!-2 page APA style single spaced 12 font.
Article ReviewApa style
You will write three article reviews and if you choose, one extra credit article review. You will select the article yourself by searching the UWA Library Databases. The article you choose should be a research article (has a hypothesis that is empirically tested). Pick an article relevant to a topic covered in the weekly readings. Each review is worth 15 points. The review should be 1-2 single-spaced pages in a 12-point font. It is in your best interest to submit your review before it is due so you may check your originality report and correct any spelling and grammatical errors identified by the software program.
The purpose of the review is to provide students knowledge of how research is conducted and reported. The main part of your review needs to include the following information. Please comment on these aspects of the article as part of your review. Provide only the briefest summary of content. What I am most interested in is your critique and connection to weekly readings.
Reference. Listed at the top of the paper in APA style.
Introduction. Read the introduction carefully. The introduction should contain:
· A thorough literature review that establishes the nature of the problem to be addressed in the present study (the literature review is specific to the problem)
· The literature review is current (generally, articles within the past 5 years)
· A logical sequence from what we know (the literature review) to what we don’t know (the unanswered questions raised by the review and what this study intended to answer
· The purpose of the present study
· The specific hypotheses/research questions to be addressed.
· State the overall purpose of the paper. What was the main theme of the paper?
· What new ideas or information were communicated in the paper?
· Why was it important to publish these ideas?
Methods. The methods section has three subsections. The methods sections should contain:
· The participants and the population they are intended to represent (are they described as well in terms of relevant demographic characteristics such as age, gender, ethnicity, education level, income level, etc?).
· The number of participants and how the participants were selected for the study
· A description of the tools/measures used and research design employed.
· A detailed description of the procedures of the study including participant instructions and whether incentives were given.
Results. The results section should contain a very thorough summary of results of all analyses. This section should include:
· Specific demographic characteristics of the sample
· A thorough narrative description of the results of all statistical tests that addressed specific hypotheses
· If there are tables and figures, are they also described in the text?
· If there are tables and figures, can they be interpreted “stand alone” (this means that they contain sufficient information in the title and footnotes so that a reader can understand what is being presented without having to go back to the text)?
Discussion. The discussion is where the author “wraps up the research”. This section should include:
· A simple and easy to understand summary of what was found
· Where the hypotheses supported or refuted?
· A discussion of how the author’s findings compares to those found in prior research
· The limitations of the study
· The implications of the findings to basic and applied researchers and to practitioners
Critique.
In your opinion, what were the strengths and weaknesses of the paper or document? Be sure to think about your impressions and the reasons for them. Listing what the author wrote as limitations is not the same thing as forming your own opinions and justifying them to the reader.
· Were the findings important to a reader?
· Were the conclusions valid? Do you agree with the conclusions?
· If the material was technical, was the technical material innovative?
Conclusion.
Once you provide the main critique of the article, you should include a final paragraph that gives me your overall impression of the study. Was the study worthwhile? Was it well-written and clear to those who may not have as much background in the content area? What was the overall contribution of this study to our child development knowledge base?
APA Format Review
If you are unfamiliar or a bit “rusty” on your APA format, you may want to use the tutorial available through the APA website which is listed on your syllabus.
Grading Criteria
I will grade your paper based upon:
· How well you followed directions (as indicated in this page)
· How thoroughly you used examples to support the critique
· How accurately you used APA format
· your organization, grammar, and spelling
· Integration of assigned weekly readings
The American Journal of Family Therapy, 40:
369
–384, 2012
Copyright © Taylor & Francis Group, LLC
ISSN: 0192-6187 print / 1521-0383 online
DOI: 10.1080/01926187.2012.677705
What Are the Confidentiality Rights
of Collaterals in Family Therapy?
ELIZABETH M. ELLIS
Private Practice, Atlanta, Georgia, USA
The privacy rights of collateral family members constitute one of the
most complex ethical issues in the field of family therapy. The author
opens with four case studies which illustrate some of the dilemmas.
The opening section reviews the APA Ethics Code on this topic,
followed by an in depth analysis of confidentiality issues in marital
therapy and the special ethical dilemmas of high conflict, child
custody cases. The author reviews the scant case law on this topic
and closes with a set of best practices guidelines for the clinician.
CASE #1
Psychologist X was the treating therapist for a 13 year old girl who had been the
subject of an intense and bitter child custody dispute. Treatment was initiated
by the mother. As part of the child’s treatment, the psychologist met with the
mother from time to time to provide feedback and recommendations. In some
of these meetings, the mother disclosed that she was still struggling with her
alcohol addiction. The father requested a meeting with the psychologist and
asked for a complete copy of the daughter’s treatment record. The psychologist
refused on the grounds that he had to shield the mother’s disclosures from the
father. The father sought consultation from Psychologist Y about his rights.
