Confidentiality and Mental Health

conf_mentalhealth | Volunteer Resources | Legal | Confidentiality and Mental Health
 
Mental health records are confidential. As such, the mental health professional must guard them accordingly. You, too, should be guarding the confidentiality of your CASA child’s information.

A CASA volunteer does not violate a child’s rights – even if it seems like it is what is best for the child. This is what sets us apart from those the child has learned to mistrust.

This area of law is often misunderstood and argued about. So don’t be surprised if you encounter resistance when trying to talk to a mental health professional or get access to mental health information – professionals are only doing what they think is right. The mental health professional may not realize that they need to share information with you. Likewise, some professionals (including attorneys) erroneously think that this information is privileged, or they feel that it should be. Regardless, the following is the current state of the law (and has been for almost a decade). All things being the same, the general rule is this:

If you have a court order authorizing access to mental health records a CASA can receive information from the mental health professional that discloses:

  • The child’s participation and progress in therapy and
  • If there are any further orders or services that might be necessary for the child.

Note, however, that the therapist/professional must not tell the confidential details of the therapy.

Here are some things to think about:

1. Do you need the information?

Before you seek any mental health records ask yourself, “Do I need this information? Or am I just being curious?” If you need the information, then you must be careful how you access it – and you should only access the information that is absolutely necessary to do your duty.

A perfect example is the actual written psychological evaluation (psych-eval). A “psych-eval” is going to be filled with personal information, and describe the tests administered, etc. Do you really need to read the actual psych-eval when what you really want to know is – what services could the child benefit from?

You probably do not need to see the entire psych-eval to make that assessment – and others would not have to either.

2. Forget the Diagnosis

Caution should be used when associating a child and a diagnosis. It is too easy and too damaging to use labels as a crutch for what a child is going through. As many child psychiatrists will tell you, diagnoses can be misleading to nonprofessionals.

Diagnoses are an attempt to take an individual’s symptoms and categorize them according to the “Diagnostic and Statistical Manual of Mental Disorders – also known as the DSM-IV. The DSM-IV is a manual that is published by the American Psychiatric Association and is a tool that has its limitations.

Why should we forget the diagnosis?
First, mental health care is an imprecise practice. That deserves repeating: MENTAL HEALTH CARE IS IMPRECISE. This means that different mental health care providers can (and will) give different diagnoses to the same child – using the same information. Also, individuals change, grow, and experience life – and thus the diagnoses change.

Second, a “diagnosis” is required for Medi-Cal mental health providers to get paid for their services. So, (while not always the case) a diagnosis might not really apply to the child – or may not apply the way one might assume. The diagnosis could be used merely as a placeholder, or be merely a working diagnosis.

Third, the child’s diagnosis is privileged information, and unless the child authorized the release of that information, the child’s rights are most likely being violated.

And lastly, CASA volunteers can play an important role in ensuring that our youth are not labeled, not pigeon-holed into something that limits their potential. Address the symptoms of the child’s experience, and try to avoid the easy-to-do labeling that can unfairly prejudice the child.

As a CASA, you probably have a specific court order allowing access to confidential records, and section 107 of the Welf. & Inst. Code allows the judge to grant you that access.

3. Delegation of Court Authority and Evidentiary Privilege

However, since you are an officer of the court, your ability to access these records should be seen as a delegation of the court’s authority. We must be mindful that there are rules that limit what evidence the court can have. When the court does not have the authority to see certain records, then the court cannot make an order allowing you (the court-appointed CASA) to see the records either. Simply put, if the judge can’t see it, then neither can the CASA.

Let’s look how the law breaks down:

Section 107 of the Welf. & Inst. Code states:
Upon presentation of the order of his or her appointment by the CASA, and upon specific court order and consistent with the rules of evidence, any agency, hospital, school, organization, division or department of the state, physician and surgeon, nurse, other health care provider, psychologist, psychiatrist, police department, or mental health clinic shall permit the CASA to inspect and copy any records relating to the child involved in the case of appointment without the consent of the child or parents. (emphasis added)

a. “… and upon specific court order”
As a CASA, you are usually given broad access to confidential records – but it is the “order” that triggers this access. Make sure your order allows you to have the information you are requesting.

While the general practice in every county is to have the court give CASAs access to the full body of records, the judge can give you as much or as little as he or she wishes (within the bounds of the law). You serve at the judge’s discretion, and he or she decides what duties you are to perform.

This usually means that in court, the judge will protect the CASA’s ability to fulfill their role – as an independent investigation requires access to all confidential information. The practice in California is to have a pre-written order of appointment that states that you as the CASA can access records as described in section 107 of the Welfare and Institutions Code.

b. “… consistent with the rules of evidence”
The term “consistent with the rules of evidence” refers to the rules that limit the court’s ability to see certain mental health information – we are referring specifically to the psychotherapist-patient privilege.

What is a privilege?
Confidentiality and privilege are not the same thing. Think of privilege as a deadbolt lock on the front door of your house – it is an additional layer of protection aside from the fact that the door is shut and has a lock built into the knob.

For our purposes, you should know that the court has access to a great deal of confidential information – but can be stopped from accessing privileged information. n this context, a “privilege” or “evidentiary privilege” is the right to stop certain confidential information from coming into evidence – meaning that the judge cannot see or consider the information when making his or her decision. “Privilege” also works to stop others from communicating that confidential information.

Think of some privileges you might have heard of before, like attorney-client privilege, clergyman-penitent privilege, and the physician-patient privilege, and the psychotherapist-patient privilege. A child in dependency court has the right to assert all of these privileges.

The purpose of the psychotherapist-patient privilege is to protect the privacy of a patient’s confidential communications to his or her psychotherapist.

