A newer version of the platform is available. Please refresh the page.
Sign Up to Get information about Sales & Events Click Here
A newer version of the platform is available. Please refresh the page.
This page focuses on the intersection of law and confidentiality with emphasis on California law in regard to confidentiality in psychotherapy and counseling.
California Law On Confidentiality
This addendum is part of an online course. It focuses on California Law in regard to confidentiality in psychotherapy.
Introduction
This document is a part of an online course and focuses on the application of California Law to confidentiality or, more precisely, to the exception to confidentiality.
The most relevant codes of ethics for California psychologists, MFTs and LCSWs are the APA, CAMFT and NASW, respectively. For information on these and other codes on confidentiality, click here.
The most relevant parts of California Civil Code to Issues of Confidentiality are in the Civil Code Section 56.10-56.16
California Laws and Regulations Relating to the Practice of Psychology
The parts of California law most relevant to the topic of law and dual relationships and boundaries in psychotherapy and counseling are in the following:
Business and Professional Code of California
For regulations online:
BUSINESS AND PROFESSIONS CODE 2918.
The confidential relations and communications between psychologist and client shall be privileged as provided by Article 7 (commencing with Section 1010) of Chapter 4 of Division 8 of the Evidence Code.
California Reporting Suspected Abuse of Children, Elderly Individuals, and Others
Under California law, psychotherapists, among others, are required to report to appropriate authorities when there is good reason to believe that a child or an elderly or dependent adult has been abused. They are required to also report an injury that indicates possible abuse of an elder or dependent child or if they have personally treated a patient with injuries from an apparent assault.
Definitions
Child: A person under the age of 18 years.
Elder: A person residing in California who is 65 years of age or older.
Dependent adult: A person between the ages of 18 and 64 years, who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. It includes all such persons admitted to a 24-hour health care facility.
Abuse: Intentionally or recklessly causing or attempting to cause bodily injury or causing reasonable apprehension of imminent serious bodily injury to himself, herself, or another.
Abuse of an elder or a dependent adult means: Physical abuse, neglect, fiduciary abuse, abandonment, isolation, or other treatment with resulting physical harm or pain or mental suffering, or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.
Child abuse or neglect includes: sexual abuse, sexual exploitation, other physical or emotional abuse, severe or general neglect of the child’s needs (food, clothing, shelter, medical care, and willful cruelty or unjustifiable punishment of a child).
Neglect of an elder or dependent adult means: the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care which a reasonable person in a like position would exercise. Neglect includes, but is not limited to, failure to:
Reasonable suspicion: An “objectively” reasonable suspicion that a person would entertain, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, upon his or her training and experience, to suspect abuse.
Child Abuse
[Section 11166 of the Penal Code] Any person who is employed as a child care custodian, medical practitioner, or non-medical child care practitioner, or employee of a child protective agency who has knowledge of or observes a child who has been abused or reasonably suspects has been the victim of child abuse is required to report “the known or suspected instance of child abuse to a child protective agency immediately or as soon as possible by telephone and to prepare and send a written report thereof within 36 hours of receiving the information concerning the incident.”
Child Abuse: CA Penal Code § 11164-11174.4; 288; 261-269, Child Abuse: CA Welf. & Inst. Code § 18951 ff. In respect to minors, a psychotherapist is mandated to report non-accidental injury inflicted by others; sexual abuse; unjustifiable mental suffering (potential example is a young child witnessing violence at home); neglect; cruelty; statutory rape (minor under 16 and other 21 or older, even if consensual); lewd and lascivious conduct (minor under 16 and other 10 years older, even if consensual); consensual sexual contact between minors (where one is 14 years of age and the other is under 14 years of age).
The mandate is only in respect to information that arises from within a professional, i.e., psychotherapy situation. It does not apply to something witnessed on the street on in the mall, for example. Also, the intent of the law is to protect children presently in danger; no report would be made regarding an adult who tells about having been abused as a child-unless this adult tells the psychotherapist that the abuser (a) has abused someone else who is still a child or (b) has current access to other children.
Elder Abuse
Elderly and Dependent Adults: CA Welf. & Inst. Code § 15630-15632; § 15610-15610.65; § 15633-15637) In respect to elderly or dependent adults, a psychotherapist is mandated to report physical abuse, including sexual assault; misuse of physical or chemical restraint; neglect; fiduciary abuse; neglect; and isolation.
[Section 15630(a) of the Penal Code] “Any elder or dependent adult care custodian, health practitioner, or employee of a county adult protective services agency or a local law enforcement agency, who in the scope of his or her employment, either has observed an incident that reasonably appears to be physical abuse, as observed a physical injury where the nature of the injury, its location on the body, or the repetition of the injury, clearly indicates that physical abuse has occurred, or is told by an elder or dependent adult that he or she has experienced behavior constituting physical abuse, shall report the known or suspected instance of physical abuse either to the long-term care ombudsman coordinator or to a local law enforcement agency when the physical abuse is alleged to have occurred in a long-term care facility, or to either the county adult protective services agency or to a local law enforcement agency when the physical abuse is alleged to have occurred anywhere else, immediately or as soon as possible by telephone, and shall prepare and send a written report thereof within 24 hours.”
[Section 15630(b) of the Penal Code] Other forms of abuse inflicted upon an elder or dependent adult that endangers the person’s well being “…in any other way, may report such known or suspected instance of abuse either to a long-term care ombudsman coordinator or to a local law enforcement agency when the abuse is alleged to have occurred in a long-term care facility, or to either the county adult protective services agency or to a local law enforcement agency when the abuse is alleged to have occurred anywhere else.”
