If you work in the areas of criminal prosecution/defense, personal injury, divorce and some others, chances are quite high that your path has crossed with that of a therapist at least once. Therapists include psychologists, clinical mental health counselors, social workers, marriage and family therapists, and pastoral psychotherapists.
Many attorneys need to interact with therapists at one time or another and in order to do so effectively, they need to understand that therapists are constrained by a set of rules and ethical guidelines not unlike those which govern attorneys. There are many attorneys who are not aware of these constraints. Unfortunately, there are also therapists who do not understand their own legal and ethical guidelines and they are sometimes disciplined by the agency that licenses them – the State of New Hampshire Board of Mental Health Practice – for violating such obligations. As a result, therapists are increasingly reluctant to interact with attorneys.
The key to working with mental health professionals is to understand how to work with them rather than against them. This means increasing the awareness of attorneys about the basic legal and ethical obligations that govern them. The more attorneys know about these rules and ethical guidelines, the easier it will be to navigate these constraints and have more productive interactions with therapists.
Individuals who provide mental health services in the State of New Hampshire are regulated by RSA 330-A, Mental Health Practice, and the Administrative Regulations set forth at Mhp Part 100, et seq. RSA 330-A:3 establishes the Board of Mental Health Practice, which is responsible for ensuring that licensees comply with their legal and ethical obligations. Licensed therapists must not only adhere to RSA 330-A and Mhp Part 100, et seq., but they must also comply with professional codes of ethics which are different for each type of therapist.
The Board, at its own initiative or in response to a complaint, may perform an investigation of a licensee to determine whether the licensee has committed misconduct. (See RSA 330-A:27 and A:28.) If the Board believes that there has been misconduct; the Board may choose to pursue discipline of the licensee. Even if the mental health practitioner has acted appropriately, but has in the process upset a client or a client’s parents, the licensee can be thrown into this tumultuous process. The price is therefore quite high for licensees should they take actions which could be construed as misconduct.
There are two key issues that affect the way in which therapists can interact with attorneys. The first is the way in which confidentiality can be waived to enable the therapist to speak with, or provide records to, the attorney. The second is the determination of the therapist’s role in a case.
Communications between a therapist and a client are privileged communications just as those between an attorney and a client. RSA 330-A:32 states:
“The confidential relations and communications between any person licensed under provision of this chapter and such licensee’s client are placed on the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communication to be disclosed, unless such disclosure is required by a court order.”
Barring a court order, client-therapist communication, and information related to the client’s file, are protected by privilege and therefore need a waiver of privilege from the client before any information is released.
Before you attempt to contact a therapist, either to discuss a patient or to request records, you would be wise to get the necessary releases. Sending a subpoena will not change that; a therapist will typically move to quash the subpoena, even if he or she wants to cooperate, because there is no alternative.
If you have a proper release, privilege can be waived and the mental health practitioner can provide you with the information requested, but be aware that the therapist has 30 days to do so under Mhp502.01 (m). Many therapists receive letters from attorneys demanding records right away. Therapists are afforded time under the law, so it is a good idea to plan accordingly.
The issue is somewhat more complicated when dealing with confidential information related to minors. In a 2005 New Hampshire Supreme Court ruling, In the Matter of Eugene Berg and Kathleen Quigley Berg, 152 N.H. 658 (2005), the Court held that parents do not have the exclusive right to assert or waive the therapist-client privilege on their minor child’s behalf. Prior to this ruling, therapists operated under the assumption that adults with decision-making responsibility had the sole authority to waive privilege on behalf of minor children. Even if the therapist had concerns that releasing the records to the parent could be harmful to the minor, the therapist had no choice but to release the records within 30 days unless ordered not to by a court. Berg altered this landscape considerably.
The facts of the Berg case are not uncommon given today’s heated divorce actions. When the parents of four children divorced, the mother was awarded primary physical custody of the four children, and the father had specific periods of visitation. The parents had joint legal custody. Following the divorce, the children refused to visit with their father as scheduled. The father, in return, filed a contempt motion, alleging his ex-wife was alienating the children from him. For her part, the mother filed a motion to modify the visitation schedule. A Guardian ad litem (GAL) was appointed to represent the children. The father requested records and notes from the children’s therapists, claiming he would find evidence that his ex-wife was interfering with his relationship with his children. The therapists refused to produce the requested information, concerned that disclosing the records to the father was not in the children’s best interests.