Psychologist Y advised the father that since he had joint legal custody of the
daughter, he had a legal right to the entire record, including the mother’s
individual visits with Psychologist X. The father left Psychologist Y’s office
stating he intended to file a complaint against Psychologist X with the state
licensing board.
Q. Does the father have a basis for a complaint against Psychologist
X? Should Psychologist X have given the entire record to the father? If he
Address correspondence to Elizabeth M. Ellis, Ph.D., 2400 Pleasant Hill Road, Suite 165,
Duluth, GA 30096. E-mail: elizabethphd@bellsouth.net
369
370 E. M. Ellis
had done so, and it had an adverse impact on the mother’s custodial rights,
would she have a basis for making a complaint against Psychologist X?
CASE #2
A couple was in the process of divorcing and were litigating over custody of
their eight year old child. The father took the child to Psychologist B for treat-
ment without the knowledge or consent of the mother. He hoped to establish
that the mother was mentally unstable and that her condition put the child
at risk in her care. The mother, in treatment with Psychologist Y, found out
about this and asked what she should do about it. She was advised by Psy-
chologist Y to seek a meeting with Psychologist B in which she would request
the boy’s diagnosis, the presenting problems, and the goals in treatment. Psy-
chologist Y also advised her that she was well within her rights to ask for a
copy of the child’s records. The mother did so, but Psychologist B said he had
met several times individually with the father in conjunction with the child’s
treatment, and that he had to consider how to release the child’s records to
her. He finally met with the mother and gave her a copy of the child’s records
but redacted (blacked out) all comments that the father made about himself
in his meetings with Psychologist B, citing doctor-patient privilege.
The mother returned to treatment with Psychologist Y and asked, “Is this
permissible for him to do this?” Psychologist Y advised the mother that under
the law in the state she had a right to everything in the child’s file, and that
Psychologist B had acted improperly. The mother considered whether to file a
formal complaint against Psychologist B, to demand the full record, and/or
to advise Psychologist B to stop treatment of her son.
Q. Was Psychologist B correct in redacting the boy’s records before
releasing them to the mother? Should he have consulted an attorney? If he
had not redacted the record, could he have exposed himself to a potential
lawsuit by the father for failing to notify him that he had no privilege when
he was being interviewed?
CASE #3
A woman sought treatment for depression with Psychologist Y, complaining of
emotional distress about her marriage, especially with regard to the problem
of her husband’s drinking. Over a series of office visits, she detailed a pattern
of behavior on the part of her husband that included withdrawal from the
family on a nightly basis while he drank excessively. She also discussed his
job losses due to his excessive drinking, losing his temper with the children
when drinking, concerns about his drinking and driving with the children
in the car, etc.
Confidentiality Rights of Collaterals 371
The husband then came in with his wife for a series of five conjoint
marital sessions to try to address the marital problems and his use of alcohol.
The marriage continued to deteriorate and the couple separated. The husband
sought custody of the two minor children on the basis that his wife was
mentally unstable. The wife sought custody of the children, alleging the father
was unfit because of his drinking. The wife’s attorney asked Psychologist Y to
testify about her mental stability, her diagnosis, the treatment plan, and her
prognosis.
In pretrial motions, the husband’s attorney requested that Psychologist
Y be barred from disclosing any information from the conjoint visits, citing
doctor-patient privilege. The mother’s attorney argued that the husband was
a collateral family member and thus had no privilege. The judge took it under
advisement. One week later, the judge issued his ruling and sustained (agreed
with) the husband’s attorney’s motion. The judge did so on the premise that
the husband had the privilege because he “perceived that he was a patient” of
Psychologist Y.
Q. Is a spouse in conjoint marital sessions a patient or a collateral family
member? If the spouse is a collateral family member, does he own a privilege
regarding his remarks?
CASE #4
Following a bitter custody battle, the court awarded care of A 15 year old boy
to his father (see: Ellis, 2009). Treatment was initiated with Psychologist Y
who then had one office visit with the father to obtain history, and two office
visits with the adolescent. The mother then requested the therapist terminate
treatment, and the psychologist complied. One year later the mother requested
the boy’s records in order to use them in a libel suit against the father. The
father, consulting with the adolescent, said the boy didn’t wish the records to
be released, citing fear of reprisal from the mother. Psychologist Y attempted to
strike several compromises with the mother, but was unsuccessful. The mother
then filed a complaint against Psychologist Y with the state licensing board.
The board heard the case and ordered Psychologist Y to “turn over the
boy’s records” to another professional who would review them and pass them
on to the mother. Psychologist Y complied but did not turn over the notes of the
meeting with the father. Given the court’s ruling in Case #3, concerned that
the father may “perceive that he had a doctor-patient privilege,” Psychologist
Y interpreted the board’s order narrowly. Psychologist Y reasoned that the
court would have to issue a ruling on the status of the notes with the father,
since they lie in a gray area before the law.
