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(p. 506) Dealing with Third Parties: Legal and Ethical Considerations 

(p. 506) Dealing with Third Parties: Legal and Ethical Considerations
Chapter:
(p. 506) Dealing with Third Parties: Legal and Ethical Considerations
Author(s):

Joe Scroppo

DOI:
10.1093/med:psych/9780190272166.003.0039
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Subscriber: null; date: 21 October 2019

Confidentiality and privilege are foundational elements of psychotherapy. Confidentiality refers to the psychotherapist’s fiduciary duty to maintain the secrecy of a client’s communications—clients need and expect that their psychotherapist will keep secrets and will not disclose any information to third parties. Clients also benefit from the legal “privilege” that attaches to their communications to their psychotherapists—“privilege” is a legal doctrine that prevents the use of the client’s communications to a psychotherapist as evidence in a legal proceeding. For the purposes of this chapter, a third party is defined as any person or entity that is outside of the professional relationship between the psychotherapist and the psychotherapist’s client; a third party is, by definition, not a recipient of the psychotherapist’s services.

Despite the strong ethical, regulatory, and legal boundaries that shield the psychotherapist–client relationship from third-party intrusion, when psychotherapists deliver services to clients, they can often expect to deal with third parties. The confidential and usually privileged relationship between a psychotherapist and a client can be penetrated by various entities, in various ways, and for various purposes.

Usually, a psychotherapist can easily differentiate between a client and a third party. There are situations, however, where another entity hires or directs a mental health professional to deliver services to a recipient. In such cases, the hiring or directing entity may actually be the client (i.e., not a third party), or that entity is at least professionally involved in the relationship between the psychotherapist and the service recipient. The following are examples of such cases:

  • An attorney hires a mental health professional to conduct an evaluation of the attorney’s client with regard to a potential or actual legal matter.

  • An employer hires a mental health professional to conduct a fitness-for-duty evaluation of one of its employees. (p. 507)

  • A court appoints a mental health professional to conduct a child custody evaluation regarding a set of parents and their children.

These situations are highly complex and require that the mental health professional has specialized training and expertise in dealing with them. As a start, mental health professionals dealing with such a situation would be wise to follow the ethical requirements articulated in the relevant standards in their profession’s code of ethics. Representative of these codes of ethical standards, the American Psychological Association’s 2010 Code of Ethics states in Standard 3.07, Third Party Requests for Services:

When psychologists agree to provide services to a person or entity at the request of a third party, psychologists attempt to clarify at the outset of the service the nature of the relationship with all individuals or organizations involved. This clarification includes the role of the psychologist (e.g., psychotherapist, consultant, diagnostician, or expert witness), an identification of who is the client, the probable uses of the services provided or the information obtained, and the fact that there may be limits to confidentiality. (p. 6)

The focus of this chapter, however, is not on cases where there is a third-party request for a mental health professional’s services. Rather, this chapter focuses on the situation where a third party seeks to penetrate the boundaries of, or is invited into, a pending, ongoing, or already-concluded psychotherapist–client professional relationship.

Third-party entities can include the following:

  • The client’s family members or friends

  • The client’s current or potential future employer

  • Insurance companies (health, disability, life)

  • Government agencies (e.g., Social Security)

  • Law enforcement entities

  • Courts or administrative bodies

  • Attorneys representing the client or a third party

  • Other mental health professionals

The ways in which a third party can attempt to penetrate the boundaries of a psychotherapist–client relationship are relatively limited:

  • The psychotherapist has an affirmative mandate to disclose information to a third party without the client’s authorization (e.g., danger to self or others, child abuse, elder abuse).

  • The client or the client’s legal guardian can authorize disclosure of treatment information to a third party.

  • An attorney may attempt to subpoena treatment information.

  • A court may order disclosure of treatment information. (p. 508)

  • A legal mechanism may remove, by operation of law, the confidentiality and privilege that normally attaches to treatment information and thus give a third party access to the treatment record.

