Association. He chaired the state ethics committee for the Minnesota Association for Counseling and Development (1984–1985) and the national ethics committee for the Association for Specialists in Group Work (1987–1990). He served as state president for the Association for Counselor Education and Supervision in Minnesota (1985) and in Louisiana (1986–1987). He also served as state president for the California Association for Specialists in Group Work (1990–1993).
Kenneth M. Austin, Ph.D., is a licensed psychologist and marriage, family, and child counselor in California. He has over 38 years of experience in the mental health field. He served as Director of Clinical Services for the San Bernardino County Probation Department. In 1976, he entered full-time private practice. He was an instructor in law and ethics at Loma Linda University from 1982 to 1995 and has also taught courses at San Bernardino Valley College, University of Redlands, University of California at Riverside, and California State University, San Bernardino. He chaired the California Psychological Association Ethics Committee in 1982, 1983, and 1988. In 1984, he was presented the Silver Psi Award by the California Psychological Association. During the [Page 189]1980s, he conducted workshops in law and ethics and record keeping in California, Nevada, Texas, Oregon, New Mexico, Utah, and Pennsylvania. In 1996, he conducted a mandatory continuing education workshop on record keeping for California psychologists. He is a member of the American Psychological Association, the California Psychological Association, the Inland Psychological Association, and the American Board of Forensic Examiners of which he is a Board-certified forensic examiner. Since 1984, he has served as an expert witness for the attorney general of California.