Who Can Claim the Psychotherapist-Patient Privilege?

Child and/or the Child’s Attorney

In a dependency case, who can claim privilege depends on the age and maturity of the child. The court must make a finding that the child is or is not of sufficient age and maturity to claim a privilege.

While the court always needs to make a finding, it will be presumed by the court (subject to rebuttal) that a child has sufficient age and maturity to claim a privilege if he or she is over 12 years old. If the child is 12 years old or younger, or not mature enough, the court will make a finding that the child cannot exercise the privilege – and then the minor’s attorney will hold the privilege.

The Mental Health Provider

A mental health professional must always “claim” privilege and not give out information unless there is a waiver from the child (or the one who holds the child’s privilege).

Who Can Waive the Psychotherapist-Patient Privilege?
A privilege can be waived – both on purpose and by accident. For our purposes, it is important to note that if the child is of sufficient age and maturity, the child can waive privilege even if their attorney has claimed privilege. Therefore, if you feel it is essential to get access to privileged information, talk to the child, and have them talk to their attorney – basically you can ask the child for his or her permission. If they want you to see the records, they can sign a waiver.

What, if anything falls outside of the Psychotherapist-Patient Privilege?
Privilege only applies to certain information that is told in confidence. Therefore, there can be a debate about what is, or isn’t, privileged information.

Relevant to child welfare, no privilege exists when:

  • The therapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.
  • The patient is a child under the age of 16 AND the therapist has reasonable cause to believe that the patient has been the victim of a crime and that disclosure of the communication is in the best interest of the child.
  • The psych-eval is conducted under a direct order of a court per section 730 of the Evidence Code. (That’s correct; privilege does not apply if the court makes an order for a psych-eval and wants to know the information. Note: This is not the same thing as having a psych-eval be part of the court-approved case plan – if it is just part of the case plan, then privilege still applies. To get around privilege, the court must make a specific order for appointment of a therapist or evaluation under section 1017 of the Evidence Code.)
  • The child’s participation and progress in therapy and if there are any further orders or services that might be necessary for the child. (Note, however, that the therapist/professional must not tell the confidential details of the therapy, including any diagnosis).

Who Can Have Access to Privileged information?
Social Worker (Probation Officer, or any other person who is legally authorized to have custody or care of the child).
Again, if (and only if) the provider of mental health care determines that the disclosure is reasonably necessary for the purpose of assisting in coordinating the treatment and care of the minor, that provider may disclose that limited bit of information.

However, the social worker (or other person) must not further disclose the information unless the disclosure is for the purpose of coordinating mental health services and treatment of the minor and the disclosure is authorized by law. This means that the information should not find its way into the court report (or be communicated to the CASA or anyone else) unless it is absolutely necessary to provide the identified services to the child.

Minor’s Attorney
The minor’s attorney is given access to virtually any piece of information concerning the child’s case. This includes mental health records Welfare and Institution’s code §317(f) states that the attorney for the child shall have access to all of the child’s records kept by any physician and surgeon, psychiatrist, psychologist (and registered assistant), family and child counselor (and trainee and unlicensed intern), clinical social worker, etc.

4. Are the Child’s Rights Being Protected?

If there has not been a valid waiver of privilege, and the social worker or other person is passing around the child’s psych-eval, then this may be a violation of the child’s rights. Be aware when this happens and talk to the child’s attorney.

5. Working Well with the Mental Health Professional

As a CASA volunteer, you will be called upon to investigate every aspect of the child’s life – provision of mental health services is certainly no exception. Therefore, you will need to call and discuss the case with the social worker, attorney, doctors, and even the therapist and/or psychiatrist.

Working with mental health professionals can be among the most challenging relationships. This is because the law concerning confidentiality and privilege is so confusing and it is often misunderstood and misapplied.

Many mental health professionals might assume that the social worker is the one who can give the ok to release information – which is simply not true. Others will not release information without a subpoena or other high level court action – also unfortunate. Others still, will tell you anything and everything you want to know – which might intrude upon the privacy rights of the child.

Therefore, you must approach a mental health professional with a few thoughts in mind:

  • If they resist releasing records, it is not personal. They are just trying to safeguard their client’s privacy – and that’s a good thing;
  • They are professionals, and as such are used to doing their job with a great degree of skill and care. Your questioning their decisions is not going to sit well all the time;
  • “What do I know, I’m only a doctor.” Many professionals feel slighted that their judgment is being questioned. Explain with kind insistence that you are an appointed by the court, and that it is your role to do an independent investigation – and this means that you must ask the questions again – just to make sure that everything is in order. At the same time, you can reinforce your appreciation for their taking the time to work with this child you care about;
  • Explain to them your role and purpose, and that you have been appointed by the court to investigate the child’s situation and provide your own recommendations – and you need their input to formulate them. While some may have worked with CASAs before, it is possible that you are their first opportunity to work with a CASA. You cannot assume that they know your role in the system;
  • Often it is helpful to become their partners. For example, if you feel that therapy is valuable, but the child is resistant, let the therapist know that you are working with the child to encourage participation;
  • Honestly ask yourself what you truly need to know – reading the actual psych eval does not really give any further insight into the child’s needs. Often, the recommendations are all that are needed;
  • If problems arise, do not escalate the situation – call for reinforcements, like your program supervisor;
  • If all else fails, take a step back, and try to get the information from the social worker;
  • Ask the child for permission to see the information – and if they say yes, get a waiver. As long as you don’t try to pressure or trick them, this can be a very useful approach. You are always encouraged to make sure that the child talks about it with their attorney first – that way you know that they can make an informed decision and it won’t make the attorney feel blind sided.
  • Ask the judge. If the judge says that he or she does not want you to have the information, then be fine with it. The judge has the last word.