Four years later the mother filed a petition seeking notes of the meeting
with the father, and any and all reports, journals, and documents the father
may have given the psychologist. The boy, now 19, submitted a statement in
372 E. M. Ellis
writing requesting that nothing from his file be released to his mother. The
mother’s attorney pushed forward with a subpoena to depose Psychologist Y
and demand the records. Psychologist Y’s attorney requested a hearing before
a superior court judge, in order to obtain a ruling in the case. The judge heard
arguments and ruled that the notes of the meeting with the father, and the
documents given to the psychologist by the father, were not protected by the
boy’s privilege, and that they should be turned over to the mother. In effect,
the court ruled that a collateral family member had no privilege and that a
patient’s privilege is limited only to direct communications between the doctor
and the patient.
Q. Was the judge correct in her ruling? Can the patient assert the privi-
lege over all materials contained in his/her file? Or is the privilege limited to
only those direct communications between the patient and the psychologist?
INTRODUCTION
The privacy rights of patients and other family members in marital and family
treatment cases is one of the most complex areas at the intersection of law
and ethics. As the cases above indicate, psychologists do not have clear
guidelines as to how to handle requests for records that involve notes by
and about family members who participate in a patient’s treatment. Taking
a term from forensic psychology, we refer to these as “collateral” family
members. Family therapists typically use their best judgment to arrive at
a solution which they hope will appease various competing interests. In
so doing, they easily run afoul of angry family members, licensing boards
and the courts. Even judges, after researching legal precedents, may issue
different rulings from one case to the next.
In general, most of the papers written on the subject of confidentiality
rights in psychotherapy refer to individual, adult psychotherapy patients. The
issue of who is the “patient” is simple and clear in those cases. The patient is
the one who is requesting treatment, who is given a diagnosis and treatment
plan, who signs the informed consent agreement, whose name is on the
chart, whose name is on the insurance claim and on any bills which are
mailed to the patient. When copies of records are requested, it is clear that
only the patient can give permission to release them, unless compelled to
do so by judicial order. Doverspike (2008); Knapp and VandeCreek (2003);
and Bennett et al. (2006) are good general references in this area of ethics.
In the case of marital therapy, the issue of who is the patient, and thus
who owns the privilege, is not as clear. One or both of the couple may
be considered the “patient” in a clinical sense. Many clinicians may view
the couple seeking treatment conceptually as a dysfunctional dyad, and the
clinician will craft interventions with that perspective in mind. In fact, in
this author’s experience, many, if not most, couples who request marital
Confidentiality Rights of Collaterals 373
therapy do so with the expectation that “both of us” are the patient. They
may use language such as “we need help.” This clinician has observed that
many couples go so far as to put both names in the patient space on the
application in order to be fair and balanced in their presentation.
Similarly, in family therapy, the therapist may refrain from designating
a particular member of the family as a patient, and may convey the view
to the family that the whole family, or perhaps some subsystem of the
family—including stepparents and grandparents for example—is the patient
in a clinical sense. This is often understandable and agreeable to the family.
Many families requesting family therapy will make requests such as “we all
need help getting along as a family.” Some request help for a subsystem,
such as “My new husband needs help getting along with my teenage son.”
Even more unclear but quite common are requests such as “My husband
and I are sleepless, stressed, and fighting over how to handle our daughter
who is using drugs again.” Some families will ask for multiple authorizations
from the health insurance plan and fill out multiple patient applications “so
we can all be the patient.”
While this may be desirable from a clinical perspective to regard couples,
or dyads, or whole families as the therapeutic unit, and while it may fit with
the perspective of the treatment requests, this collides with the realities of
third party reimbursement and with the courts. From the perspective of the
health insurance company, mental health billing must fit the medical model.
Only one person in the room at the time the service is rendered is the patient.
In order to be a patient, the person must request treatment if an adult (or
one of the parents must request the treatment for the child, if the patient is a
child), and the patient must have symptoms that warrant a DSM IV diagnosis
that is covered by the plan. The treatment must be medically necessary, and
a treatment plan for that individual must be in the patient’s chart.
In the case of marital therapy, the therapist must discuss the issue of who
the patient is fully and openly with the couple in order to come to a mutual
agreement. They must be informed that in order for the health insurance plan
to cover their services, one person must be the patient and they must meet
the above criteria set out by the health insurance plan. This step alone, done
at the outset of treatment, may subtly change the dynamics of how couples
therapy proceeds from that point forward. However, it is an essential part
of the informed consent process. Likewise, the parents of a child who are
requesting family therapy must agree that the child is the patient, and must
be informed as to the child’s diagnosis and the treatment plan.
In an idealized setting where all clients pay for psychotherapy out of
pocket, the therapist may draw up individualized informed consent agree-
ments which specify that both marital partners (or life partners) have a
privilege to the records of their couples treatment. In the case of family ther-
apy, the parties may sign an agreement which specifies that all of the family
members seen have equal rights to the confidentiality of their remarks in
374 E. M. Ellis
the psychotherapy process and that no records can be released without the
group consent of all the parties.
