By: John A. Riolo, Ph.D., and Wendy J. Murphy, JD
Every social worker and other mental health professional keenly understands the importance of confidentiality. Unless our clients know that what we tell them will be kept private, they will be less likely to discuss necessary but perhaps embarrassing and even incriminating information with us. For this reason, the major mental health disciplines have fought to obtain privileged communication status, and clients of psychologists and social workers have such a privilege in many states. Although there are notable exceptions, such as mandated reporting of child abuse and a duty to warn third parties of imminent impending danger, what this means is that the therapist has a right and a duty to decline to reveal private and protected information without the consent of the client or a court order.
A subpoena is not a court order, and even court orders should be resisted if issued without due process or sufficient regard for privacy rights. In many jurisdictions, a court order can be challenged by filing an appeal, usually after the recipient of the order is held in contempt. This sounds intimidating, but the contempt action is not an act of disobedience so much as a mandatory procedural prerequisite to appeal. Any appeal taken in good faith will automatically stay the sanctions against the contemnor, so that a higher court can determine whether the court order is valid before records are disclosed.
The important difference between a court order and a subpoena cannot be overstated. For example, if a client told a social worker, during the course of individual treatment, details about an extramarital affair or a compulsive use of pornography, the client’s spouse or the spouse’s attorney could not use a simple subpoena to compel the therapist to testify or release records. A court order would have to be issued after a hearing to determine whether disclosure was necessary, and typically such orders are denied, because the information is deemed not “material” to the litigation, which means it is available from other sources.
But what if it were a group therapy situation? Even if there is privileged communication between the client and therapist, does each member of the group have the same legal constraints on revealing information as the therapists conducting the group? Can an attorney for the spouse of one member seeking a divorce issue a subpoena for all the members of the group, on the basis that group members are not bound by any privilege and have information that is relevant to the litigation?
This brings to mind an episode of Law and Order. “Jack McCoy” (brilliantly played by Sam Waterston) argues that, although communication between a psychiatrist and patient is privileged, a marital session is not. McCoy/Waterston argues that once privileged information is revealed to a third party, even in a marital session, the information is no longer privileged. This raises some questions about what clinicians know and don’t know about confidentiality, privileged communication, and the law.
Many social workers and other therapists simply assume that if what our clients tell us is confidential, it must mean that what they tell each other in a group is equally confidential. But is that so? That it makes sense is not enough to establish that a law exists to provide confidentiality.
Whereas most of us realize that we cannot ignore a subpoena, opinions vary as to the proper response. Do we get legal representation to respond for us and pay legal fees? Or do we try to handle it ourselves? One therapist I know suggests we should simply go to the judge directly without legal representation and, after explaining the situation, ask that the subpoena be quashed. An attorney in Boston who has represented many therapists says if it’s clear a subpoena is improper, we should send a letter not only saying we will not comply, but threatening to file a small claims action against the attorney and an ethical complaint, as well, alleging abuse of process. In other words, we need to play offense, not defense.
But when we have no choice but to appear in court, is it enough to simply tell the judge that our clients told us things with the understanding that it was confidential and, therefore, any subpoena should be quashed? Does the fact that someone believes a conversation is confidential make it so in a court of law?
Legal experts will tell you that when there is a conflict between two values, courts must decide which serves the greater public good in a given situation. In this case, there is the right of group members’ privacy vs. the right of parties to a legal action to obtain evidence that they may need to support their case. And these interests are weighed differently in criminal vs. family court vs. civil cases. So how do judges decide?
It depends a great deal on the state or jurisdiction. States differ on confidentiality statutes—so much so that in some states, a client being treated by a particular discipline may enjoy privileged communication while others do not, although every state has some form of privilege for therapeutic counseling.
Then there is federal law. Privilege of confidentiality exists not only as a matter of common law but also constitutional privacy rights doctrines that one court described as “well-established.” Nevertheless, these privileges have not uniformly been extended to group therapy, which means that members of a group can be subpoenaed in some states but not in others. Even in states where there is privileged communication for therapists in group treatment situations, it could be tricky to expect members of a group to be held to the same standards as the professional caregiver.
The law typically looks at the nature of the relationship between the holder of protected information and the person whose privacy is at stake to determine whether it makes sense or is fair to impose such a duty when there is no natural inclination to care about the underlying privacy. For example, a clerk of court might be the “holder” of files, but he or she clearly lacks an intimate enough relationship with the individual whose personal information might be contained in the file. So the clerk can’t be expected to assert that person’s rights of privilege. At the other end of the spectrum is the doctor or therapist who not only wants to help his or her client, but also wants to preserve the integrity of the therapeutic relationship in general.
Members of therapy groups strike us as being somewhere in the middle. However, there definitely is a kind of reciprocity/mutual detente dynamic, in that no member can expect the others to honor his or her privacy unless he or she, in return, agrees to honor theirs.
So how can a therapist protect the privacy of members in a group situation? One suggestion is to have members sign a contract. Most therapists use contracts with their individual and group clients, and these contracts typically describe the expectation of confidentiality. However, it is unlikely that these verbal and generally worded contracts would be specific enough to be legally binding. What is needed is for all group members to sign a specific written contract not as a general understanding of the rules, but as a mandatory condition of participation. Such a contract should specify that all members agree not only to confidentiality, but also to assert privilege in the event that information is subpoenaed on any member.
A well-written contract can be enforced, and violators can be sued, even if there’s no privilege as a matter of law. Of course, this is not without its problems. In effect, the clinician would be asking group members to trust each other enough to share confidential information, but at the same time warning everyone that the person next to them might sue them.
This area of the law is complicated. Therapists who assume that what their clients tell them in groups is confidential or privileged can put themselves and their clients in difficult positions. For example, a therapist who promises confidentiality for groups but practices in a jurisdiction that has no privilege could be sued for malpractice in the event that a group member reveals information.
It makes more sense to know the law, draft legally binding contracts, and make sure group members know the truth. If there is no confidentiality, it’s better to say so at the outset of treatment and allow members to reveal information, or not, based on how strongly they feel about what the law has to offer. Whereas truthfulness is required under oath, group members need to be aware that memory is imprecise, so saying, “I don’t recall,” is a common occurrence.
Finally, because all privileges have exceptions, it is wise to consider two concepts regarding recordkeeping if avoiding subpoenas is the goal:
Less is more.
Have no documents that record exact quotes of members.
Statements or quotes reduced to writing are much easier to use in litigation than progress notes reflecting the caregiver’s concerns and observations. If lawyers come to learn that it isn’t worth trying to get group therapy information because there’s nothing in writing or in members’ memories that’s useful to them, the subpoenas will stop coming.
John A. Riolo, Ph.D., is a retired private practitioner who operates a number of educational Web sites and blogs on mental health issues. Wendy J. Murphy, JD, is a Massachusetts attorney and patient advocate who was involved in a federal case that extended the Jaffe v. Redmond ruling to rape crisis counselors and other non-licensed caregivers.