INFORMED CONSENT
Informed Consent Definition: The rights of
clients to be informed about their therapy and to
make autonomous decisions pertaining to it.
Informed Consent Document: Defines
boundaries and clarifies the nature of the basic
counseling relationship between the counselor and
the client. Professionals have the responsibility to
make reasonable disclosure of all significant facts,
the nature of the procedure, and some possible
consequences and difficulties.
INFORMED CONSENT
A LEGAL DOCUMENT:
Typical issues to address:
Office Policies including Emergency Calls
Background of the Therapist
Cost
Probable Length of Therapy
Benefits and Risks of Treatment
Additional Community Resources
Access to Files
Diagnosis
Limits of Confidentiality
TREATMENT AUTHORIZATION
OF MINORS
In most cases requires proper consent from parents:
If parents are in an intact marriage: Legally either
parent may give consent.
If the parents are divorced and have joint legal custody:
Legally, either parent may consent
If the parents are divorced and joint legal custody
requires the signature of both parents: Both parents
consent
TREATMENT AUTHORIZATION
OF MINORS
If the parents are divorced and there is sole
legal custody: The parent with sole legal custody
may authorize counseling.
If there is a step-parent: No legal standing to
authorize counseling
TREATMENT AUTHORIZATION
OF MINORS
Treatment without parental consent is legally
permissible if the minor meets the following
requirements:
1. Must be 12 years or older
2. Outpatient therapy only (not inpatient)
3. Must be deemed mature enough to benefit
4. Provider determines there is a good reason for
treatment
5. The rationale is documented by the therapist
6. The minor is responsible for the fee
TREATMENT AUTHORIZATION
OF MINORS
Treatment without parental consent is legally
permissible if the minor meets the following
requirements:
1. Must be 12 years or older
2. Outpatient therapy only (not inpatient)
3. Must be deemed mature enough to benefit
4. Provider determines there is a good reason for
treatment
5. The rationale is documented by the therapist
6. The minor is responsible for the fee
TREATMENT AUTHORIZATION
OF MINORS
Important points:
The minor may sign or refuse to sign
authorizations for release of records
The minor may consent to treatment even
against the wishes of the parent with legal
custody
The law requires the therapist to periodically
reconsider involvement of the parents.
TREATMENT AUTHORIZATION
OF MINORS
Emancipated Minors:
Currently married or
Are currently serving in the military
OR (as granted by the court):
1. At least 14 years old
2. Willingly living separate from parents
3. Managing own financial affairs
4. Legitimate source of income
Essentially the same rights as adults:
Can enter into contracts, manage finances, seek
therapy
CONFIDENTIALITY
DEFINITIONS:
Confidentiality: Therapist/Client: Client right to
privacy
Privilege: Legal concept barring the disclosure of
confidential communications in a legal proceeding.
Privilege belongs to the client
Privacy: The constitutional right of the client to
decide when, how much, and the extent of sharing
of oneself with others. Records, tests, etc.
CONFIDENTIALITY
DEFINITION:
A clients right to request all information revealed in
therapy to be kept solely between the therapist
and the client, unless the law requires an action.
An ethical principle requiring therapists not to
reveal any information about the client.
A legal restriction requiring therapists not to reveal
any information about the client.
CONFIDENTIALITY
CONFIDENTIALITY WITH PATIENT RECORDS:
Patient chooses to release or wants to see
records:
Options when patient consents to release his/her
records
Options when patient requests his/her records
CONFIDENTIALITY
CONFIDENTIALITY WITH PATIENT RECORDS:
Court or legal issues:
1. When therapy or evaluations are court-ordered
2. Any legal proceeding where the patients mental
status is at is issue
3. If the patient is suing you
CONFIDENTIALITY
SUBPOENAS: Therapist responsibilities:
That your client understands the full
ramifications for the release of information
Where the information is going
Who wants the information
Why they want it
How much of the information is actually
necessary to be released
Possible repercussions for you, the therapist.
CONFIDENTIALITY
SUBPOENAS: Therapist responsibilities:
If it is your client about a case: Inform him/her
about possible exposure issues, concerns over
having the entire record released or subpoenaed. If
there is an attorney involved, maybe talk to them.
If it is from an attorney representing your client:
Contact your client to verify and discuss options.
CONFIDENTIALITY
SUBPOENAS: Therapist responsibilities:
If it is from an opposing attorney (against
your client): Contact your client and discuss
options and have your client:
a) Sign a release so you can talk with his/her
attorney
b) Have client contact his/her attorney and let
them know about the subpoena
CONFIDENTIALITY
SUBPOENAS: Therapist responsibilities:
If it is from your client or client’s attorney
and it is hostile toward you: Contact your
attorney for instructions
Bottom Line: When records are requested, call
your client first and discuss options, unless the
request or subpoena is from a client’s attorney who
is hostile toward you, and wants to do you harm.
Once information leaves your office, you cannot
get it back.
CONFIDENTIALITY
LEGAL EXCEPTIONS TO CONFIDENTIALITY:
1. Child Abuse
2. Dependent Adult and Elder Abuse
3. Tarasoff: Duty to Warn Potential Victim
4. Suicide and Danger to Self
NOT: Domestic Violence between two Adults
EXCEPTIONS TO
CONFIDENTIALITY
TYPES OF CHILD ABUSE:
Physical Abuse
Sexual Abuse/Sexual Exploitation
Neglect
Willful Cruelty or Unjustifiable Punishment
Unlawful Corporal Punishment
Witnessing Domestic Violence: Unjustifiable
mental suffering, or potential physical danger
EXCEPTIONS TO
CONFIDENTIALITY
OPTIONAL REPORTING:
Not mandated, but is considered a “Permissive
Report”.
