Issues of Confidentiality and Consent with Minors

Because children and adolescents present some special, complicated ethical (and legal) issues, psychologists treating children may unexpectedly find themselves confronting these issues.  Even psychologists who do not usually treat children may sometimes wish to include a child in a family therapy session or an adult client may request that his or her child be seen once or twice for a brief assessment, for example. Psychologists who see a child however briefly and for any reason should be aware that the APA Ethics Code Standards regarding confidentiality and consent do apply whenever children are treated even though children cannot, under most circumstances, legally consent to treatment. (See Ethics Standard 3.10b) 

Except in certain legal circumstances, it is therapeutically and ethically essential that psychologists clarify the relationship and confidentiality issues with BOTH parents prior to meeting with the child (Standard 4.01) and the psychologist should explicitly discuss what types of information will be shared. In most individual therapy situations, the parents are entitled to the diagnostic impression, information about progress in therapy, and recommendations as well as agreeing to a treatment plan but not to the psychotherapy notes or details of what the child said or did during sessions. At the first meeting with the child, preferably an individual meeting, the psychologist should discuss confidentiality and information sharing in developmentally appropriate terms and try to assess whether the child is in agreement with proceeding. In family treatment situations, psychologists should clarify with all parties which individuals are clients or patients and the relationship the psychologist will have to each person (Standard 4.03).

To avoid future misunderstandings, it is very important to obtain consents (or assents in the case of children) in writing from all relevant parties. A model child therapy contract can be found at (update cite) . Be particularly careful to be aware of all relevant issues before undertaking treatment of children in divorce situations. Jeffrey Younggren, Ph.D., has a helpful summary of good practices to follow when treating children in divorce situations in (update cite). Under some circumstances, minors aged 12 or older can consent to treatment. A nice summary of the California Minor Consent Laws can be found at (update cite).

Responding to a Subpoena

Note: Anytime you receive a subpoena, consult with an attorney and document your consultation.

1. Calm down first. Anxiety is usually the first response. 

2. Read the subpoena carefully in its entirety for a clear and accurate understanding of the request.  Does it require you to turn over documents (Subpoena Duces Tecum) or testify? Determine the date of production. It should be either 20 days from the date the subpoena was issued or 15 days from the date you were served, whichever is later. 

3. Note whether a “Release of Information” signed by your client or a “court order” from a judge (in rare instances) is attached to the document. In any case call to inform your client. If the client or her attorney has not been served with a copy of the subpoena, it may not be valid.

4. If there is no release of information signed by your client or a court order, assert that the information is “privileged”, not identifying your relationship to the client. If your client has no attorney, you can seek guidance from the court. The privilege can be asserted before the production date via a ‘motion to quash’ the subpoena - a legal request to the court to declare the subpoena invalid or without legal force. 

5. If a release is signed by your client but there is concern about information to be released being harmful to your client or a third party (e.g. a spouse), discuss the scope of the subpoena with your client and/or her attorney. You or the attorney can inquire as to whether the requestor will accept a limited disclosure of information or you can assert the privilege through your client’s attorney. Any agreement to limit the scope of the production should be confirmed in writing.

6. Wait for the production date specified in the subpoena to produce the records, giving your client’s attorney maximum time to respond to or challenge the subpoena on the client’s behalf (‘motion to quash’). If you have difficulty responding in the required time frame, ask the requestor for consideration. Any agreement to extend time should be confirmed in writing.

 7. Reminder: contact an attorney and document all legal, ethical, and/or clinical consultations and contacts related to this subpoena.

Have Medicare Clients Self-Pay?

A psychologist cannot have a client who has Medicare pay out of pocket for services rather than bill Medicare, unless the psychologist has officially “opted out” as a Medicare provider. Even psychologists who have never been Medicare providers nor billed Medicare are subject to this national Medicare regulation. Failure to opt out can result in Medicare forcing the psychologist to refund the self-pay fees that were collected while the client had Medicare. Be aware that a self-pay or private insurance client may become Medicare eligible during the course of treatment.

To opt out, the psychologist must send a signed “opt-out affidavit” to The Center for Medicare and Medicaid Services (CMS).  Medicare lists 12 requirements for a proper opt-out affidavit. In California, this affidavit can be sent to CMS, Division of Financial Management and Fee for Service Operations, 90 – 7th Street, Suite 5-300, San Francisco, CA 94103-6706. 

To have a Medicare client self-pay, the psychologist is also required to have the client sign a specific informed consent “private contract.” Medicare lists 15 requirements for this contract. For the details of the Medicare opt-out requirements, see Chapter 15, section 40 of the Medicare Benefit Policy Manual at (update cite) or call the CMS regional office at 415-744-3602.

Privilege After Death

When a client dies, we are faced with a new “spin” on the ethical and legal issues surrounding confidentiality of our case record. An example of a particularly sensitive situation is when a married male client has disclosed, during the course of treatment, a long term affair unknown to his wife. If the client dies and has left a will naming his wife as his personal representative/executor of his estate, the privilege passes to his wife and she then theoretically has access to the case record. Provided below are some brief legal and ethical considerations that are relevant to a situation such as this as well as others which are similar but less complicated. The information is provided only to familiarize you with some of the concerns you should be aware of and not intended to be comprehensive or a substitute for legal advice. If you are facing a request for information from a decedent’s personal representative, you should immediately contact an attorney for guidance.

Under California law, at the client’s death, privilege passes to the personal representative of the decedent named in the will. If the client dies intestate (there is no will), the successor generally follows this order: spouse, child, parents. Written authorizations to release information obtained before a client’s death are no longer valid once the death occurs. You must obtain a new authorization from the personal representative.

There are certain legal exceptions to confidentiality in these cases. For example, if abuse is suspected, you may be expected to provide information without an authorization from the personal representative. Additionally, if the coroner, in the course of investigating certain specific situations, requests information from you, you may be required to provide that information without authorization. Examples of those situations are: identification of decedent, location of next of kin, suicide, and the possibility of a public health issue. In cases where you are asked to provide information without authorization and you have decided to comply with the request, you should only provide limited information and it must be provided without delay.

If a review of the case suggests disclosing information to the personal representative could cause significant harm to another person, a therapist may be able to assert the privilege and withhold the information altogether or be required to provide a summary of the information requested. If a summary is to be provided, the therapist must agree to transmit the information to another mental health professional so that person can speak with the personal representative. 

The 2002 APA Ethical Standard 4, “Privacy and Confidentiality” offers some guidance to psychologists regarding disclosure of a deceased client’s record. In 4.01 we are reminded that “the extent and limits of confidentiality may be regulated by law…” Examples above reveal how California law applies to psychological practice in these situations.   Disclosing confidential information with “the appropriate consent of…[a] legally authorized person” is discussed in 4.05(a).  Section 4.05(b), notes that when the client has not provided the consent, there must be a “valid purpose” for the disclosure. 

The American Medical Association has developed specific ethical guidelines for handling confidentiality after death. A helpful discussion and listing of their guidelines can be found in this document. The general thinking of professional ethics in this regard is discussed in an article by Werth, Burke, and Bardash in “Ethics and Behavior” (2002) titled “Confidentiality in End-of-Life and After-Death Situations.” 

Any situation which involves privilege after death issues can become quite complex and convoluted. APA Ethics, state laws as well as HIPAA and other federal regulations must be considered. This issue has also been addressed in the Appeals Courts further complicating the determination of an appropriate course of action. Anytime you receive a request for information from a deceased client’s record, you should obtain the assistance of an attorney.