Relevant case law
Neel v Luther Child Center, 98 Wn. App. 390, 989 P.2d 600 (1999)
Father wanted access to child’s protected health information record so that he could defend against the mother’s charges of sexual abuse.
- Vying standards
- Parents’ right to access (RCW 26.09.225)
- Patient confidentiality (RCW 70.02.020)
- Harm to patient (RCW 70.02.090)
- Best interests of the child (RCW 26.09.002)
- Finding: The Court of Appeals held that, although RCW 26.09.225 allows a parent access to a child’s confidential record, the purpose of the access should be to serve the interests of the child, not the parent. In this case, the father had no standing because his purpose was to defend himself and not to serve the needs of the child. RCW 70.02 is designed to serve the interests of the patient, not a parent or representative
- What does this mean for you? Even if a parent generally has the right to access the child’s record, disclosure may not be appropriate if the request is not for the purpose of serving the child’s clinical needs. Even though non-disclosure may be an option, every case is fact-specific and you want to be sure you comply with the law so: Call for a consultation!
- Neel: http://caselaw.findlaw.com/wa-court-of-appeals/1109307.html
- In re: Marriage of Michael J. Folise, 113 Wn. App. 609, 54 P.3d 222 (2002)
Reports had been made to Child Protective Services (CPS). The father wanted access to his child’s confidential client record. The agency where treatment was being provided sought a protection order over the record in order to prevent the disclosure.
- Vying standards and law
- Who holds privilege over the client record. (RCW 5.60.060(9))
- Who has standing to exercise privilege. (RCW 70.02.060)
- Safety of client/harm caused by disclosure. (RCW 70.02.090)
- Finding: The Court of Appeals held that because the agency was not a party in the dissolution action, it had no standing to bring a motion for a protective order. Only the party has standing to protect a record from disclosure.
- What does this mean for you? Only a party to the case who holds privilege over a record has the standing to withhold or approve disclosure. If you are a counselor being subpoenaed for a client’s record, you do not have the authority to produce or withhold the record. The client is the one who has the authority to either produce or move to protect/withhold the record, so it is the client who has to obtain a protection order. If the client either doesn’t try to get a protection order, or tries but fails to get a protection order, then you will likely have to produce the record. That’s okay; you just want to make sure that whatever you do is in compliance with the law! In any case, you want to be sure you know what you’re doing. Every case is fact-specific, so: Call for consultation!
- Folise: http://caselaw.findlaw.com/wa-court-of-appeals/1291219.html
- Vying standards and law
- Redding v Virginia Mason Medical Center, 75 Wn. App. 424, 428, 878 P.2d 483 (1994)
A husband/father was ordered to anger management counseling in connection with Domestic Violence charges. During the course of his therapy, his then-wife (and mother of their child) participated as a collateral and described her own problem with alcohol. Later, during their divorce and custody battle, the father requested his therapy notes to show evidence of the mother’s alcohol use. The medical center provided the notes without subpoena and without the mother’s consent. The mother sued the medical center for emotional distress damages caused by breach of the psychologist-patient privilege.
- Vying standards
- Identification of who is the client
- Confidentiality of counseling (RCW 70.02.020)
- Best interests of the child (RCW 26.09.002)
- RCW 18.83.110 allows that psychologist-patient privilege is equal to attorney-client privilege
- Waiver of privilege when statements are spoken in presence of a third party.
- Finding: Court of Appeals found that, ordinarily, joint therapy sessions are confidential and privileged against compulsory disclosure. However, an exception to this rule may be exercised by the Court in order to decide the best interests of the child when deciding a custody dispute. In such a context, the record is not privileged.
- What does this mean for you? If you are working with a client whose circumstances involve a child’s best interests, it is very possible that your record may be “discoverable” – that means you might have to disclose it to a court if the best interests of a child are in question. That’s okay; you just want to make sure that whatever you do is in compliance with the law! Every case is fact-specific, so: Call for a consultation! (Best practice might be to have collaterals sign a collateral acknowledgment that s/he is there as a collateral and holds no privilege – in order to remove the expectation of privacy.)
- Redding v Virginia Mason: https://www.leagle.com/decision/199449975wnapp4241456
- Jaffee v Redmond, 518U.S.1 (1996)
In this landmark case, the United States Supreme Court created a psychotherapist-patient privilege in the Federal Rules of Evidence.Redmond was an on-duty police officer who shot and killed Allen in the line of duty. Allen’s estate filed an action. The lower court ordered that Redmond’s refusal to disclose the therapy notes from her sessions with a licensed clinical social worker after the shooting was not justified.
- Vying standards
- The public right to have all relevant evidence presented.
