This article is published courtesy of the Summer 2010 Wisconsin Journal of Family Law; published by the State Bar of Wisconsin Family Law Section.

By Kip Zirkel, Ph.D., Family and Children's Center, La Crosse

Nov. 3, 2010 – The positive impact of mental health counseling is fundamentally dependent on a client’s perceived trust that the information shared will be treated confidentially and will not be shared with others.¹ This is especially important for children, whose mental health records do not enjoy the same protection as those of adults. Wisconsin Statutes permit the disclosure of children’s mental health records to parents or other third parties, given proper notice, with certain exceptions.² This article will discuss arguments against such disclosures and will present several alternatives to allowing parents access to their children’s records.

Parents involved in custody or placement disputes may have a strong interest in obtaining their children’s records, not only for reassurance that their child is “doing OK,” but also to find information that may strengthen their own court cases. Often a parent’s attorney will send a subpoena duces tecum requesting a child’s records. If the court appoints a guardian ad litem, the GAL may want to obtain information from the children’s therapists, information that may help the court decide what custody and placement options are in the child’s best interests.

Generally, children have little voice (with certain exceptions) in determining how their records will be used, and who will have access to them. Children as young as five years old may ask their counselor, “Are you going to tell my mom or dad what I am saying?” Teenagers are especially sensitive to loss of privacy in their counseling sessions, and at times teens have refused to continue in counseling after discovering that their parents gained access to their counseling records or otherwise discovered information that the teens assumed would be confidential. Decisions to release a child’s confidential counseling information should be carefully considered, exploring the potential risks inherent in such disclosures.

There are valid reasons why a parent would seek access to a child’s records. For example, the parent who brings the child to counseling may seek assurance that the child is receiving effective treatment and that the presenting symptoms leading to the referral are being resolved. The parent may also seek guidance from the child’s counselor about what interventions to implement at home. The issue becomes more complex in child custody situations when each parent, faced with the prospect of “winning” or “losing” the children, may seek information from a child’s counselor in support of his or her goal.

Other than releasing the child’s counseling records to the parent, several alternatives are available to parents to learn about their child’s progress in counseling. Many therapists simply share information with the parent in phone calls, emails, or office meetings. HIPAA (Health Insurance Portability and Accountability Act of 1996) regulations require that only the most pertinent and essential information be shared with the individual requesting a child’s records, since most mental health records contain information that may have little relevance to the goals of the disclosure. Meeting with a parent to discuss a child’s progress is advantageous because the information shared can be specifically tailored to the parent’s concerns. Further, one can never be certain where written records will end up or who will have access to them once the records leave the office.

Various rules, codes, and guidelines govern how and when a therapist may release information to a third party, including the Wisconsin Statutes (primarily § 51.30), Wisconsin Administrative Codes (primarily DHS 92.05), HIPAA regulations, the therapist’s own professional code of ethics, and the therapist’s specific agency regulations. In terms of providing a therapist with legal backing to refuse a request for release there is a section in the Wisconsin Administrative Code that states: “The treatment facility director or designee may only deny access to treatment records other than records of medication and somatic treatment. Denial may be made only if the director has reason to believe that the benefits of allowing access to the patient are outweighed by the disadvantages of allowing access.”³ Additionally, “if a minor is receiving alcohol or other drug abuse treatment services, the parents shall be informed that they have the right of access to the treatment records only with the minor’s consent…”⁴

Many child therapists attempt to balance the desire to maintain their child client’s confidentiality (realizing that children and especially teens are sensitive to this issue) with the needs for parents or other third parties to have access to this information. Most therapists treat requests for access on a case-by-case basis. For example, if upon a request to release a child’s records the therapist decides against releasing the records, the therapist documents in the case file the reason for the refusal and then, if necessary, obtains professional or legal consultation to support that decision. However, there are several alternatives the therapist may consider in addressing a request for information that attempt to balance the twin goals of maintaining the client’s ongoing trust in counseling and sharing useful information with interested third parties, including parents.

First, a therapist may simply insist on oral exchange of information only, which enables the therapist to control what information is pertinent or useful and what information is not. In matters of contested custody cases, this may be a useful option when the child’s guardian ad litem seeks assistance from the therapist to more fully understand the child’s issues.

Second, a treating therapist may simply write a letter to the requesting party responding to the specific inquiry made, discussing only aspects of the treatment that are pertinent to the issue at hand.

Third, a therapist may refuse to disclose any information whatsoever, believing that protecting the client’s privacy trumps all reasons supporting disclosure. The argument may be made that guaranteeing confidentiality (with the statutory exceptions outlined in Wis. Stats. § 51.30) best serves the mental health interests of the public. Still, parents of minors may insist and even threaten court action in their efforts to gain access to their children’s records. It may be useful to inform those parents of the unintended risks of such disclosure, using the form on page 49. This form simply lets the parent know eight possible risks once he or she gains access to the minor’s records. While the form itself carries no legal force (unless incorporated into a court order), the requesting party will likely end up with an accurate and competent understanding of the risks involved in “violating” the client’s privacy.