Third parties may attempt to penetrate the boundaries of the psychotherapist–client relationship for several reasons:

  • To obtain information about the client

  • To obtain information about the psychotherapist’s conduct (i.e., a licensing board or an insurance company auditor)

  • To exert some influence or control over the client, the clinician, or the psychotherapy (e.g., a family member or spouse of a client seeking to influence the course of the psychotherapy)

Guiding Principles in Dealing with Third Parties

The basic principles of responding to attempted third-party penetration of or involvement with the client–psychotherapist relationship are essentially the same across all situations.

A psychotherapist has a legal and ethical duty to avoid disclosure to others of the client’s communications, or even of the very existence of the psychotherapy relationship, to a third party, unless the client or guardian authorizes the disclosure, or a specific legal authority permits or mandates that disclosure. At the inception of the psychotherapist–client relationship, the psychotherapist informs the client about the circumstances that would permit or require the psychotherapist to disclose information to a third party.

If a third party attempts to penetrate the boundaries of the psychotherapy relationship, the psychotherapist informs the client and seeks the client’s input about how to respond to that attempted penetration. In response to a request or demand to disclose treatment information to a third party, the psychotherapist considers how that disclosure might impact the client and the psychotherapy, and, whenever possible, discusses with the client the potential effects of the disclosure on the client and the psychotherapy.

A psychotherapist can disclose treatment information to others with the client’s or the client’s legal guardian’s authorization to do so, but the psychotherapist takes additional steps before acting on the client’s authorization. Prior to disclosing any confidential information, the psychotherapist informs the client about the general nature of the information that would be disclosed in response to the request or demand (including the presence of any particularly sensitive information), so that the client can make an informed decision about whether to authorize, or continue to authorize, the disclosure; and, in the case of a mandated disclosure, so that the client can make an informed decision about whether to try to block that disclosure. The psychotherapist may also want to encourage the client to consult with the client’s attorney about the making of the disclosure. In the absence of a client’s or a client’s legal guardian’s authorization, the psychotherapist (p. 509) requires the third party to demonstrate the existence of an adequate legal authority that mandates the psychotherapist to disclose the requested information without the client’s authorization.

A psychotherapist, whenever possible, attempts to keep the amount of information disclosed to the third party to the minimum amount necessary to achieve the purpose of the disclosure. The psychotherapist, for example, might offer to provide a brief treatment summary to the third party in lieu of the entire treatment record. A psychotherapist avoids giving opinions to third parties about the client or the psychotherapy that exceed what a psychotherapist can reasonably have an opinion about, or that would put the psychotherapist into an impermissible dual role with the client. For example, the psychotherapist would refrain from offering opinions about who should have custody of a child or about what was the cause of a client’s injuries.

Once there has been a disclosure to a third party, a psychotherapist monitors the consequences of that disclosure on the ongoing psychotherapist–client relationship.

A psychotherapist who adheres to these procedures whenever there is an attempt to penetrate the boundaries of the psychotherapist–client relationship will minimize the risk of an adverse outcome for the psychotherapist and the client. Nevertheless, whenever the psychotherapist is unsure about how to proceed or is faced with a truly novel situation, he or she should seek consultation from knowledgeable colleagues or from an attorney.

When the Psychotherapist Is Mandated to Proactively Disclose Information to a Third Party Without the Client’s Authorization

State laws almost universally mandate that, under certain circumstances, a psychotherapist must proactively disclose to a specified third party certain information contained in a client’s communications to the psychotherapist. The following are the most common circumstances where this affirmative duty to disclose client information arises:

  • Mandated reporting of suspected child abuse to a state or county agency

  • Mandated reporting of suspected elder/dependent person abuse to a state or county agency

  • Mandated reporting to a state agency of a healthcare professional who is impaired and endangering clients, or who is engaging in unprofessional conduct

Generally, the psychotherapist’s failure to make a report when such a report is mandated under these laws will expose him or her to civil and sometimes criminal sanctions.