However, the reality of private practice is far from this ideal. In this
author’s practice in a middle class suburb of a large metropolitan area, a
survey of the three practitioners indicated that less than 5% of their caseloads
were private pay, and those were essentially the uninsured. Less than one
percent of their patient population had private health insurance but chose to
pay out of pocket rather than use their insurance. There are no large scale
studies on the topic of what portion of psychotherapy patients are private
paying patients. The economic reality is that probably the majority of patients
are willing to agree on one person being designated the patient in order to
make use of the health insurance benefits.
Most texts on ethics which address the issue of clarifying who the patient
is simply recommend that the therapist discuss issues of confidentiality with
family members before beginning treatment and to have the parties read and
sign lengthy, detailed informed consent contracts which spell out who owns
the privilege in these cases and who can access the records that accumu-
late from family treatment (Bennett et al., 2006; Doverspike, 2008; Knapp
& VandeCreek, 2003). While this may seem to address the issue legally, it
is a recommendation that is not practical or feasible from the perspective
of one who runs a clinical practice. The early stages of treatment with a
new patient must focus on rapidly identifying the patient’s needs and estab-
lishing a rapport with the patient in the first 50 minutes by understanding,
empathizing, clarifying the problem, setting goals, and offering hope of a
positive outcome. A lengthy discussion of possible adverse legal outcomes
is not what patients are expecting when they enter a psychologist’s office
requesting treatment.
In reality, the issue of who owns the rights to the treatment notes that
are made when collateral family members participate in treatment is rarely an
issue. This author (Psychologist Y) has seen perhaps 4,000 to 5,000 children
and families in treatment, and no disputes over the records have arisen in
cases where divorce conflicts were not part of the landscape. Even in cases
where a couple who was seen for marital therapy is subsequently divorcing,
it would be rare for them to request the records in those cases where they
have no children under the age of eighteen. The opening four cases which
occurred in the course of this author’s practice over the last five years capture
the types of cases in which these dilemmas arise.
PSYCHOLOGISTS’ ETHICAL GUIDELINES
The APA Ethics Code (2002) offers no specific guidelines on the privacy rights
of collateral family members in family therapy. In section 3.10 “Informed
Consent,” the psychologist who is engaged in counseling or psychotherapy
Confidentiality Rights of Collaterals 375
is advised to obtain the informed consent of the “individual or individuals”
using language which is understandable to that adult or child. In section
10.01 “Informed consent to therapy,” this principle is reiterated but made
more specific to patients who are in a treatment setting. Most informed
consent agreements are tailored toward the concept that only one individual
is a patient. In couples therapy, the identified patient signs the consent form.
The other partner may not even review it or be aware of it. When working
with children, it is the parent who presents a child for treatment who typically
reviews and signs the informed consent agreement. The other parent may not
be present and thus may not review it. In cases where parents are divorced,
it is predominantly the parent with primary physical custody who initiates
treatment and who reviews and signs the informed consent agreement. The
other parent, who may even live out of state, may not be aware of it, or see
it, much less sign it.
In section 4.02 “Discussing the limits of confidentiality,” the psychologist
is advised to “discuss with persons. . . (1) the relevant limits of confidentiality
and (2) the foreseeable uses of the information generated through their
psychological activities.” For example, standard informed consent contracts
typically notify the patient that in the event that the person poses an imminent
danger to himself or a clear risk of harm to an identifiable person, or in
the event that the patient discloses acts of abuse toward a child or elderly
person, confidentiality must be waived. Most informed consent agreements
also include language that notifies the patient that in the event of a personal
injury lawsuit, the psychotherapy records will likely be requested and must
be released for the suit to proceed.
Section 10.02 “Therapy involving couples or families,” addresses the
complex nature of confidentiality when several persons are involved in
the patient’s treatment. This section advises the psychologist to “clarify at
the outset (1) which of the individuals are clients/ patients and (2) the
relationship the psychologist will have with each person.” This includes the
psychologist’s role and “the probable uses of the services provided or the in-
formation obtained . . .” In this section, most clinician’s notify the patient that
certain kinds of information will be sent to the patient’s insurance plan, for
example.
Some family therapists have the “patients” sign a contract in which they
agree to have the records sealed in the event of a divorce or litigation and
that they will not subpoena the therapist to testify for or against either one in
a legal matter (Doverspike, 2008; Ellis, 2006). Such agreements, while noble
in aspiration, are not legally enforceable. Under HIPAA, Section 164.524, the
identified patient is entitled to his/her entire record. The person who is the
patient in couples therapy owns the legal rights to the records. If the patient
is a child or adolescent, and if the parents are married to each other, the
parents are joint custodians of the child’s records and both may be entitled
to a copy of the entire record. If the parents are divorced, the most recent
376 E. M. Ellis
court order regarding the custodial rights of the parents will govern who
has access to the records. The exceptions may be where the adolescent is a
“mature minor” (age 15 or older), and where the parent is not acting in the
child’s best interests and thus not entitled to act as the child’s representative
under HIPAA (Section 164.502, para.s (g) 5, I and ii). Seeking the child’s
records specifically for use in a child custody proceeding has been defined,
by some courts, as not acting in the child’s best interests. Exceptions are
also made in states where adolescents’ rights to their treatment records have
prevailed in the courts (see: Ellis, 2009, for a fuller discussion).
