Good Practice | Ethics | Law
A THORNY ISSUE
The ethical standards in many areas of social work are still being worked through the legal system. A particularly compelling example of evolving standards concerns social workers’ response to parents’ request to examine their children’s counseling records. At the beginning of the social worker-client relationship, social workers routinely discuss with minor clients and their parents the minors’ right to confidentiality and possible exceptions. Nonetheless, in many cases social workers encounter ethical challenges when parents ask to examine their child’s records because of their curiosity or because of their relevance to legal disputes.
THE LAW - A BLUNT INSTRUMENT
The law regarding a minor's right to confidentiality in most states rests on a simple foundation:
Minors generally cannot consent to treatment; a parent or guardian consents on the minor’s behalf. A parent who consents on the minor’s behalf generally has the right to know the content of the child’s treatment.
UNTIL IT’S NOT
However, a 2005 New Hampshire Supreme Court ruling stated:
"Parents of minors do not have an absolute right to their child’s therapist’s records or the exclusive right to assert or waive the therapist-client privilege on their child’s behalf.”
The Iowa Supreme Court ruled that:
"Mental health professionals can refuse to grant parents access to their children’s health records when disclosing the records isn’t in the child’s best interest.”
California, Florida, Maryland, Massachusetts, and Oklahoma have also addressed this issue. They have consistently ruled that a parent or guardian may waive a minor child’s therapist-patient privilege only when waiver is in the child’s best interest.
A number of courts have also ruled that waiver must not be allowed when the parent’s interests are adverse to the child’s interests.
Most social workers look to the established ethical standards of the American Psychological Association for guidance in such matters. In the matter of a minor’s right to confidentiality, they refer to five standards in particular:
APA Standard 4.01: Structuring the Relationship
“Psychologists discuss with clients or patients as early as is feasible in the therapeutic relationship the nature of therapy, fees, and confidentiality.”
APA Standard 4.02 Informed consent to Therapy:
“That when an individual cannot provide informed consent (such as a minor), the psychologist “considers such person’s preferences and best interests.”
APA Standard 4.03 Couple and Family Relationships:
“Attempt to clarify at the outset which of the individuals are patients or clients and the relationship the psychologist will have to each person.”
APA Standard 5.02 Psychologists recognize that:
“Confidentiality may be established by law.”
APA Standard 5.05 Psychologists disclose confidential information without consent only:
1. "To provide needed professional services."
2. "To protect the patient or others from harm.”
Practicing social workers understand that, from a clinical perspective, the situation is complex. Good clinical treatment may require what the law generally refuses, that is, a zone of privacy.
The judgment required to make the call as to how to interpret the law should be established by constantly conferring with colleagues, management, and local legal counsel. Do not tackle this thorny issue alone.
RAPID CASE MANAGEMENT
SEPTEMBER 15, 2015