There is a high-profile murder case winding down in the Chicago area. The defendant has been found guilty of murder and eligible for the death penalty. The jury is now hearing arguments on whether he should be sentenced to the death penalty.
The defense called a psychologist that had treated the defendant’s parents and siblings to testify on behalf of the defendant. The psychologist laid out a litany of issues that the family was treated for. Here and here are a few news articles discussing the testimony.
Am I right in assuming that these treatments between psychologist and his family are confidential? If so, can I infer that the psychologist got permission from the parents and siblings to reveal this information? Or is there any criteria that would allow the psychologist to reveal this information without permission? What if one of the members of the family had died, is the confidentiality still in-place or can the psychologist speak freely?
I don’t question that everything is being handled legally; I am just curious what the particular mechanisms are that make it all legal.
This is a total WAG, but if the Psychiatrist is subpoenaed, wouldn’t he have to tell? I’m not sure with the confidentiality, but couldn’t they subpoena his records and make him testify to the records?
The whole point of patient confidentiality is that doctors’ records and communications are privileged, even from subpoena in most cases.
However, I don’t know if patient confidentiality applies to psychologists, given that they are not medical doctors. (psychiatrists are medical doctors).
My complete WAG is that the defendant and his family agreed to release the information. But don’t take my word for it.
In general, patients of psychologists and therapists enjoy the same, if not greater, privilege as medical patients; although this varies by jurisdiction, all fifty states and the US Supreme Court have recognized it in some way. A therapist cannot waive the privilege; it belongs to the patient. However, a therapist can safely violate the privilege if there is a legally valid reason to do so – to prevent harm, for instance. The Supreme Court appears to regard the privilege as absolute in cases at trial, but the contours of the law are still under development.
I have a very hard time believing that a sentencing hearing would provide sufficient cause to strip a third party of this privilege; however, there are many jurisdictions, and IANAL (and certainly NAJ).
I agree. I assume that in this particular case, the family agreed to release this information in hopes that it would save their son/brother from the death penalty.
Does anyone know the answer to the last question? If a patient dies, do they still have a right to confidentiality?
Yes, with few exceptions, all of which should have been made clear to them at the outset of treatment.
Depending on the state, the psychologist could [in some cases, must] break confidentiality if the relatives were suspected of child or elder abuse, or planned to harm themselves or an identifiable third party.
If the siblings are minors, confidentiality is limited, and the parents can insist on seeing the child’s records whether the child consents or not. (How confidentiality will be handled is to be discussed at the outset of treatment, and parents can agree to respect the confidentiality of the child/psychologist’s communications, but the bottom line is that they can back out on the deal and demand the records at any time if they want, and the psychologist must oblige).
Or, [this is unlikely] if the defendant or some other third party had paid for the services of the psychologist in treating the relatives in question, he could request their records since he is, in fact, the client (the limits of confidentiality ideally should have been discussed at the outset of treatment, so the relatives would have known this from the start).
This is the most likely scenario. The individual family members could choose to waive confidentiality and ask the psychologist to speak about their treatment/release records to the defense team, etc. The psychologist could not elect to do this on his own, unless the conditions listed above were met, or if ordered to do so by the court. Even if subpoenaed to testify, the psychologist could quash the subpoena on grounds that the communications were privileged. If the court overrules this, the psychologist can still limit what he or she reveals to those facts specifically relevant to the case, certain time frames in question, and, in some cases, ensure that sensitive information will only be revealed to another, court appointed psychologist, rather than the whole court.
According to the APA ethics code, the only reason to break confidentiality after a client’s death is to enable the surviving relatives to apply or qualify for benefits.
I believe that in other situations, the next of kin (wife, parent, then eldest child, etc.) might be able to break confidentiality. I can ask my Professional Ethics prof [she’s like the Professor McGonagle of ethics in psychology, minus the robe and wand, but with the cool accent] more specifically about this on Monday and let you know.
Very interesting. Thanks Orange Skinner. Are you studying in the field?
In these cases, do the parents lose this privilege when the child becomes an adult? For example, a father takes a son for counseling when the son is 12. The father can request the child’s records at that time. Once the child is 18, I assume the father can no longer see the records?
Is there ever an issue of overlapping confidentiality? For example, a therapist that is treating several members of the same family may learn the same issue from multiple patients. Is it only necessary for one of those patients to give permission?
This seems problematic. Consider a therapist that is seeing father, son, and daughter. The therapist learns during the father’s session that the son is abusing the daughter. The therapist also has similar discussions with both the son and daughter in their own sessions. Years later, the father could give permission for the therapist to share information learned in the father’s treatment, but the son and daughter might decline the same. And the situation can be further complicated if the father learned the information only by requesting his minor children’s records.
I could see why this might take a McGonagle-like professor to sort out.
As soon as a child reaches majority, the parent is no longer legally authorized to give consent on his or her behalf. Revealing confidential information would, at that point, require the patient’s consent, and that would include revealing it to parents.
As for the “overlapping confidentiality,” one must first clarify why any disclosure would be made in the first place, and to whom. If we’re talking about a court of law, and for some reason the father wanted to reveal his son’s abuse of the daughter, he could indeed permit the therapist to testify to their discussions – but then what? I would think that any facts contained in such testimony would be hearsay, and not admissible, unless the father had personal knowledge of those facts and testified to them himself. I don’t think an ethical psychologist would even confirm that the father could have read such revelations in his son’s file.