The GAL moved to have the marital master seal the therapy records so as to prevent the father from accessing them. The mother assented to the motion. The marital master denied the motion to seal, holding that the legal right of a custodial parent to access his children’s confidential records overrides the children’s privacy rights.
In an interlocutory appeal, the New Hampshire Supreme Court ruled that RSA 330-A:32 does not specify who may claim the privilege on behalf of a minor child, and that affording a parent exclusive authority to waive the privilege is not always in the child’s best interests. The Court emphasized that in the context of divorce and custody proceedings, the interests of the parent are sometimes adverse to the interests of the child. With this in mind, the Court ruled that when privilege for a minor’s records is at issue, the trial court must determine whether waiver or assertion of the privilege is in the child’s best interest, bearing in mind that the child’s ability to continue to engage in treatment is critical.
The Berg opinion dramatically alters the manner in which a therapist who treats children will release privileged information to anyone, including attorneys. Although this is particularly true in divorce and custody proceedings, a strong argument could also be made that Berg relates to a minor’s privileged information beyond this context. At this point it is unclear how far Berg will reach. Berg essentially prevents a therapist from releasing a minor’s records when the parents disagree about whether there should be a waiver of privilege. The therapist is therefore strongly advised to wait until the Court resolves the issue and determines what is in the child’s best interest.
If you believe that there will be some dispute with the opposing party in your case about whether a minor’s records should be released, it would be far more productive for you to go straight to court to resolve the issue. Putting the therapist in the middle creates an impossible situation for the therapist and will only cause further delays and frustration.
The Role of the Therapist
Although there are circumstances in which therapists are hired to perform an evaluation or to advocate in one manner or another for a client, most attorneys interact with therapists who are providing therapy to individuals in a traditional therapeutic setting.
Attorneys and therapists often tangle over whether it is appropriate for the therapist to take on an additional role. Most commonly, attorneys seek recommendations from therapists regarding minors or the minor’s parents – where the minors should reside, the suitability of one or both parents, and so forth. When a therapist acts as an advocate, he or she is assuming a dual role with the client – that of an advocate as well as that of a therapist.
Most therapists’ codes of ethics prohibit or warn against therapists assuming dual roles, since a dual role can often jeopardize a therapist’s ability to act in his or her primary role as therapist. For these reasons, most licensees will understandably go to great lengths to avoid such requests.
If you need a therapist to testify, adjust your expectations. You are examining a fact witness, not an expert witness. Unless hired by you specifically to provide expert testimony – which is not the case if the therapist is providing therapy to a party – you need to be prepared to stick to the facts. Asking a therapist to act like an expert and to provide opinions about issues such as where the children should reside or the extent to which visitation should occur, will, in most instances, be met with resistance. To the extent you will need opinion testimony; you need to plan to hire an expert.
On the other hand, if you want a therapist to testify to the facts, such as to how many times he saw the client for therapy, the client’s diagnosis, the issues discussed in therapy, and what you observed with regard to the client’s demeanor or physical appearance, these are all appropriate lines of questioning.
What Does This Mean for You?
Therapists can assist you in your case, but it is important that you understand their legal and ethical guidelines and alter your expectations. If you will need privileged material, plan accordingly. Execute the necessary releases in order to have the privileged waived. If you cannot obtain releases from all required parties (for instance both parents if requesting a minor’s records), save yourself time and avoid unnecessary aggravation by filing a motion to have the Court resolve the issue.
Anticipate a 30-day wait before you receive your records. If you will need the therapist to testify, provide the therapist with proper notice so that the therapist can reschedule appointments. Dropping a subpoena on a therapist three days before a hearing or trial without any prior notice is inconsiderate, and it is quite likely the therapist will be difficult.
Expect that the therapist will file a motion to quash subpoena in order to have the Court address the issue unless you have the necessary releases. If the therapist does testify, do not expect the therapist to testify beyond the facts. If you will need opinion testimony, hire an expert instead of falling back on the therapist at the last minute.
If you respect the position a therapist is in by understanding and honoring these issues, you are far more likely to have a therapist cooperate with you, and perhaps even help your case.
Andrea L. Daly is a litigation attorney in McLane, Graf, Raulerson & Middleton, Professional Association’s Portsmouth office who specializes in mental health law. Her work in this area includes civil lawsuits, risk management of licensed practitioners, and defense of practitioners before their licensing boards. You may contact her at 603-436-2818 or [email protected].