SPECIAL ISSUES IN COUPLES THERAPY
The issue of who is the patient and who is the collateral family member in
couples therapy is complex and controversial. In the past the advice from
ethics experts was to see couples together in all visits and advise them
that no information will be released from their file without the written con-
sent of both parties (Harris, 1997). This policy was endorsed and reiterated
by Doverspike (2008, p. 134) when discussing policies on release of in-
formation. What is lacking here is the recognition that only one person,
legally, is the patient. Thus, this agreement is not binding. In fact, Dover-
spike (2008) contradicts this position in his discussion on identifying “Who is
the client?” Here he suggests that when bringing a collateral family member
into a client’s session, “it is important to obtain informed consent of the col-
lateral after clarifying the collateral’s role” (p. 94). He suggests the reader use
the APAIT Outpatient Services Agreement for Collaterals available at http://
www.apait.org.
Bennett et al. (2006) are more direct about who is the client or patient
and who is the collateral contact. In a case study which they present, a wife
is seen for individual therapy and her husband joins her for couples sessions.
The psychologist is advised to explain to the husband at the outset that the
wife is the patient and that the husband is there “as a collateral contact only,
to further the treatment of the wife.” (p. 90). Presumably this would offer the
spouse an opportunity to ask questions about whether his remarks would
be privileged.
This is the same scenario as that presented in Case #3. Psychologist Y
could have notified the husband that he was a collateral contact and thus
had no basis to assume that his remarks were confidential. In fact, some legal
experts (Corey, Corey, & Callanan, 2007) assert that confidentiality is lost at
any point where there is a third party in the consulting room (the patient
and the therapist being the first and second parties). The husband and wife
in Case #3 both heard the remarks of the other and both were free to testify
to the court as to what was disclosed in the office visits. The husband might
have disclosed less information about his drinking habits had he been put
Confidentiality Rights of Collaterals 377
on notice. However, it is equally likely that he did not anticipate a divorce,
much less a child custody dispute, and would have freely disclosed such
information, even if he had been given advance notification.
In a recent newsletter article, APA’s ethics expert, Jeff Younggren, and
attorney Stephen Hjelt (2010), addressed the issue of collaterals in marital
therapy. They argue that marital therapy is properly an endeavor in which
both parties are seen together, neither is the identified patient, thus no
claim is filed with a health plan, and both parties are joint custodians of the
record. In fact, Younggren and Hjelt go so far as to assert that if the therapist
identifies one of the parties as a “patient,” and upgrades their symptoms to
the level of a clinical diagnosis, so that the marital therapy is covered by
the health plan, then the health insurance company has been deceived into
paying for a “non covered service.” Thus, it has adequate grounds to charge
the therapist with fraud and professional misconduct and take legal action.
Younggren and Hjelt assert that the practice of identifying one person
in couples therapy as the patient also runs the risk of encountering ethical
dilemmas regarding the privacy rights of the non-patient in marital therapy.
If one person is identified as the patient, and the other is designated a non-
patient, then the patient has sole access to the records. If the marital therapy
process fails, and the couple proceeds toward divorce, the identified patient
can use the records against the non-patient of the couple. If the non-patient
thus loses the protections afforded in traditional individual treatment and
thus loses control of his/her records, Younggren and Hjelt argue that the
therapist’s conduct could be seen as a “violation of professional standards
and of the duty owed to the client/patient,” thus opening the door for the
non-patient collateral to file a lawsuit against the therapist.
While Younggren and Hjelt’s model for marital therapy is ideal, it is not
realistic. This psychologist would argue that only a small, affluent minority
of clients would seek marital therapy and be willing to pay the therapist’s
fee out of pocket. The vast majority of middle class couples seeking marital
therapy fully intend to use their health insurance plan to cover the services,
and demand that the service be offered to them in that manner. Typically,
at least one of the parties meets criteria for a DSM IV diagnosis of Adjust-
ment Disorder, and that person may qualify as the identified patient. What
Younggren and Hjelt consider fraud—seeing the couple together, identifying
one as the patient, and filing the claim with the patient’s health insurance
plan—is likely the prevailing norm in clinical practices today. The only part
of the process that may be fraudulent is fabricating a diagnosis for one of
the parties in couples therapy in order to obtain coverage for a service that
would not otherwise be covered.