- The client receiving psychotherapy has an expectation of privacy and confidentiality between a client and social worker psychotherapist.
- Finding: “Effective psychotherapy depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears.” “If the purpose of the privilege is to be served, the participants in the confidential conversation must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.” [Emphasis added.] Justice Stevens at 449 U. S., at 393.
- What does this mean for you? This is the case law in which the Supreme Court of the United States conferred confidentiality upon the social worker/client relationship that had to that point only been conferred upon psychologists and their clients. This is reflected in RCW 5.60.060(9). Examples of best practices: “I can neither confirm nor deny that this person is a client.” Get a signed Release of Information (ROI) before disclosing information. Ask for a subpoena if court is involved. Always remember, though, that since every case is fact-specific, you should call for consultation!
- Jaffe v Redmond: https://supreme.justia.com/cases/federal/us/518/1/
- Vying standards
- Petersen v State of WA, 100 Wn.2d 421, 671 P.2d 230
Duty to Protect the public-at-large
Larry Knox cut out his left testicle while under the influence of angel dust. He was on probation from a 15 year prison sentence. One of the conditions of probation was to receive mental health services. Knox was committed to Western State Psychiatric Hospital beyond the 72 hour watch. The day before his discharge, he was given a pass to go home for Mother’s Day to see his mother. He returned driving his car recklessly. The hospital determined that he had recovered from the drug reaction causing psychosis, and was in “full contact with reality” and “back to his usual type of personality and behavior.” He was discharged the next morning. Five days later, again under the influence of drugs, he got into a car accident harming Ms. Petersen.
- Vying standards
- Privileged communication between psychologist and patient (RCW 18.83.110)
- Confidentiality of Involuntary Commitment Act (RCW 71.05.390)
- Finding: By virtue of the “special relationship” between doctor and patient, the hospital was negligent in its treatment of Knox by failing to protect Petersen (an unidentifiable person) from the patient’s dangerous propensities. The hospital had a duty to the public at large to restrain the patient.
- What does this mean for you? This is the standard that currently applies to counselors. (See below under Volk v. DeMeerleer.)
- Petersen v State of WA: http://courts.mrsc.org/supreme/100wn2d/100wn2d0421.htm
- Volk v. DeMeerleer, 91387-1
Duty to Protect the public; no longer Duty to Warn an individual
Jan DeMeerleer received treatment for depression and bipolar disorder from his psychiatrist, Dr. Howard Ashby. Jan expressed ideas of suicidality and homicidality, but always stated that he would not act on the ideas, knew they were wrong, expressed embarrassment, and identified support from others that he received. He stopped seeing Dr. Ashby on April 16, 2010. Between then and July 18, 2010, DeMeerleer was observed by several family and friends to behavior that was reasonable, calm, and even good-humored. On the early morning of July 18, 2010, three months after the final appointment with Ashby during which DeMeerleer denied homicidality or suicidality, DeMeerleer murdered his former girlfriend who had ended their relationship, one of her twin boys, and himself. He also attacked another of Schiering’s sons, and left a third unharmed. The estates of the survivors sued Dr. Ashby and the agency for which he worked, claiming that Dr. Ashby should have known that parties and the public were at risk of harm, and was at fault for not having done more to ascertain DeMeerleer’s state of mind and committed his patient.
- Vying interests
- Confidentiality of sessions
- Burden on treatment provider to report confidential information
- Duty to warn (WA version of Tarasoff: RCW 71.05.120(7) – re involuntary hospitalization)
- an identifiable person when a client has
- Made an actual threat
- Of physical harm
- Against a reasonably identifiable person
- Duty to protect the public from the foreseeable victims of a client’s actions. (Petersen)
- Vying interests
- Finding: The lower court was incorrect in applying RCW 71.05 because that statute applies to in-patient care. The court should have applied the law of Petersen v State of WA, which held that “after a special relationship is formed between a mental health professional and his or her outpatient ….. the mental health professional is under a duty of reasonable care to act consistent with the standards of the mental health profession, in order to protect the foreseeable victims of his or her patient.” The “special relationship” was defined as being “definite, established, and continuing.”
- The case was remanded to the trial court to re-try the case under the standard of Petersen. However, the case was settled, and therefore no further ruling was made. Thus, we are now left with the Petersen holding as the standard for reporting.