The psychotherapist must be familiar with the particular mandated reporting duties in his or her jurisdiction. Information about these mandates can be obtained through the therapist’s state licensing board or state professional association. The specific elements of these mandates can vary greatly across jurisdictions. With regard to child abuse reporting, for example, some states limit the mandate to make a report to situations where the alleged perpetrator of the child maltreatment (p. 510) is a caretaker of or lives in the home with the alleged child victim, whereas other states do not impose such limitations. Moreover, the psychotherapist is ethically required to notify the client about these mandated reporting duties at the outset of the psychotherapy.

Although not a mandated reporting duty in the same sense as the previously specified reporting duties, most states have a statutory or common-law provision that permits psychotherapists to breach client confidentiality in order to protect a third party from a current client who communicates to the psychotherapist the intent to inflict serious and imminent physical harm upon that third party (i.e., Tarasoff-type laws). Where such laws exist, they generally do not impose a criminal or civil sanction on a psychotherapist who fails to take steps to protect the endangered third party; instead, these laws usually simply permit the psychotherapist to breach client confidentiality (i.e., they provide an explicit exception to the psychotherapist’s regulation-imposed confidentiality duty), or they simply provide the psychotherapist with immunity from civil or criminal sanctions when the psychotherapist breaches client confidentiality under these circumstances. Nevertheless, these laws tend to implicitly establish the prevailing standard of professional practice, and psychotherapists who fail to take steps to protect a third party when such is permitted (or, in very rare instances, required) run the risk of a successful lawsuit against them by the harmed third party or face the potential of some other adverse action. Consequently, as with explicit mandated reporting duties, psychotherapists should be aware of the “duty to protect” laws in their jurisdiction and should notify the client in advance that they may have to act accordingly if the requisite circumstances arise in the client’s case.

When Disclosure of Treatment Information to Third Parties Will Be Based on the Client’s Authorization

In some situations a client may choose to authorize disclosure of information to third parties. One common example of this is when a client wants to use a third party to pay for the psychotherapist’s services, which usually takes the form of using his or her health insurance plan. Typically, the client, in applying for coverage under a health insurance plan, and in agreeing to the submission of claims to the insurer, has contractually agreed to the disclosure of some and possibly all treatment information to the health insurer for payment and other healthcare operations purposes.

Applying the recommendations above, the psychotherapist would clarify with the client, at the beginning of the treatment relationship, that, by using healthcare insurance, the client has authorized some disclosure to the insurance company. The psychotherapist would be aware of any contractual obligations (e.g., being a contracted provider for the client’s insurance plan) and of the state and federal rules and laws that govern what and how much treatment information the insurance company is entitled to receive for payment and auditing purposes. State laws vary as to what limitations they impose on a third-party insurer’s access to treatment information—some jurisdictions impose relatively strict limits, some do not. Health Insurance Portability (p. 511) and Accountability Act (HIPAA) regulations also impose limits on the nature and extent of what the third-party insurer is entitled to receive, most notably in the form of the “Minimum Necessary Rule,” which mandates that healthcare providers limit the extent of the disclosure to only the amount necessary to fulfill a health insurance company’s legitimate request (see 45 CFR 164.502(b) and 45 CFR 164.514(d)). The essential point is that the psychotherapist should know and understand these contractual and legal limitations on disclosures of treatment information to third-party payers and would inform the client at the outset of the psychotherapy about them.

Continuing to apply the guidelines, the psychotherapist would notify the client when the insurance company actually does request disclosure of any treatment information that exceeds what is typically requested (i.e., more than just a treatment plan or basic claims-related information). Under certain circumstances (e.g., the client is using out-of-network benefits), the client may be able to prevent or limit such disclosures by ceasing to use the insurance plan. In any event, the psychotherapist would actively seek to limit the disclosure to the third-party payer to the minimum necessary to fulfill the purpose of the request, and the psychotherapist would cite the ethical and regulatory standards (e.g., the ethics code of his or her professional association, the HIPAA Minimum Necessary Rule, and/or state law) to the insurance company in an effort to obtain a more narrowly tailored disclosure request from the company. Finally, in advance of taking action, the psychotherapist should discuss with the client what impact the release may have on the ongoing therapeutic relationship as well as what provisions need to be in place if there is no insurance reimbursement.