Younggren and Hjelt’s paper generated “questions and concerns” from
many readers. In a follow-up article, Younggren and Harris (2011) clarified
their position. They acknowledge that if the identified patient actually did
meet criteria for a DSM IV diagnosis (Axis 1-IV), then this billing practice
378 E. M. Ellis
would be acceptable. However, their position as to who owns the privilege
in this case is unclear. They state that “confidentiality issues are matters of
concern with this type of treatment.” (p. 9). In “true couples therapy” the
protection of privacy of both parties is crucial for success. They suggest that
in this model of couples therapy—where one person is the identified patient
and the partner is the collateral contact—issues of informed consent should
be discussed at the outset “along with the fact that no information about or
records of the treatment will be released without both parties’ permission”
(p. 9). In reality, if the identified patient requests his or her records, they must
be granted, regardless of the wishes of the spouse or partner. HIPAA strength-
ened the patient’s rights to obtain their records, not in part, but in their en-
tirety. Younggren and Harris state that “a majority of states would respect the
privilege of both parties equally,” but give no citation. They acknowledge
that some states, such as New York, and Washington, “may be different.”
SPECIAL ISSUES IN TREATING CHILDREN FROM HIGH
CONFLICT FAMILIES
Treating children who come from high conflict families is a complex and high
risk endeavor (Bennett et. al, 2006). Unlike typical families who may present
the child for treatment, and who both have the same goal—reduction of
the child’s symptoms—parents in high conflict families often have not only
different agendas, but competing agendas (Ellis, 2006). One parent may
exaggerate the child’s symptoms in order to portray the other parent as a
poor caregiver. Likewise, one parent may minimize the child’s symptoms and
even deny symptoms, in an effort to put forth a positive picture of themselves
as good caregivers, and to “look good” at trial. One parent may not be
seeking treatment, but intends to use the professional to gather information
about what goes in the other parent’s home and to document a pattern of
abuse or poor judgment by the other parent. It is common for one parent to
seek treatment for the child without the knowledge or permission of the other
parent. In all these cases, the unstated goal is to use the documentation to the
parent’s advantage in a court proceeding. In many of these cases, the parent
also intends to subpoena the family therapist to testify at a subsequent trial.
In some cases, the parents have been court ordered to participate in family
therapy. They have followed the court order with bitterness and resentment
and have no interest in furthering any goals in treatment.
In cases where a couple is contemplating divorce, or where parents are
in the midst of divorce, or have litigated over child custody in the past, or
those who are re-litigating post-divorce due to a change of circumstances,
the risk of a dispute over the records may be fairly high. The psychotherapy
notes can be requested specifically for the purpose of gaining legal advantage
over a family member. Parents who have joint legal custody of their children
Confidentiality Rights of Collaterals 379
jointly own the privilege and can demand copies of the child’s records in
most states, including the notes of meetings with collateral family members
and any and all materials that were given to the child’s therapist. These
records may include the parent’s personal journal of events that had occurred
with the child. They may include statements the parent may have made to
the therapist which, if revealed, would be very detrimental to their case
legally. Examples would be the parent’s statement that he or she intended
to block the other parent from having contact with the child, or that they
intended to go into hiding with the child. They may include damaging self
disclosures such as the parent’s admission that his or her current marriage
is deteriorating, that he or she consumed too much alcohol in the child’s
presence, or lost their temper with the child and became verbally abusive.
These kinds of disclosures can be devastating to a parent’s position in
child custody litigation. Some psychotherapists may decline to release the
records to a parent, citing the child’s confidentiality. However, this is not
defensible. Most state laws uphold parents’ rights to their children’s records.
In fact, HIPAA (the Health Insurance Portability and Accountability Act) also
strengthened the rights of parents to all of the materials in their child’s
treatment files (see: HIPAA, Privacy Rule, Section 164.502).
There is very little case law on the legal rights regarding collateral family
members who are seen as part of a child’s treatment. The Georgia case of
Mrozinski v. Pogue (1992) has a direct bearing on this issue. In this case Mr.
Mrozinski’s 14 year old daughter was in treatment with Dr. Pogue, an Atlanta
psychiatrist, for drug addiction and other mental health problems while she
was a resident of an inpatient psychiatric program. The drug use began while
she was in her mother’s care, and the court had intervened and placed her in
the custody of the father. The father participated in family therapy while the
daughter was hospitalized. Upon release, the mother obtained the discharge
summary. Dr. Pogue also gave the mother an affidavit which contained
negative remarks about Mr. Mrozinski’s relationship with his daughter and
recommending custody be transferred to the mother. Mr. Mrozinski sued
Dr. Pogue claiming that he received treatment from Dr. Pogue by virtue
of participating in family therapy, and that his rights were violated. Dr.
Pogue asked for summary judgment (immediate dismissal), asserting that
the only patient was the 14 year old, and that he had no doctor-patient
relationship with Mr. Mrozinski. Summary judgment was granted. Mrozinski
filed an appeal. He countered that he had sought advice and assistance
from Dr. Pogue and that he was assured the visits were confidential. The
affidavit recommended that he “continue therapy,” implying that he had
received treatment from Dr. Pogue. The appellate court upheld the lower
court’s ruling, and the suit for wrongful disclosure was dismissed. Thus, in
this case, the court ruled that a collateral family member had no rights to
the confidentiality of statements which were made by them in the context of
family therapy.
