to approach the court for authorization to take D. C. off of life-support. The family was instructed by the court to locate any information they could find that would shed some light on D. C.’s wishes concerning end-of-life issues. The family asked the counselor if any of the records from her counseling sessions might help to provide some guidance to the court concerning D. C.’s end of life plans in order to make decisions about her treatment. The counselor refused and decided to consult a colleague. The family turned to the court for an order to compel the counselor and the counselor’s colleague to release all information and communication concerning D. C.’s end-of-life wishes. The courts issued a subpoena for all records and communications. The counselor eventually complied to avoid sanctions by the court. Analysis Family members have many reasons to seek access to the records of other family members. Some are legitimate; others have the potential to harm the client or lead to an ethical violation if mistakes are made in disclosing information to the wrong party. In this situation, the client was incapacitated and could not make her wishes known. In these cases, the courts recognize a surviving line of consent as follows: ● The first in line in the chain to grant consent is the spouse. This is true even if they are estranged and living apart, but not divorced. ● Next would be the children of legal age: each child would be given equal weight in the decision. ● Next are parents or grandparents, followed by siblings, each having equal weight. ● If there are no family members, the courts may appoint the next closest relative or close friend.
The ethics codes are clear that in cases with clients who are minors, or clients who meet criteria as legally incompetent, that parents or legal guardians will be given full access to records. Therapists must understand the complex nature of confidentiality, informed consent, and privacy when serving minors and their families. Even if a client is a minor or is incompetent to understand at the expected level, the therapist should make every attempt to communicate in a way that can be understood at their developmental or cognitive level. The practitioner must be sensitive to the needs and feelings of these clients and must realize that the client may understand more than is readily apparent or may have an inability to respond. At the beginning of any counseling or therapeutic relationship, each member should receive information about confidentiality in the treatment relationship. A legal parent or guardian must be established before services begin so that the practitioner knows who may be contacted, consulted, and involved in the client’s treatment. Counselors and therapists may be reluctant to provide access to records and notes to clients, parents, and guardians because they may believe they will not understand or may misconstrue the information. Misunderstandings could cause harm to the client, impede the treatment plan, or result in a lawsuit. The ethics codes of the NBCC, AAMFT, and ACA provide guidelines concerning the rights of the client and the obligation of the provider in this area. When information is shared, the practitioner must take the time to be sure the client understands the information and must involve interpretation and explanation. Records should never be turned over to the client or guardian without a conference that includes all parties that have any legal authority to review the information so that the therapist or counselor can explain the contents and answer questions. Analysis ● The court, after reviewing rulings in other cases, found when a person issues a report of child abuse or neglect in good faith, or is called to testify in the judicial process related to the report, the person would have “immunity from any liability, civil or criminal, that might otherwise be incurred or imposed.” ● The court stated, “because Marks admitted to the abuse of the two children the psychologists had reasonable causes to suspect that children were being abused and therefore were acting in good faith when they determined that a report should be made.” ● In the review of other cases, the court found decisions that the psychotherapist-client privilege was second to the child abuse reporting statute and that child abuse statutes, “vitiated the privilege and the therapist could be compelled to reveal the alleged sexual abuser’s medical records in a civil action for damages.” ● The court found, in most cases, that the child abuse reporting statute abrogates a privilege that may otherwise be applicable with respect to proceedings involving child abuse or neglect. ● Some states allow information in the report of child abuse to be disclosed, along with all other privileged information; others simply act on the fact that the report was made and substantiated in these cases of privilege brought against the therapist or counselor. For prosecution of the alleged abuser, all privileged information would be discovered. ● In situations of child custody, there are a number of positions of privilege taken by the courts depending on
Case Study: Privilege Applied to Child Safety and Custody The laws that govern mandatory reporting of child abuse will always take precedence over client privilege laws in all states. In cases of child abuse or neglect, the therapist or the counselor may be compelled to testify in court for the welfare of the child. The following case from the Alabama Supreme Court (Marks v. T.) demonstrates these important facts: ● Client Marks consulted a psychologist, Dr. T., for
mental health services. It was the client’s understanding that anything he shared with the therapist would be confidential information that would never leave the office. He believed the therapist told him that there would be protection under client privilege when they initially met. ● During a subsequent therapy setting, Marks confided that he had sexually abused two girls under the age of 12 years. ● The therapist consulted a professional colleague and made the decision to tell Marks that as a mandated reporter he was compelled to report the incident to child protective services and that the confidentiality agreement would be void in this case. ● Marks alleged malpractice, hired an attorney, and filed a civil case against the therapist as well as the colleague he consulted. He also claimed in the lawsuit that the therapist caused him to be prosecuted, lose his job, suffer mental anguish, and ruined him financially. ● The therapist’s counsel filed a motion to have the case dismissed, which was granted. Marks appealed the judgment of dismissal; however, the Alabama Supreme Court upheld the dismissal.
Page 39
Book Code: PCUS1525
EliteLearning.com/Counselor
Powered by FlippingBook