Below are listed each of the items included on the form with the rationale governing its inclusion:

1. I understand that my child has the right to be informed of my request to review his or her records.

There is no legal obligation in Wisconsin to inform a child that a parent has requested access to his or her records. Indeed, most children are not even aware that records are kept, although many develop a curiosity regarding any notes that the counselor may take during the session. It is good practice, however, for the counselor to inform children, using developmentally appropriate language, that certain items of information may be shared with one parent or the other, or both. This disclosure will head off any serious blow to the trust the child has developed in the counselor should that child later become aware that a parent has gained access to information shared in counseling. Often it is useful to explain to the child or teen that his or her parents “wish to have some advice from me regarding your counseling. I may have to talk to them about what we talk about, but I will talk to you first and explain the reasons why I may have to talk to them. I hope that the advice I give them will help them be better parents for you and will help things be happier for everyone at home.”

2. I understand that the child’s other parent has the right to be informed of my request to review the records and may obtain a copy of the same records.

Again, there is no law or statute stating that one parent has to be informed that the other parent has requested a child’s records. However, it is almost certain that eventually the parent will find out and may demand a copy of the same records. While there is no legal obligation for the therapist to inform the other parent regarding the request, it may be good professional practice to inform the “non-requesting” parent that the other parent is seeking a copy of the records.

3. I understand that, in order to protect the confidentiality of others, any references to any person not covered under the release will be removed from my copy of these records.

There are various rules and regulations governing this issue. If the records are released, the therapist will of necessity have to review each and every note, redacting any sections originating from any party not covered in the release. However, note that comments made by the child about a third party are not covered under this requirement, and may remain in the record.

4. I understand that my child’s counseling in the future may be compromised by the fact that the child will become aware that I have reviewed the records, and that my child may wish to terminate counseling as a result.

This is perhaps the most critical item in the form itself. The requesting parent should be aware that the child may become less forthcoming in future counseling sessions, with the result that any further counseling may become at best less productive and at worst a waste of the client’s (and the parents’) time and money.

5. I understand that my child may experience a negative reaction when he or she becomes aware that I have reviewed the records, and may consider that action a violation of his or her privacy.

This reaction is especially common for teens, whose developmental task increasingly involves developing an independent sense of self, a secure identity, and a sense of privacy related to certain intimate aspects of their lives. This is why the issues of confidentiality should be addressed at the beginning of counseling, so that the teen is fully aware of the limits to confidentiality.

6. I understand that my relationship with my child may be compromised or affected in a negative manner by his or her awareness that I have reviewed the records.

This observation is based on clinical experience with children and teens, who have reported feeling that their private lives have been intruded upon and that “nothing is safe or secure from inspection by my parents.” Often child clients become angry with their therapists for revealing to their parents aspects of their lives that they would rather keep private. There are times when the aggrieved child complains to the non-requesting parent that they no longer wish to return to counseling, saying “Who can I trust?”

7. I understand that there are alternative ways of becoming informed regarding my child’s counseling progress without the risk of violating his or her privacy in reviewing his or her records, and that I have chosen not to pursue those alternative methods at this time.

Alternatives noted above.

8. I am aware that information obtained in these records, if admitted as an exhibit in court, may be used against my interests.

This risk is particularly important in contested custody cases. The case could be made where a parent’s demand to obtain records and subsequently questioning the child about the content of those records could be considered a form of emotional abuse of a child.

9. I am aware that these records, if not disposed of properly, may be reviewed by other individuals either known or not known to me.

Self explanatory.

10. Finally, I am aware that there may be other unknown risks that might occur as a result of my review of those records.

Self explanatory.

In summary, attorneys involved in contested child custody matters, or in any judicial proceedings involving minors, should be aware of the risks inherent in disclosing children’s confidential information to third parties, and should consider alternative means for accessing information shared in the children’s counseling.

About the author

Kip Zirkel, Ph.D., is a consulting psychologist at Family and Children’s Center in La Crosse. He has more than 30 years of experience working with children and parents involved in contested custody disputes, helping them find practical alternatives to resolving their differences in the courtroom. He also has presented at State Bar of Wisconsin meetings and has conducted many GAL trainings statewide. He is the author of the popular Planning for your Children: A Parent’s Guide to Custody and Placement.

Thanks to John Zervopolous, J.D., Ph.D., for his invaluable advice and suggestions on this topic.

Related:

PINNACLE seminars: Mental Health Records: Privilege, Privacy and Disclosure – OnDemand

Hearing Their Voices: Understanding the Growing Child - Webcast Replay

Hearing Their Voices: Understanding the Growing Child (2010) - OnDemand

Endnotes 

¹See Jaffee v. Redmond, 518 U.S. 1, 10(1996)
²Wis. Stats. § 51.30.
³Wisconsin Administrative Code DHS 92.05(1)(b)1-2.
⁴Wisconsin Administrative Code DHS 92.05(1)(c).