The American Psychological Association’s ethical principles may be read here.
When I started seeing a psychologist (at the age of 16), my father’s psychologist said that he wouldn’t treat multiple members of the same family, so he recommended another psychologist for me. I don’t know if that’s a general ethical rule, or just something that he decided to do to avoid issues. But it makes sense to me.
Let us be careful with terminology. Like every other thread on this subject on the Dope, you guys are conflating confidentiality and privilege, which are very different things. Confidentiality is when somebody promises to keep a secret. Anybody can promise confidentiality, but if a judge orders you to spill, you have to spill – of you can go to jail for contempt. A privilege is when certain types of communication are so favored by the state that we permit them to remain secret even if they’re relevant in a legal proceeding. That is: confidentiality equals “I won’t tell unless a judge makes me.” Privilege equals “A judge cannot force me to tell.” That’s why it’s called the privilege – because it’s a special privilege to be allowed to keep certain kinds of secrets in a courtroom, a place where you usually have no right to keep secrets at all.
Beyond that, I think Nametag has the legal angle covered. But it’s impossible to analyze this correctly if you’re not clear on what information might be privileged, and what’s merely confidential.
No prob. I’m a grad student at Eastern Michigan in Clinical Psych in my first year. Ethics are by no means my area of expertise–my personal research/clinical interests are related to human sexuality, romantic relationships, and LGBT issues, though taking a course in Professional Ethics is required for all grad students in clinical psych here (and it’s actually been pretty interesting).
When you turn 18 (unless you’re declared legally incompetent in the meantime) your records should become your records, not your parents, though there may be some snarky loopholes evil parents and/or unscrupulous therapists might try to worm around this. Also, some states have time-limits on how long therapists need to keep a patient’s documents (I think seven years after the close of therapy) before he or she can pitch them. So by the time your 18th rolls around, depending on how old you were when you quit, they might be gone.
In most states (including the two that I’ve lived in, Ohio and Michigan), there are special circumstances brought up with the child (or elder) abuse issue. Any time a therapist even suspects child abuse, they are legally obligated to turn that information over to CPS. This is done regardless of if there is “proof” or not–CPS does the investigating. So, even though the minor son in this case is the suspected abuser, it is the girl’s caregiver who is responsible for her welfare in the home.
I see what you’re saying, though. If one person says it’s okay, and the others don’t, you can only release information relevant to that person who has given approval . Say, I don’t know, a case where both parents had a drinking problem and the dad waived confidentiality and the mom didn’t for some court case where the defense is trying to establish that the defendant (their son) grew up in a “troubled environment” in an effort to gain sympathy and lessen his sentence. The therapist can only speak/provide documentation of the dad’s treatment, and has to “cut out” anything pertaining to the mom (or any other third party). The therapist can discuss the possible benefits of waiving confidentiality, or suggest other ways of going around it (making an exception so he or she can talk about just this one incident, nothing else), but ultimately, each person has the right to keep their info private.
One of the more interesting real-life situations we discussed in class was something to this effect:
A young boy comes in for treatment after his parents die and he is sent to live with his aunt and uncle. He’s depressed, and acting out. Treatment is successful and he has no mental health issues until he is an adult, when his uncle or aunt dies. He falls into another depression and returns to the same therapist he had as a child. The client thinks it’d be helpful to him if he reviewed his file from his childhood to see how he got out of his depressive mood back then.
However, the therapist has notes in the file which reveal information about the boy’s history that he doesn’t know: that his father killed his mother, then killed himself, and that’s why he had to go and live with the aunt and uncle in the first place. Now, the therapist is legally obligated to give the client his records within 30 days of the request, even though he knows it’s going to be potentially damaging to him, especially in such a depressed state.
The therapist’s alternatives? Dissuade the client from looking at the file because he/she feels it would be counter-productive to the client; see if the client only wants a portion of his file, and is willing to ignore the info the therapist doesn’t think he’s ready to see; suggest that it would be more conducive to therapy to view the file only after the depression has been dealt with, if he still wants to then, or, (what I would probably do) produce the files and go over them with the client in session, after preparing him that there is information that he might be better off not knowing.
I guess the take -home message is that while there are laws and ethical standards within the profession (that pretty much have the force of law, at least as far as the therapist is concerned, because breaking them can result in losing your license), the therapist still has a lot of influence in terms of how they go about following the laws and regulations. While therapists are ultimately mandated to do one thing or the other, they can do it in a manner that will hopefully foster the most beneficence for everyone involved, given the situation.
She might even have some magical powers after all–last week she proved that she is totally impervious to changes in temperature. I think there’s more where that came from. Hopefully by the time I get my doctorate, I’ll have been able to catch her transfiguring into a cat. fingers crossed
ETA: I’m talking about confidentiality (the ethics-code enforced notion that you may not reveal information to others about the client w/o his or her permission) in much of my post, and the ways you might be able to get around it or might want to get around it, but be unable to. I’m not getting into privilege (what you are legally exempt from being forced to reveal in court, unless ordered to by a judge, etc). They’re similar, but distinct–sort of ethical versus legal dimensions of the same coin.