Commentary on Kleinman and Walker: “Protecting Psychotherapy Clients”

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Notes

For example, CIT guideline 7.7 refers to disclosures to third parties, and guidelines 7.8 and 7.9 to disclosures to the legal system. However, guideline 7.7(c) references privilege and guideline 7.7(d) discusses potential conflict between disclosures to the legal system and disclosures to third parties. Future versions of the Guidelines should provide a distinct division between the two recipients of confidential information, because the requirements for disclosure differ significantly.

To be completely accurate, confidentiality laws may, under certain circumstances, apply. For example, if the patient's attorney seeks disclosure of the patient's records, the CIT should execute an authorization for disclosure (at minimum).

The issues can be complex, and the CIT is well advised to seek legal advice from a licensed attorney, regarding their specific situation. Generally, privilege laws relate to the rules of evidence, and regulate the legal system (not therapists). Privilege laws determine whether the Court will admit the confidential information as evidence. However, the CIT should be mindful that only time a CIT can intervene is when the information is requested; once in the possession of an attorney, the CIT has no input regarding whether the information will be disclosed to the legal system. A further caution is the patient's attorney may not be aware of everything contained in the records, and once obtained by the attorney, there is a greater possibility of further disclosure via discovery. Additionally, once the Court waives privilege, that decision overrules any state confidentiality law or HIPAA regulations, because the disclosure is “required by law.” Although a HIPAA authorization for disclosure might permit the therapist to disclose information, use of state or federal psychotherapist-patient privilege law is preferable, because it is more protective of the patient; at the very least, raising the issue of privilege (with patient and/or the legal system) permits the system to address the issue, even if the ultimate decision is to disclose.

Interestingly, when faced with allegations of licensing law violation, they advise that the therapist “is to follow the required professional guidelines for the profession under which the therapist is licensed” (Kleinman & Walker, 2014, p. 358). They appear to have conflated professional practice guidelines (American Psychological Association, 2004) and licensing law.

5 U.S. Code § 552a.

20 U.S.C. § 1232 g; 34 CFR Part 99.

42 C.F.R. Part 2.