Emotional Abuse: A child is suffering serious
emotional abuse evidenced by anxiety,
depression or withdrawal.
Fetal Abuse: Behaviors that adversely affect
an unborn child
EXCEPTIONS TO
CONFIDENTIALITY
SEXUAL ACTIVITY REPORTING FOR A MINOR:
1. Sex involving a minor (anyone under age 18) is
reportable if there is consensual oral sex, anal sex,
or penetration into genital or anal openings with a
foreign object.
2. Sex with a minor is reportable if there is
consensual intercourse between a minor under 16
and an adult 21 or older.
EXCEPTIONS TO
CONFIDENTIALITY
SEXUAL ACTIVITY REPORTING FOR A MINOR:
3. Sex with a minor is reportable if there is any
consensual sexual activity between a minor 14 or
15 and an adult at least 10 years older than the
minor. Determined by birth dates, not testimony.
4. Sex involving a minor is reportable if there is
consensual sexual activity involving a minor under
the age of 14 and any person 14 years or older.
EXCEPTIONS TO
CONFIDENTIALITY
SEXUAL ACTIVITY REPORTING FOR A MINOR:
5. Consensual sex involving a minor is reportable if
there is sexual activity between a child under the
age of 14 with a much younger or much more
immature child where there is intent to exploit the
younger child’s naivete.
EXCEPTIONS TO
CONFIDENTIALITY
CHILD ABUSE:
“A mandated reporter shall make a report to a
specified agency, whenever the mandated reporter,
in his or her professional capacity or within the
scope of his or her employment, has knowledge of
or observes a child whom the mandated reporter
knows or reasonably suspects has been the victim
of child abuse or neglect.”
Second hand or third hand information is reportable
if the therapist heard about it while acting in his or
her professional capacity
EXCEPTIONS TO
CONFIDENTIALITY
CHILD ABUSE:
The report must be made to a California agency,
regardless of the location of the abuse.
Reasonable Suspicion: Objectively reasonable for a
person in a similar position to entertain a suspicion
given the facts. Proof or evidence is not necessary
and it is not the practitioner’s responsibility to
investigate. It is the agencies responsibility to
investigate.
EXCEPTIONS TO
CONFIDENTIALITY
CHILD ABUSE:
There is no mandate to report child abuse if the
victim is no longer a minor.
However, if the adult victim states that minors are
being abused by the same person, a report must
be filed.
EXCEPTIONS TO
CONFIDENTIALITY
CHILD ABUSE REPORTING:
1. A verbal report should be made immediately to the
appropriate agency or as soon as practically possible.
2. A written Child Abuse Report Form must be forwarded
within 36 hours of receiving the information.
Note: Always keep a copy of the report as well as good
documentation of all correspondence and rationale for the
report.
EXCEPTIONS TO
CONFIDENTIALITY
DEPENDENT ADULT ABUSE:
Between the Ages of 18 and 64, who has physical ,
mental or financial limitations which restrict his or
her ability to carry out the normal activities of daily
living or to protect his or her rights
ELDER ABUSE: 65 or older
EXCEPTIONS TO
CONFIDENTIALITY
TYPES OF DEPENDENT ADULT AND ELDER
ABUSE:
Physical Abuse
Abandonment
Isolation
Neglect
Financial Abuse
Abduction
EXCEPTIONS TO
CONFIDENTIALITY
DEPENDENT ADULT AND ELDER ABUSE REPORTING:
1. A verbal report should be made immediately to the
appropriate agency or as soon as practically possible.
2. A written report must be filed within 2 working days
of the discovery of the abuse.
Note: Always keep a copy of the report as well as good
documentation of all correspondence and rationale for
the report.
EXCEPTIONS TO
CONFIDENTIALITY
TARASOFF (Duty to Warn) DEFINITION:
A legal obligation to break confidentiality to protect
a potential victim from a client’s imminent
violence.
The therapist must make reasonable effort to
communicate the threat to the intended victim and
to a law enforcement agency.
EXCEPTIONS TO
CONFIDENTIALITY
TARASOFF (Duty to Warn):
When the client, a close family member of the
client, or a credible third party communicates to the
therapist the client’s serious threat (imminent) of
physical violence to a reasonably identifiable victim.
Within 24 hours of learning of the client’s threat, an
electronic report must be made to local law
enforcement
EXCEPTIONS TO
CONFIDENTIALITY
TARASOFF (Duty to Warn):
Reasonably Identifiable Victim: Could be an individual
OR:
A Group of People: such as a bomb threat to people in a
building or the shooter being at an intersection with a gun
NOTE: Transferring a communicable disease such as HIV
is not reportable
EXCEPTIONS TO
CONFIDENTIALITY
SUICIDE AND DANGER TO SELF:
A therapist has no Legal duty to prevent suicide…
however he/she has a legal duty to take
appropriate preventive measures.
The law permits therapists to break confidentiality
to protect the client from self harm. This may
include:
Contacting close family members
A law enforcement welfare check
Involuntary Hospitalization
REFERENCES
Corey, G., Corey, M., Corey, C. & Callanan, P.
(2014). Issues and Ethics in the Helping Professions
(9th ed). Belmont, CA: Thomson Brooks/Cole.
Grossman, G. , Treves, A., Klein, N., and Moshontz,
C. (2018). California law and ethics 2018.
continuing education. Los Angeles, CA: Gerry
Grossman Seminars