The following are examples of other situations where the psychotherapist may encounter a client who is considering authorizing, wants to authorize, or is being encouraged by a third party to authorize disclosure of treatment information to a third party. Although these situations vary in some respects, the psychotherapist would generally apply the same principles.

Case 1

A minor client’s parents want specific information about the client’s communications reported to them after each session, including information about the minor’s sexual behavior and substance use.

Although the minor’s parent/guardian is often legally empowered to access the minor’s treatment record without the minor’s consent, the psychotherapist would, at the outset of the psychotherapy, explain that confidentiality is important to the success of the psychotherapy and seek to come an agreement, preferably in writing, with the minor and the parent/guardian about what treatment information will and will not be shared with the parent/guardian. The psychotherapist would limit disclosures to the amount that respects the parent/guardian’s legitimate interest in the psychotherapy but also protects the minor’s confidentiality. The psychotherapist would regularly monitor the effectiveness of this arrangement and seek to modify it as necessary. Because parental legal right of access to a minor patient’s treatment information is a highly jurisdiction-specific matter, especially when parents are divorced, psychotherapists should consult with knowledgeable colleagues or with an attorney when faced with complex scenarios of this type.

(p. 512) Case 2

An adult client’s parents are paying for the client’s psychotherapy and inquire about what is occurring in the psychotherapy because they perceive that they are entitled to updates about its progress and want to make sure that their concerns about the client are being addressed.

The psychotherapist considers how the requested disclosure might affect the client and the psychotherapy, and discusses with the client the potential effects of the disclosure. The psychotherapist would seek to minimize the disclosure to the amount necessary to achieve its purpose without compromising the client’s confidentiality and by trying to limit any counter-therapeutic third-party penetration into the psychotherapy.

Case 3

A client has applied for a job with a governmental national defense agency, and the agency has contacted the psychotherapist and wants the client’s records and an opinion as to whether the client’s psychological condition is inconsistent with the client handling sensitive information.

The psychotherapist would discuss with the client the general contents of the record, or perhaps suggest that the client review the record in its entirety prior to the client authorizing the disclosure to the agency. The psychotherapist would explain to the client that he or she cannot provide an opinion about the client’s fitness for the position, because the client was not evaluated for that purpose. The psychotherapist might also offer to provide a treatment summary to the agency in lieu of the complete record. Finally, the psychotherapist would monitor how this attempted or actual disclosure might affect the continuing psychotherapist–client relationship.

When Disclosure of Treatment Information to Third Parties Is Based on a Subpoena Issued to the Psychotherapist

A subpoena, which is an attorney’s formal demand for a client’s treatment records or for the psychotherapist’s testimony about the client’s evaluation and/or treatment, generally does not, by itself, overcome the confidentiality and privilege that protects a client’s treatment information from disclosure. In most jurisdictions, in order for the psychotherapist to provide the subpoenaed information, the client must simultaneously authorize the disclosure of the information requested by the subpoena, or the court must issue an order directing release of the treatment information. The rules regarding a psychotherapist’s compliance with subpoenas, however, vary by jurisdiction, and psychotherapists should be familiar with those local rules when deciding how to respond when a subpoena for mental health records is received. Generally, the psychotherapist would be wise to consult with an attorney if he or she has any uncertainty about how to respond to a subpoena.

(p. 513) Following the guidelines above, the psychotherapist would notify the current or past client about the receipt of the subpoena and the nature and extent of the information demanded by the subpoena, would remind the client about the contents of the sought information (especially any particularly sensitive information), and would ascertain whether the client wishes to authorize the disclosure of the subpoenaed information. The psychotherapist may also encourage the client to consult with an attorney regarding whether to authorize the disclosure.

If the client decides to authorize the disclosure, the psychotherapist would have the client execute a HIPAA-compliant authorization form that contains the necessary elements (e.g., to whom the release is to be made, what is to be released) and proceed to release the requested information. Both before and after the release, the psychotherapist would explore with the client the potential impact that the disclosure might have on the psychotherapy. For example, if the client is authorizing disclosure of treatment information in furtherance of the client’s lawsuit against another entity, the psychotherapist may want to explore how the disclosure (and potential future disclosures) may inhibit the client from speaking freely in the psychotherapy. The psychotherapist may also want to explore the client’s perhaps inaccurate expectations regarding the psychotherapist’s participation or involvement in the client’s lawsuit.