380 E. M. Ellis
This case illustrates the myriad of dilemmas regarding who is the patient,
who has the rights to what information, and how it is to be used. In Case #1,
the mother sought legitimate treatment for her child but disclosed sensitive
information to the therapist, not knowing that the father could have access
to that information and use it against her. In Case #2, the father presented
the child for “treatment” with questionable motives and without the mother’s
knowledge. In this case, however, he felt that he, too, was the patient and
had some rights to the confidentiality of his remarks to the therapist. Family
therapy in such contexts is a virtual minefield.
Bennett et al. (2006) recommend that one not see a child in such a
situation without the knowledge and permission of the other parent. These
authors recommend that as with cases of family therapy with multiple family
members, one would do well to have an informed consent agreement that is
specific regarding requests for information about the child, requests for the
child’s records, and what information in particular is to be regarded as part
of the child’s file.
BEST PRACTICES
From the previous discussion, the following are offered as suggested guide-
lines for the clinician regarding the confidentiality rights of collateral family
members in couples and family therapy.
Identify High Risk Cases From the Outset
This is a small subset of most family therapy cases, but many can be recog-
nized at the outset. These are parents who are threatening to divorce, are in
the midst of a divorce, or have divorced and are contemplating re-litigating.
They are characterized by high levels of bitterness and rancor, allegations of
abuse and betrayal, and vague threats to take legal action. They are may have
a past history of litigating against each other and/or filing complaints against
other professionals—e.g., other therapists, attorneys, judges, guardians, and
child custody evaluators.
In the above case studies, Case #1 had had a prior history of child
custody litigation and could have been identified as a high risk case. The
parents in Case #2 were in the midst of a divorce, and were the parents of a
five year old child, and also could have been identified as a high risk case.
Case #3 could not have been identified at the outset because it began as
a routine individual psychotherapy case. Case #4 had had a history of past
child custody litigation, but it had been resolved, and there was no current
litigation pending. Thus the dispute over the child’s records might or might
not have been anticipated.
Bennett et al. (2006) go so far as to recommend that one may ultimately
develop a practice of refusing to take such cases. This may not only be
Confidentiality Rights of Collaterals 381
for the protection of the therapist who has a high risk of being sued in
such cases or subject to a licensing board complaint, but may also be an
acknowledgement of the reality that good treatment of the child cannot
take place in such an incendiary atmosphere. Since all the case studies
presented at the outset which focused on disputes over records and the
rights of collaterals, the clinician who avoids these types of cases altogether
will minimize the possibility of being involved in such a dispute.
Do a Careful and Thorough Informed Consent Process
in High Risk Cases
Identifying high risk cases at the outset and having them sign informed
consent agreements would be the ideal. The informed consent agreement
should specify clearly who the patient is and who has access to the records.
In couples and family therapy cases, the parties may be asked to sign agree-
ments not to request copies of the record if the purpose is to use them in
court proceedings, or not to subpoena the therapist to testify for one side in
court. As stated before, it is rendered moot by state law and HIPAA.
If the therapist wishes to shield the spouse of the patient, or the child
in treatment, or one of the parents who participated in the child’s treatment
from possible harm, the therapist might first defer to the informed consent
agreement in the interest of coming to a mutually satisfying solution. If this
fails, the next alternative is for the therapist to retain an attorney and file a
motion to quash, or dismiss, the subpoena. In such cases a hearing would be
scheduled and arguments would be made from both sides as to whether the
therapist’s objection to the subpoena (or the objection of one of the parties
in the case) should be sustained (upheld) or over-ridden. The judge has the
option to review the records in camera (in the privacy of the judge’s cham-
bers) before ruling on the issue. Another alternative, if subpoena-ed to testify
in court, is to appear at the hearing with the requested records but to raise an
objection to the judge regarding the release of the records. Providing a copy
of the informed consent agreement to the judge may be very advantageous.
Most couples who seek marital therapy, as well as parents who seek
family therapy with their child, do not realize that if the parties are involved in
child custody litigation at a later date, they may have to surrender all rights
to these psychotherapy records. It is common practice for child custody
evaluators to demand that the parents surrender all rights to all previous
psychotherapy records, including records of individual treatment (see: Ellis,
2010, for a fuller discussion). If they were made aware of this from the outset,
they might be more careful with the disclosures that they make in individual,
marital, and family therapy. Therefore, the clinician may want to go so far as
to include a warning in the informed consent agreement that begins, “In the
event of a divorce and the litigation that may ensue, and/or child custody
litigation, you might have to waive your rights to confidentiality whether you
382 E. M. Ellis
are the patient or a collateral family member participating in your spouse’s
or your child’s treatment.”