Duty to Warn (Tarasoff)
CA Civil Code § 43.92 (a): “There shall be no monetary liability on the part of, and no cause of action shall arise against, any person who is a psychotherapist as defined in Section 1010 of the Evidence Code in failing to warn of and protect from a patient’s threatened violent behavior or failing to predict and warn of and protect from a patient’s violent behavior except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.” See 2004 change to this Civil Code.
It is important for therapists to realize that the Tarasoff decision established a duty, but it is not a mandate. It is a court decision that says that, in general, psychotherapists can’t be held liable for not breaking confidentiality about threats of violence made within the psychotherapy; nor can the psychotherapist be held liable for failing to predict violent behavior. But, the decision adds, there’s one exception to the general rule. If the threat is serious, if it is communicated directly to the psychotherapist, and if the victim can be reasonably identified, then the psychotherapist can be held liable for failing to warn.
The decision doesn’t say that the psychotherapist has to do anything; it just says that, under the certain conditions, the psychotherapist is at risk of getting sued for not doing anything. So Civil Code essentially implies that, in warning someone when the highly specific need (duty) arises, the psychotherapist will avoid getting sued for not warning anyone, and can’t get sued for breaking confidentiality. The Civil Code adds that, when making one of these warnings, the psychotherapist should report the impending violence to a law enforcement agency and to the threatened victim(s).
Implications of July 2004 for California Court Extends Tarasoff Mandated Reporting Standard. Ewing v. Goldstein California Psychologists, MFTs, LCSWs and Psychiatrists:
In July 2004 California Court Extends Tarasoff Mandated Reporting Standard. Ewing v. Goldstein is a 2004 California appeals court decision that extended the interpretation of the Tarasoff warning law. The court expanded the definition of Civil Code § 43.92 to “include family members as persons covered within the statute who, upon communication to a therapist of a serious threat of physical violence against a reasonably identifiable victim, would trigger a duty to warn.” The court states in Goldstein: “The intent of the statute is clear. A therapist has a duty to warn if, and only if, the threat which the therapist has learned – whether from the patient or a family member – actually leads him or her to believe the patient poses a risk of grave bodily injury to another person.” The expanded duty from now on applies to credible threats received from the patient, or the patient’s family, however, the court made clear that its decision did not go beyond “family members.”
Obviously, the most important question is what does the Ewing decision mean for psychotherapists in California. Simply put, the court decision means that therapists in California could be held liable for failure to issue a Tarasoff warning, when the information regarding the dangerousness of one of their clients comes from a patient’s family member rather than the client.
The reaction to the Ewing decision has varied widely within our profession. Many experts are deeply concerned with the potential for further deterioration of psychotherapy privacy as a result of the decision. Others are concerned that the decision will be misused in family, custody and other disputes, the way child abuse reporting has been misused. Yet, other experts view the alarmed responses as exaggerated and believe that the impact of the decision is rather limited. They view the decision as merely implying that therapists cannot ignore third party statements about dangerousness and do not view it as a major change from how therapists have already been practicing. They take the position that, as before, therapists must integrate any statements about dangerousness, regardless of its source, into the clinical-ethical-legal decision-making. Undoubtedly, it will take time and further court rulings before the dust settles on this issue.
However, the new court decision may have further significant implications for therapists as it leaves open extremely important questions, such as who is considered to be a family member? How does one verify that the person who communicates to the therapists is who he says he is? What about a credible third party report of threat? How does the communication take place: email, fax, phone call? How is the potential victim identified? At this time, these and many other questions remain unanswered for the most part.
When confronted with a Tarasoff situation, consult with a legal expert and document your clinical-ethical-legal decision-making in detail. Additionally, I suggest that California psychotherapists word the section of Confidentiality in Office Policies and Informed Consent like that:
Some of the circumstances where disclosure is required by the law are: where there is a reasonable suspicion of child, dependent or elder abuse or neglect; where a client presents a danger to self, to others, to property, or is gravely disabled or when client’s family member/s communicate to Dr. Xxx that the client presents a danger to others.
For update regarding the Ewing decision and its implication for psychotherapists go to: http://www.zurinstitute.com/tarasoff.html
Danger to Self or Others:
[CA Evidence Code § 1024]: “There is no privilege…if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.” It is important to realize that there is no mandate in 1024, it simply protects the psychotherapists from the charge of breach of confidentiality if they decides to break confidentiality to protect someone.
Physical Injuries
[CA Penal Code § 11160] This law does not affect psychotherapists because they do not provide medical services for a physical condition.
2009: Laws in California Against ‘Snooping’: AB211 & SB541
Hospital and psychotherapists in private practice could see stiff penalties for privacy breaches under two new California states laws. Two new state medical privacy laws, AB211 and SB541, make it possible for institutions and individuals to be fined up to $250,000 for being lax when it comes to the medical privacy of California residents. These laws are partly a result of privacy breaches of several high-profile celebrities, such as singer Britney Spears and California First Lady Maria Shriver. Hospitals and other covered entities in California may have to beef up their privacy and security compliance programs in light of recently enacted state legislation that slaps stiffer penalties on entities and employees who violate patient privacy.
The information in this page contains no legal, ethical, or clinical advice and is not a substitute for legal, clinical, or ethical consultation.
For full disclaimer, click here.