Patient rights in therapeutic practice

Therapy -- Patient Confidentiality and Privilege Rights

Therapy & Patient Rights

Under the usual conditions of therapy, patient therapy information is protected by legal concept of privilege. Privilege to determine how and when therapy records are disclosed belongs to the patient. A therapist has a professional obligation to maintain confidentiality. Essentially, this means that everything that is discussed in a therapy session must be kept in confidence, and that duty of confidence cannot be revoked by the therapist without the patient's approval. The rights of a patient and the rights of a therapist are absolute, except under certain conditions. The conditions that fall outside of the protection of privilege and confidentiality of psychotherapy are considered to be official exceptions. Under these exceptions, a psychotherapist is either allowed or required to break confidentiality. The exceptions to the confidentiality of psychotherapy discussed below reference the laws in the state of California, a state that has notably restrictive consumer protection and human service / protection laws.

Exceptions to Confidentiality

Under California law, there are three exceptions to the confidentiality of psychotherapy.

(1) "Where there is a reasonable suspicion of child abuse or elder adult physical abuse."

(2) "Where there is a reasonable suspicion that you [the patient] may present a danger of violence to others."

(3) "Where there is a reasonable suspicion that you [the patient] are likely to harm yourself unless protective measures are taken."

Mandated reporting of child abuse. The state laws that address reported incidences of child abuse or the threat of child abuse are: Child Abuse: CA Penal Code § 11164-11174.4: 288; 261-269 and Child Abuse: CA Welfare & Institutions Code § 18951 ff. The language of the law specifically obligates a psychotherapist to report as follows:

"In respect to minors, a psychotherapist is mandated to report accidental injury inflicted by others; sexual abuse; unjustifiable mental suffering (as in a young child witnessing domestic violence:; neglect; cruelty; statutory rape (minor under 16 and other 21 or older, even if consensual); lewd and lascivious conduct (minor under 16 and other 10 years older, even if consensual); consensual sexual contact between minors (where one is 14 years of age and the other is under 14 years of age)."

Under this mandate, incidences or concerns about threats of child abuse must be reported whether disclosed by an offender, a potential offender, a victim or a potential victim, or others who would have knowledge of the incidence of or threat of child abuse.

Mandated reporting of abuse of elderly adults. The state laws that address reported incidences of physical abuse of elderly or dependent adults are: Elderly and Dependent Adults: CA Welfare and Institutions Code § 15630-15632; § 15610-15610.65; § 15633-15637.

"In respect to elderly or dependent adults, a psychotherapist is mandated to report physical abuse, including sexual assault; misuse of physical or chemical restraint; neglect; fiduciary abuse; neglect; and isolation."

Threat of violence to others. A therapist has a duty to report threats of violence to others. Many patients explore feels of retribution in therapy, and this may include destruction of property. The therapist must exercise professional judgment in such a case, while remaining alert to a property threat that details specific property or specific individuals, as mandated by CA Civil Code § 43.92 (a). Specificity -- identification by the patient of particular people -- is a key indicator that a psychotherapist may be obligated to report the patient disclosure.

According to CA Evidence Code §1024:

"There is no privilege…if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself of to the person or property of another and that the disclosure of the communications is necessary to prevent the threatened danger."

It is important to note that there is not a mandate (see Tarasoff); rather the law protects the therapist from the charge of breach of confidentiality. Further, according to CA Civil Code § 43.92 (a):

"There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist…in failing to warn of and protect from a patient's threatened violent behavior or failing to predict and warn of and protect from a patient's violent behavior except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims."

It is important to note that the Civil Code 43.92 (b) includes language that, when making a warning about a danger or threat of danger, the psychotherapist should report the impending violence to a law enforcement agency and tot the threatened victim(s). A court appointed psychotherapist practices under the same legal mandates as a psychotherapist in private practice.

The special situation of group therapy. When patients participate in group therapy, they must make an agreement that includes all members that information disclosed by others in the course of the group therapy is to be held in confidence, just as it is when patients' are engaged in private therapeutic sessions. Certainly, patients can discuss their own experiences in the group therapy sessions. With regard to confidential information disclosed by others, however, patients are obligated by the agreement they make in order to engage in group therapy. Any damages that ensue from disregard of these confidential agreements would fall under libel and slander laws, which could be pursued by the patient who claims harm.

Responsibilities of employers. State and federal employment laws view the duties and responsibilities of employees to extend to the employer. That is, an employer is responsible for the actions of his employees and may be subject to lawsuit or prosecution under tort law if they are found to be complicit or have in any way disregarded their larger duties that fall under the umbrella of professional obligations.

If a patient's psychological treatment is raised in the course of the proceedings of a lawsuit, a therapist can be made to reveal details of a patient's treatment according to the CA Evidence Code § 1016. The release of therapy records occurs only under subpoena by an attorney involved in the case. The psychotherapist must claim privilege for the patient, according to CA Evidence Code § 1015. The patient then has the option of waiving privilege so that the psychotherapist can provide the subpoenaed information. Or the patient may invoke privilege and refuse to allow his treatment records to be released. The decision as to whether the psychotherapist must be made to release the information then falls to the trial judge, who may issue a court order which overrules any protests regarding privilege.