Dear Dr. Berlá,
I am probably getting ready to go through a divorce. Can my psychotherapy records be kept private?
That depends. By law, all licensed health care providers, which includes licensed therapists, must keep your healthcare information confidential. There are, however, certain exceptions to confidentiality. Your therapist may break confidentiality if you present a danger to yourself or others, if you report child abuse, if you report domestic violence, or if there is a court order.
Danger to self or others. There are times when a patient makes it known to the therapist that he or she has intentions to commit suicide or has a plan to inflict bodily harm on another. The therapist has an obligation to take action to prevent such harm from coming to the patient or to another victim. If the patient is believably suicidal, the therapist may have to take steps to ensure his or her safety by either informing family members of the danger, or by causing the patient to be hospitalized. Sometimes a therapist has to make a judgment call if the patient is giving indications of suicidality but has not admitted outright that he or she intends to take such action. The therapist has to make such a decision based on expertise, training, and how well the therapist knows the patient. In the instance when a patient has expressed a threat toward someone else, the therapist is also obligated to act by informing the identified victim and/or the police. An experienced therapist knows the difference between a patient blowing off steam (“I could just kill my boss!”) and a potentially real threat (On Monday, I am planning to kill my boss.”)These situations are always tricky and never pleasant for the clinician, and the decision to break confidentiality under these conditions is never made lightly.
Child abuse or domestic violence. By law, anytime a patient reports child abuse or domestic violence that has not already been reported to authorities, the therapist is required to inform the appropriate agency. In the case of child abuse or neglect, the therapist is required to contact Child Protective Services (CPS) or the Crimes Against Children unit of the police. Those agencies will then conduct investigations involving the child, the caregivers and/or other potential offenders. In the case of domestic violence, the therapist is required to make a report to Adult Protective Services (APS). That agency will then contact the victim only, and offer services or referrals to help the victim keep themselves safe from harm. APS does not contact the offender or anyone else.
Court order. In this instance, a judge has decided that a patient’s therapy records may have direct bearing on a case before the court. This can occur in criminal as well as civil proceedings, which is where family law falls. In the course of a custody battle, it is standard practice for the custody evaluator to obtain treatment information from individual, couples’ or family therapists involved with family members. If you think there is something in your mental health records which is sensitive to you, but which you believe should have no bearing in your court case, you may have your attorney request for the judge to review your records in camera. This means that only the judge will see your records and then decide if they are relevant to the case before turning them over to any experts or to the opposing side. Be aware that if you are undergoing a custody evaluation or any other court-ordered examination, there is no expectation of confidentiality in terms of what the evaluator may present to the court. On the contrary, the evaluator is expected to report his or her findings to the court and the parties to the proceeding.
Outside of these instances, you should always expect your therapist to keep your treatment information absolutely confidential. Your therapist should have informed you of the limits to confidentiality at the beginning of treatment and should certainly be prepared to address any further questions or concerns that arise as treatment proceeds. If you anticipate your therapist having to get involved in your legal proceeding, be sure to raise that issue with him or her and discuss how he or she will respond and what material would be included in your record. With preparation, you should be able to preserve your therapeutic relationship, and not feel betrayed or caught off guard.
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Kathryn Berlá, Ed.D. is a licensed psychologist in private practice in Louisville. She may be reached at 502-412-2226.