(Published in HealthCare Review, September 29, 2008)
If you are a therapist, chances are high that your path has crossed with that of a attorney on at least a few occasions. Chances are also quite high that when your paths crossed, the attorney you interacted with created a legal or ethical dilemma for you. Perhaps you were seeing children for therapy whose parents were divorcing, and the mother’s attorney wanted you to testify that the children should not have visitation with their father. Or perhaps your client, who was seeing you for post-traumatic stress disorder, and you were concerned about discussing the therapy with your client’s attorney.
In today’s day and age, you cannot avoid interacting with attorneys. But you should be aware that the bulk of attorneys are not aware of your legal and ethical constraints and therefore may put you in an ethical bind without realizing it. It is therefore up to you to know your ethical and legal obligations in order to fully protect yourself.
Individuals who provide mental health services are typically regulated by a government agency within their state. These boards typically adopt rules, provide licenses to qualified applicants, and ensure that licensees comply with their legal and ethical obligations. Licensed therapists must not only adhere to state rules and regulations, but they must also comply with their professional codes of ethics.
Although there are many legal and ethical issues that dictate the way in which therapists provide therapy to clients, there are two key issues to be aware of when interacting with attorneys. The first is confidentiality. The second is the role of the therapist.
Communications between a therapist and a client are considered privileged communications. In most states, a therapist cannot have discussions with, or provide documents to, any person unless the client waives privilege or a court orders privilege to be waived. Attorneys are no exception to this rule, even if the attorney represents your client.
If any attorney contacts you, either to discuss a patient or to request records, you would be wise to get the necessary releases in writing. If you do not have a proper release, you should not release confidential information without a court order unless the law in your state creates an applicable exception. Receiving a subpoena will not change that. Even if you are willing to provide the attorney with records, your hands are tied unless privilege is waived.
With regard to the release of confidential information related to minors, the issue may be more complicated due to a court’s concerns about whether the release of confidential information is in the child’s best interests. For instance, in New Hampshire, the Supreme Court ruled In the Matter of Eugene Berg and Kathleen Quigley Berg, (2005), that parents do not have the exclusive right to assert or waive the therapist-client privilege on their minor child’s behalf, and 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. It is therefore important to be aware of how your state handles the release of records for minors.
The Role of the Therapist
Although there are circumstances in which therapists are hired by attorneys to perform an evaluation or advocate in a legal case, attorneys most typically interact with therapists as traditional therapists. That is, the therapist is providing therapy to individuals in a traditional therapeutic setting. The therapist’s role is to provide therapy. Whether attorneys realize it or not, 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 you act as an advocate, you are assuming a dual role with the client – that of an advocate as well as that of a therapist.
You can expect an attorney to pressure you to testify as an expert due to your expertise. Although you have expertise, that does not make you expert witness in this case. Stay strong and don’t allow the attorney to pressure you to assume a dual role. If you testify regarding your client’s therapy, you are a fact witness, not an expert witness. To the extent that the attorney needs opinion testimony, he or she needs to plan to hire an expert. If, on the other hand, you are asked to testify to the facts, such as to how many times you 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.
Most therapists’ codes of ethics prohibit, or at least warn against, therapists assuming dual roles, due in great part to the fact that an additional role can, and often does, jeopardize the therapist’s primary role as the client’s therapist. Moreover, many state licensing boards have disciplined licensees for taking on dual roles. Be aware of this issue when it arises and seek proper clinical supervision.
What does this mean for you?
It is critical that you understand your legal and ethical guidelines. Having a solid grasp of these issues will not only enable you to practice effectively, but it will protect you when you interact with attorneys.
Andrea Daly is a member of the Litigation Department at the law firm of McLane, Graf, Raulerson & Middleton, Professional Association. She can be reached at 603-334-6927 or [email protected]. The McLane Law Firm is the largest full-service law firm in the state of New Hampshire, with offices in Concord, Manchester and Portsmouth.