- What does this mean for you? The old standard from RCW 71.05 was that your client had to communicate 1) actual threat of 2) physical harm against a 3) reasonably identifiable person, which was the WA State approximation of Tarasoff. Now, however, your duty is to any foreseeable victims in the public-at-large who may not be identifiable. While you can still report to anyone if you think doing so may avoid imminent or serious risk to a client or other person as per RCW 70.02.050(1)(c), this case law confers upon you the responsibility to act consistent with the standards of your profession. While the standards are not defined, a good way to approach this is to do a thorough lethality assessment if you fear that your client could be a danger to self or others; and if the client doesn’t attend meetings, to have a plan in place to terminate the therapeutic relationship (thereby knocking out the “continuous” factor for the “special relationship” between you and your client. Informed consent form can be a good vehicle for this, followed up by a termination letter. Again, these situations are fact-specific, so it is best to consult.
- Statutes that are often relevant to practice
- RCW 70.02.080 – Patient’s examination and copying – Requirements. Patient has the right to access treatment records.
- RCW 70.02.090 – Patient’s request – Denial of examination and copying. Treatment provider may deny patient’s right to access if s/he can show that access would cause harm to patient or some other person. Requires review by another, neutral, treatment provider.
- RCW 26.09.225 – Parents’ right to access child’s record absent a court order to the contrary. (Emphasis added.)
- RCW 70.02.050 – Disclosure w/o patient’s authorization – Need-to-know basis. Exceptions to confidentiality of protected record. May disclose to anyone if in good faith believe necessary to protect or avoid imminent harm.
- RCW 70.02.060 – Discovery request of compulsory process. Describes rules regarding disclosure and issuance of a subpoena for the health care provider, requiring a two-week notice so that the patient can seek a protective order if one is desired. This statute is for health care records, and is distinguished from mental health provider records that place the burden to obtain a court order, as described in RCW 70.02.230 and .240.
- RCW 70.02.130(1) – Consent by others – Health care representatives. If the patient is a minor and is authorized to consent to health care without parental consent under federal and state law, only the minor may exercise the rights of a patient under this chapter as to information pertaining to health care to which the minor lawfully consented.
In cases where parental consent is required, a health care provider may rely, without incurring any civil or criminal liability for such reliance, on the representation of a parent that he or she is authorized to consent to health care for the minor patient regardless of whether:
(a) The parents are married, unmarried, or separated at the time of the representation;
(b) The consenting parent is, or is not, a custodial parent of the minor;
(c) The giving of consent by a parent is, or is not, full performance of any agreement between the parents, or of any order or decree in any action entered pursuant to chapter 26.09 RCW.
(2) A person authorized to act for a patient shall act in good faith to represent the best interests of the patient.
- RCW 70.02.230(2)(o) – Mental health services, confidentiality of records – permitted disclosures. For a mental health record, the provider can only disclose the record as per RCW 70.02 or “pursuant to lawful order of a court.” The burden is with the party seeking the record to obtain the court order. Once the motion is made, it is up to the party who holds privilege over the record to protect the record. This statute applies to the record of an adult. If the client either does not seek a protective order or fails to obtain one, it may be appropriate to disclose.
- RCW 70.02.240(16) – Mental health services – Minors – Permitted disclosures – Mental health record can be disclosed as per RCW 70.02 or “pursuant to lawful order of a court.”
- RCW 5.60.060 – Who is disqualified – Privileged communications.
- (4)(b) – Ninety days after filing action for personal injuries or wrongful death, the claimant shall be deemed to waive physician-patient privilege, if for one then presumed for all physicians and conditions.
- (9) – With some exceptions, mental health counselors, LICSWs, or MFTs may not disclose or be compelled to testify about information acquired in a professional capacity when the information was necessary to render professional services.
- RCW 18.83.110 – Privileged communications. Psychologist/ct privilege to same extent and conditions as atty/ct.
- WAC 246-809/810-035 – Recordkeeping and retention. Required information for counselors to keep in documentation. If the client requests that counselor keep no record what must be documented. Counselor does not have to agree.
- WAC 246-16-235 – Mandatory reporting – License holder reporting other license holders. To report another license holder, the reporting license holder must submit a report when s/he has actual knowledge of a conviction, determination, or finding that the holder has committed an act of unprofessional conduct, or that the holder may not be able to practice his or her profession with reasonable skill and safety due to a mental or physical condition. The holder does not have to report when s/he is a member of a review, providing health care to the holder and s/he poses no clear and present danger to patients/clients; or part of a federally funded program.
- WAC 246-924-354 – Maintenance and retention of records. Psychologists contents and conditions.
- How long to retain records
- WAC 246-809/810-035 – Counselors/LMHC/LICSW/LMFT: 5 years following last visit.
- HIPAA – 6 years of disclosure
- WAC 246-924-354(2) – Psychologists: 8 years, but for minors 8 years or to age 22, whichever is longer.