From time to time therapists may receive requests from third parties to access the client record or requests from third parties for information about clients. These situations are often nuanced and will require thoughtful consideration of several factors. While it’s not possible to provide an answer that fits every circumstance, this post will seek to provide some big-picture concepts that would need to be considered when responding to a third-party request to access information about clients.
In these situations, MFTs can begin by looking to the AAMFT Code of Ethics and applicable laws for guidance.
The starting point in the AAMFT Code of Ethics for these types of situations is Standard 2.2, which states:
Marriage and family therapists do not disclose client confidences except by written authorization or waiver, or where mandated or permitted by law. Verbal authorization will not be sufficient except in emergency situations, unless prohibited by law. When providing couple, family or group treatment, the therapist does not disclose information outside the treatment context without a written authorization from each individual competent to execute a waiver. In the context of couple, family or group treatment, the therapist may not reveal any individual’s confidences to others in the client unit without the prior written permission of that individual.
Let’s begin with the opening sentence: MFTs do not disclose client confidences except by written authorization or wavier, or where mandated or permitted by law. That opening sentence should prompt MFTs to ask themselves whether the client is consenting to the release of information or whether there is an applicable law that would either mandate release or allow the provider to release information at the provider’s discretion.
To determine whether the client is consenting to the release, MFTs need to first identify who the client is—was this an individual client, couples work, family work, group work, etc. If there are multiple individuals in the client unit, MFTs can take guidance from the language in Standard 2.2 that reminds MFTs that when providing couple, family or group treatment, the therapist does not disclose information outside the treatment context without a written authorization from each individual competent to execute a waiver.
If the therapist does not have written authorization from all necessary parties to release the requested information or requested records, the therapist will be unable to release the requested information, unless the release is mandated or permitted by law. Therapists should be well-versed on exceptions to client confidentiality so that they can respond accordingly to these types of situations.
Turning specifically to requests from third parties to access the client record, sometimes therapists may be reluctant to release the record to a third party even if the client is consenting to the release. Depending on applicable laws, providing a summary may be a solution. Also, depending on applicable laws and the facts of a given case, there may be grounds for withholding access to the record. However, therapists do need to understand that confidentiality belongs to the client and the client is free to waive that confidentiality. There may be room for a conversation with the client about the risks and benefits of releasing the record, but if the client is consenting to the release and the therapist refuses to release the record in a situation where neither a summary nor withholding the record is a workable solution, the therapist may be seen as inappropriately withholding the record at some point. Exactly when that point occurs would likely depend on applicable laws and the facts in question.
Another common question related to this topic is what records the therapist is required to provide once all necessary parties have consented to the release of the record, or it is determined that an exception to confidentiality exists (e.g. applicable law mandates or permits disclosure). The answer to this question will likely depend on applicable laws and the type of request to which the therapist is responding. In some cases, the therapist may provide only limited information, in other cases therapists may need to provide fuller access to the record.
A quick note about permissive disclosure situations—when disclosure is permitted by applicable laws, therapists will likely need to assess the situation to determine whether they are in a situation where disclosure is appropriate given the circumstances. In other words, therapists should be prepared to identify the relevant factors that make a permissive disclosure appropriate. Consultation with peers and colleagues, as well as consultation with a local attorney and your professional liability insurer is advisable in these situations.
Stay tuned for a future post discussing client requests to access records, including a brief discussion of “Psychotherapy Notes,” as defined by the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
As you’ll hear frequently, it is imperative that MFTs know the laws as they exist in their jurisdiction. To find out what the applicable laws are on these issues in your jurisdiction, you can contact your licensing board or other applicable regulatory body, or a local attorney.