If the client decides that he or she does not want to authorize disclosure, or the psychotherapist cannot locate the client, the psychotherapist would respond to the subpoena with a letter to the subpoenaing attorney that states, in essence, that the psychotherapist can neither confirm nor deny the existence of a professional relationship with the person at issue, but that, if such a relationship existed, the therapist could not disclose any confidential and/or privileged information about that relationship without a client’s authorization, a court order, or some other legal authority that mandates the disclosure. This letter puts the ball in the subpoenaing attorney’s court to produce an adequate legal authority to compel disclosure of the sought-after information. The psychotherapist would consult a local attorney and/or his or her professional liability insurance carrier should the matter persist or if he or she is unsure about the legal authority the subpoenaing attorney subsequently cites as mandating compliance with the subpoena.

When Disclosure of Treatment Information to a Third Party Is Mandated by a Court Order or Other Compulsory Legal Mechanism

In contrast to a subpoena, a court order, which is an order issued and signed by a judge and directed at the psychotherapist, does not require the client’s authorization in order for the psychotherapist to comply with the order. Failure to comply with a court order usually constitutes “contempt of court” and can result in fines and/or imprisonment for noncompliance. Sometimes it is difficult to tell the difference between a subpoena and a court order; moreover, administrative bodies (e.g., (p. 514) workers’ compensation boards, administrative law judges) are often empowered to issue administrative orders. Whether these administrative orders are binding on the psychotherapist depends on often-arcane state laws and regulations and varies across jurisdictions. Consequently, the psychotherapist who has any uncertainty about the issue should seek advice from a local attorney or consult his or her professional liability insurance carrier.

Upon receipt of a valid court order, the psychotherapist must comply, but would, if possible, still notify the client of the receipt of the court order, inform him or her about the nature and extent of the information demanded by the order, remind the client about the contents of the sought-after information (especially any particularly sensitive information), and encourage the client to consult with an attorney if he or she wishes to attempt to challenge the court order before the information is actually released.

In addition to court orders, there often exist certain legal mechanisms that automatically remove the confidentiality and/or privilege that protect records from disclosure to third parties. Some of these mechanisms, for example, relate to treatment information sought by a child protective agency in furtherance of the agency’s investigation and prosecution of a child maltreatment matter. When a psychotherapist practices in a jurisdiction whose law provides for the automatic waiver of the confidentiality/privilege of a client’s treatment records under such circumstances, he or she can be compelled to disclose the requested information without the client’s authorization.

A second example of such a legal mechanism often found in many jurisdictions is the coroner/medical examiner exception, which allows a medical examiner to obtain a deceased client’s treatment records, without the authorization of the client’s next of kin or personal representative, so that the medical examiner can determine the deceased client’s cause of death.

A third commonly found such mechanism is the automatic waiver of confidentiality/privilege when there is a demand for treatment information in the context of an involuntary civil commitment proceeding to establish the need for, or to maintain, a client’s psychiatric hospitalization.

The existence and specific nature of these automatic legal waivers of client confidentiality/privilege vary significantly from jurisdiction to jurisdiction—some have them, some do not. Consequently, a psychotherapist cannot assume that a demand made by one of these, usually governmental, entities automatically authorizes disclosure of confidential/privileged treatment information. Thus, whenever a psychotherapist receives a demand from a governmental agency that purports to have the inherent authority to obtain disclosure of confidential/privileged treatment information without the client’s authorization, he or she would respectfully request that the entity making the demand produce, in written form, the specific legal authority that would justify the disclosure without client authorization. If the psychotherapist has any uncertainty about the validity of the authority the governmental agency produces in response, he or she should consult a local attorney or his or her professional liability insurance carrier for assistance. If it turns out that the psychotherapist must comply with such a demand, he or she should attempt, whenever possible, to inform the client about the demand and the need for the psychotherapist to comply with it.

