Docsplainin' -- it's what I do

Docsplainin'--it's what I do.
After all, I'm a doc, aren't I?

Thursday, November 12, 2009

You're not going to tell my parents about this, are you?"

How much privacy does a teenager have a right to in therapy?

Not much, actually, as it turns out. Here's why.

"Privacy" is how we typically think of the kinds of issues such as whether a parent has the right to go through a teenager's room, read his text messages, examine her browser history, or friend a son or daughter on Facebook. In that regard, how much privacy a child has will vary from culture to culture, and within a culture, from family to family, because it's a value question. As relates to a child's mental health records, "privacy" has to be distinguished from terms such as "privilege" and "confidentiality".

Legally, we have the right to protection from undue intrusions into our private lives, and that includes the right to have our medical records kept private. "Confidentiality" is the client's expectation, and our professional obligation, that we not further disclose the private information shared with us. A client can waive that by signing a release; in the case of a minor, only the parent or guardian can do that, and they can do it against the client's will if they wish.

"Privilege" is a special exception from the obligation to testify in open court to what we know from a client's communications in therapy. As such, privileged communications are protected from discovery, which means that they can't simply be subpoenaed. A client can waive privilege, and in the case of a minor, the parent or guardian can waive it--again, whether the minor wants it waived or not. If the client's legal representative makes his mental health an issue in a legal proceeding, that is an automatic waiver.

On the upside, most states allow minors to seek treatment without parental consent for such issues as sexual abuse or substance abuse, and in these sorts of situations of course the point is moot. By definition the minor will have control over his records.

So how much privacy a kid in therapy has depends on what kind of information-sharing we're talking about, and with whom. A minor client generally cannot act on her own behalf in that regard, any more than she can in any other legal matter. Ultimately it's going to be up to her parent(s) or guardian. And this includes the power to compel the therapist to discuss the child's therapy with the parents, and even to let them read the record. So the real question becomes, "How much right do parents have to information about their children's treatment?"

Legally, in most situations, they have every right to all of it. Practically speaking, however, privacy is a sine qua non for therapy. No teen is going to share any but the most banal of her thoughts and feelings if she thinks I'm going to trot (well, ok, limp) across the hall to the waiting room after our sessions to report to her parents, "Guess what your daughter just told me!"

For that reason, most of us who see minors try to negotiate the gap between what's legal and what's practical before therapy begins. We discuss the dilemma with the client and her parents. We ask the parent(s) to sign a statement agreeing that they will (a) not have access to the record and (b) be given only general information about their child's progress in therapy unless there is some threat to that child's safety.

This is the pertinent language from my Consent to Treatment paperwork:


Patients under 18 years of age (who are not emancipated) and their parents should be aware that the law allows parents to examine their child’s treatment records unless I believe that doing so would endanger the minor client or s/he and I agree otherwise. Because privacy in psychotherapy is ESPECIALLY important to progress with teenagers, it is my policy to require an agreement from parents that they consent to give up their access to their son or daughter’s records. I will provide general information about the progress of a teen’s treatment and his/her attendance at scheduled sessions—and nothing else. I will also provide parents with a summary of their son/daughter’s treatment when it is complete. Any other communication will require the teen’s consent, unless I feel that that s/he is in danger or is a danger to someone else, in which case of course I will notify the parents of my concern. Before giving parents any information, I will discuss the matter with the minor client, if possible, and do my best to handle any objections s/he may have.
The older the child, the more likely I am to obtain his permission, too, because it is a decision that affects the minor and I believe minors should progressively take more responsibility for their own lives as they approach adulthood. Developmentally, this is a gradual process, not an ability that manifests full-blown on the day a person turns 18. That, and being out of control of one's life not being a pleasant sensation: Anything I can do to increase a client's sense of power and control must therefore necessarily be A Good Thing.

So far, so good. Sounds simple, right? Well, no. In the first place, the written agreement may not be enforceable. Fortunately, most parents get the need for privacy, and, having the children's best interests at heart, will respect it. But if push came to shove, I probably would have to open the records to a parent or be in contempt of court. That's never happened in several decades in practice: My problem is more usually that I have decided I need to bring the parents in on something, and the teen does not wish to.

The second problem is, how do we define "danger"? Some things are obvious: A teen has suicidal ideation, a plan, the means to do it, and clear intent (like a time and a place) and I can't negotiate any solution in the session. A no-brainer, that. I pick up the phone and call the parents.

But what if the child is using drugs? Having unprotected sex? Does it make a difference whether it's pot or crack? Whether the sex partner is a kid his age or someone 20 years older? What if he's driving drunk? Or just driving too fast? Do I tell parents if a kid is ditching school?

Therapists constantly weigh these questions, and in practice different ones of us resolve them differently--depending on our values, the minor, the parents, and the situation. So in practice, there's a lot of variability. Some practices don't limit parental access at all. Others believe that minors, especially older teens, should be entitled to the same protections as adults, regardless of what the law says. In this view, the child is the client, and it is to them that we owe our duty of confidentiality. Thirty years ago, the American Psychiatric Association had a task force look at the matter, and they recommended that the age be dropped to 12.

The American Psychological Association is not much help. Their recommendations range from respecting a minor's privacy at the same level as an adult's, to establishing local policies in accordance with the law, recommendations which are obviously and completely contradictory.

So while legally a teen has little right to privacy, in practice most teens have complete, or nearly complete, confidentiality observed. But again, there's lots of variation. So if you are a teenager thinking about getting into therapy, or thinking about sharing something big with your therapist, my best advice is to ask her or him what her policy is, and what she might be likely to do in a given situation.

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