Minimize Individual Meetings With Collateral Family Members
Many family therapists are aware of the possibilities of ethical dilemmas that
may occur when the therapist meets with one member of a couple or family
in treatment (Margolis, 2008). Material may be disclosed in confidence that
the family member wishes not to be shared with the other family members.
This person, who is not the patient, then requests that this material be
regarded as “confidential.” Many couples therapists are prepared for this and
either refuse to see one partner alone or explain at the outset that there is
no privilege that extends to the notes of that session. The clinician who is
treating a couple who have young children and who are moving toward
divorce may want to be especially cautious about seeing the non-patient
partner alone.
In cases where a child is the patient, Bennett et al. (2006) recommend
that the clinician always have the consent of both parents at the outset. It
would be wise also to meet with both parents jointly when a feedback session
is needed. However, refusing to meet with one parent may be difficult to
enforce, especially where the parents are separated or divorced and are not
speaking to each other. One parent may be only marginally involved in the
child’s life. Even when both parents intend to be present at the session, one
parent may have a busy work schedule and can’t be in attendance at the
parent meeting.
In Case #1, Psychologist X could have requested to see the divorced
parents together to provide feedback on the child’s treatment. If the parents
had been seen together, it is unlikely that the mother would have disclosed
sensitive information about herself. Similarly, in Case #2, Psychologist B may
have requested to see the parents together to provide history at the outset of
treatment and at the feedback session. It is likely that the father would not
have complied, given that his motive for seeking treatment for the child was
to gather information to use against the mother in his petition for primary
custody. This strategy would, on the other hand, have averted the dispute
over the records.
If One Sees a Family Member Individually, Give
a Cautionary Warning
In Case #1, identified as a high risk case, Psychologist X who was treating
the 13 year old girl might have given the mother a cautionary warning, i.e.,
“I will be taking notes of our session today. Keep in mind that you and the
father both have access to your child’s treatment record. Both of you can at
any time request copies of these notes and I am obligated under state law
Confidentiality Rights of Collaterals 383
to provide them to you or the other parent with joint legal custody. Once I
release these notes to the parents, I have no control over how they may be
used. You or the other parent may provide copies of them to family members,
teachers, attorneys, or officers of the court. There have been occasions when
psychotherapy notes of a child’s treatment have been used against a parent
in a child custody proceeding.” When this author has used such a warning,
the parents have been surprised at first that their remarks were not protected,
then thankful that they were notified ahead of time. In Case #2 and Case
#4, the psychologist could have notified the parent at the outset that their
remarks were not protected. It would have been advisable to document such
notification in the record as well. This might have prevented conflicts that
arose over the records at a later time.
Some psychotherapists may want to use caution in whether to accept
personal materials from the parents to include in the child’s records. Sen-
sitive material such as journals, diaries, emails, letters, greeting cards, pho-
tographs, may be viewed in the session and given back to the parent (or
husband/wife). In Case #4, Psychologist Y was given a large three ring binder
with over one hundred pages of material. It was briefly reviewed and given
back to the father. Thus, when the mother requested it four years later, it was
not in the psychologist’s possession, and the issue of releasing it was moot.
The psychotherapist would have to use his/her judgment as to whether
to write down personal disclosures by the spouse of the patient or the parent
or other family member–disclosures which may be used against them at a
later time. Certainly disclosures from the person’s distant past or which have
no bearing on the patient’s treatment do not need to be written down.
Seek Ways to Shield the Privacy of Meetings With Collateral Family
Members Who Are Seen Individually
Gerald Koocher (2008) and Eric Harris (1997) recommend that notes of
meetings with collateral family members, particularly the parents, be kept in
a separate file. Thus, if one parent requests the “child’s records,” only the
notes in the child’s chart are surrendered, not the notes of separate meetings
with a parent. Both are recognized experts in the area of psychologist ethics
and have conducted seminars on risk management for the APA. APA ethics
expert, Jeff Younggren (2009) was asked about this practice. He stated that
keeping the notes of the meetings with the parents in a separate file was
unethical and improper. All the notes and documents must be kept in one
file. Thus, it appears that three of the top experts in the country may disagree
on this issue.
Another option is to advise the family that when the therapist needs to
meet individually with one parent (in order to obtain history, or be given
an update on progress in treatment), it is best to open a second chart and
account in the parent’s name. The psychotherapist might code the service as
384 E. M. Ellis
a “consultation” since no treatment is rendered. It would not be covered by
the health insurance plan, but the parent would control access to the notes
in their own file.
As stated in the opening remarks, the area of confidentiality rights of
collaterals in family therapy is very complex. Clinical goals, medical billing
procedures, professional ethics, and the law may clash when requests are
made for records. The practice suggestions made here are not agreed upon
by a majority of clinicians and are bound to be controversial. Hopefully, they
will open up a dialogue which will ultimately result in clearer standards in
the future.
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