(p. 515) Client/Psychotherapist Invitation of Third Parties into the Psychotherapy

Sometimes the client or the psychotherapist may want to invite a third party into the session. For example, a client in individual psychotherapy may feel that bringing a third party into a session would help to resolve a problem concerning the client and the third party (e.g., the client’s family member). In such situations, the psychotherapist must carefully evaluate whether the clinical benefits of including the third party in the session outweigh the risks. These risks include the possibility that the third party

  • Will gain information about the client that the client would not want him or her to have, or that would not be in the client’s best interest

  • May misunderstand his or her role in the psychotherapy and mistakenly believe that the psychotherapist is now in a psychotherapist–client relationship with him or her

  • May disclose information that may trigger a psychotherapist’s duty to intervene (e.g., by revealing the existence of serious and imminent homicidal or suicidal intent; by disclosing information that triggers the psychotherapist’s child abuse reporting duties)

To minimize these risks, the psychotherapist must understand the role of the third party in the client’s psychotherapy, which includes understanding whether the third party is becoming a client in the psychotherapy or is a collateral whose presence simply serves to advance the client’s own psychotherapy. If the psychotherapist is confused or unsure about the third party’s status, it is almost certain the client and the third party will be similarly confused or unsure, which greatly increases the risk of a negative outcome for all involved.

The psychotherapist should then do the following:

  • Carefully assess and discuss with the client what the client expects to achieve by bringing the third party into one or more sessions with the client, and whether these expectations are likely to be realized by doing so.

  • Explicitly discuss what information the psychotherapist may and may not disclose to the third party during the joint sessions.

  • Document the client–psychotherapist discussion on the issue, as well as the client’s agreement to the terms of the third party’s involvement.

  • Consider setting a time period for the duration of these joint sessions, at which time the client and the psychotherapist would decide whether to continue such sessions.

In addition, the psychotherapist must carefully inform third parties about their status in the psychotherapy. Typically, third parties would be collateral informants and not clients of the psychotherapist, although this may not be obvious to the third party. Consequently, the psychotherapist would use (p. 516) a written “collateral informed consent form” with third parties; the form would notify third parties that they are not clients of the psychotherapist, that the third party’s communications in the psychotherapy session will be noted in the client’s chart but will not be available to the third party, and that the third party is not owed a duty of confidentiality or privilege in the event that the client authorizes disclosure of the treatment record or the psychotherapist is forced to disclose the treatment record to others. Finally, the collateral participant would be informed that, despite his or her non-client status, the psychotherapist is still required to make child abuse, duty to protect, and other mandatory disclosures if the collateral informant discloses information that triggers these mandated reporting duties.

There may be circumstances where a psychotherapist believes that a third party’s involvement in the psychotherapist–client relationship would indeed further the goals of the psychotherapy. For example, when dealing with a potentially suicidal client, the psychotherapist may decide that involving a particular family member could reduce the client’s suicide risk, because the family member may be able to monitor the client between sessions, may provide increased support to the client, and may be more readily available to openly discuss the client’s suicidality once disclosure of such has occurred in the joint psychotherapy session. Although in this case it is the psychotherapist that is inviting the participation of a third party in the treatment, he or she would still follow the same principles outlined above regarding the presence of a third party in a treatment session.

Sometimes the client’s attorney or employer or a court-appointed evaluator will contact the psychotherapist and ask him or her to discuss the client or the client’s treatment (i.e., rather than simply requesting copies of the client’s treatment record). The psychotherapist, of course, cannot disclose any information to these entities without the client’s authorization. But often the client will grant such authorization because the client believes it is in his or her best interest to do so, or because the client is being pressured to authorize such disclosure. In such a situation, the psychotherapist would follow the guidelines articulated in this chapter. However, a psychotherapist who believes that such a discussion would be unhelpful to the psychotherapy or would create risks for the psychotherapist is not obligated to engage in such a discussion with any third party. He or she can instead simply provide the treatment record or offer a written treatment summary. Doing so allows the psychotherapist to avoid making inadvertent or erroneous statements during a spontaneous and unstructured conversation with the requesting party.

The problems that can arise when the psychotherapist engages in an informal discussion with such a third party include the following:

  • The third party may inadvertently misinterpret or, in extreme circumstances, deliberately distort the psychotherapist’s oral statements, in furtherance of the third party’s own interests.

  • The psychotherapist may, in the spontaneity of an oral discussion, omit relevant information or make accidental misstatements that will negatively affect the client and/or the psychotherapist.

  • The psychotherapist, in a genuine but misguided effort to be helpful to the client and the third party, may violate the ethical and regulatory rules that are intended to keep a psychotherapist from straying into an impermissible dual role or exceeding the psychotherapist’s level of competence with regard to giving an opinion about a particular issue.

(p. 517) For example, the client’s attorney may press the psychotherapist to offer the opinion that a motor vehicle accident, rather than a preexisting psychological condition, is the cause of the client’s current distress—an opinion that the attorney will then use to support the client’s lawsuit against the other driver. Or, a forensic child custody evaluator may contact the psychotherapist and seek to elicit opinions that exceed the psychotherapist’s treating role—asking, for example, whether the client is a fit parent, when the psychotherapist has had no opportunity to evaluate the client’s parenting ability. Providing such opinions, especially in the context of an ongoing legal, administrative, or employment matter (where the client faces a potentially serious outcome), can place the psychotherapist at significant risk from regulatory authorities, from other involved mental health professionals, and from the client.

When asked to orally discuss a client’s case with a third party, the psychotherapist must proceed cautiously. Rather than engaging in such a discussion, the psychotherapist might ask the third party to submit a set of written questions for him or her to consider. The psychotherapist would then review the written questions, determine if he or she can properly answer some or any of them, and then compose responses in an unpressured and thoughtful manner that minimizes the risk to the psychotherapist (e.g., the risk of making inadvertently erroneous or misleading statements or of being misquoted), the client, and the psychotherapy. It can often be helpful for the psychotherapist to review his or her proposed responses with the client. Alternatively, the psychotherapist might offer to provide a brief treatment summary in lieu of an oral discussion with the third party. In constructing such a summary, the psychotherapist would provide an accurate summary that is limited to the facts of the psychotherapy and that does not express opinions or give information that would exceed the treating (i.e., nonevaluative) role. Finally, the psychotherapist might simply decline the request for an oral discussion and indicate that the third party’s recourse is to seek copies of the client’s treatment records or possibly to submit written questions to which the psychotherapist can provide written responses.

In choosing how to proceed in these circumstances, the psychotherapist should discuss the matter with the client and document in the client’s chart the reasons for choosing a particular course of action. The psychotherapist can also seek input (without releasing protected information about the client) from his or her malpractice carrier and well-respected colleagues, being sure to document these discussions in the client’s file.

Conclusion

A psychotherapist must be aware of the local laws and regulations that govern the disclosure of treatment information to a third party and must notify the client in advance about the circumstances that permit or mandate such disclosure. A psychotherapist should always consider the effect that the disclosure of treatment information may have on the client and the psychotherapy and should seek, whenever possible, to protect that information while realizing there are circumstances where the disclosure of treatment information to, or the involvement of, a third party may be beneficial for the client and/or the psychotherapy. A psychotherapist should use a thorough informed consent process and should carefully document all actions taken in regard to third-party interactions with the psychotherapist–client dyad.

Resources

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American Psychological Association Practice Organization. (2012). How to handle subpoenas and depositions. Retrieved from http://www.apapracticecentral.org/good-practice/secure/2012-winter.pdf

Fisher, M. (2012). Confidentiality and record keeping. In S. Knapp (ed.), APA handbook of ethics in psychology: Vol. 1. Moral foundations and common themes (pp. 333–375). Washington, DC: American Psychological Association.Find this resource:

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      Mental Health Professionals’ Duty to Warn. (2015, September 28). Retrieved from http://www.ncsl.org/research/health/mental-health-professionals-duty-to-warn.aspx.

      State Statutes Search. (n.d.). Retrieved from https://www.childwelfare.gov/topics/systemwide/laws-policies/state/.

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