Eye on Ethics
Parents' Access to Minors' Counseling Records: An Example of Evolving Standards
However, other ethical standards in social work do evolve. Sometimes changes occur because of shifts in social workers' thinking. For example, during social work's earliest years many practitioners believed it wasn't necessary to keep detailed clinical notes; in fact, for years many social workers argued that keeping notes to a minimum was an effective way to protect clients in the event their records were subpoenaed during legal proceedings. Gradually, standards changed, such that now, according to NASW Code of Ethics, standard 3.04[b], "Social workers should include sufficient and timely documentation in records to facilitate the delivery of services and to ensure continuity of services provided to clients in the future."
Disclosure of Minors' Counseling Records
Social workers encounter ethical challenges when parents ask to examine their child's records because of their curiosity or because of their relevance to legal disputes (e.g., when one parent believes that disclosing the contents of the therapy record may strengthen his case in a bitter child custody dispute). A series of court decisions demonstrate how legal standards have changed, which has a direct bearing on social workers' management of this challenging ethical issue.
In a precedent-setting 2005 New Hampshire Supreme Court ruling, "In the Matter of Kathleen Quigley Berg and Eugene E. Berg," the court held that parents of minors do not have an absolute right to their child's therapist's records or the exclusive right to assert or waive the therapist-client privilege on their child's behalf. When the parents of four children divorced, the mother was awarded primary physical custody of the four children, and the father had specific periods of visitation. The parents had joint legal custody. Following the divorce, the children refused to visit with their father as scheduled. The father filed a contempt motion in court, alleging that his ex-wife was alienating the children from him.
A guardian ad litem was appointed by the court to represent the children. The father requested records and notes from the children's therapists, claiming he would find evidence that his ex-wife was interfering with his relationship with his children. The therapists refused to produce the requested information, concerned that disclosing the records to the father wasn't in the children's best interests. The high court concluded that a parent does not have the exclusive right to assert or waive the privilege, ruling that it's up to the trial court to determine whether an assertion or waiver of the privilege is in the child(ren)'s best interests.
Prior to this ruling, New Hampshire therapists assumed that adults with decision-making responsibility had the sole authority to waive privilege on behalf of minor children. Even if the therapist had concerns that releasing the records to the parent could be harmful to the minor, the therapist had no choice but to release the records. However, the Berg decision changed the legal and, by implication, ethical standard. This important court decision essentially prevents a therapist from releasing a minor's records when the parents disagree about whether there should be a waiver of privilege. Based on the court's ruling, the therapist is strongly advised to wait until the court resolves the issue and determines what is in the child's best interest.
In February 2008, the trial court denied the mother's request for records release, finding that under the facts of the case, it would not be in the best interests of the children for the court to mandate disclosure of the records. On appeal, the Iowa Supreme Court upheld the lower court ruling. In support of its decision, the court cited a history of abuse by the mother, whom the court had prohibited from having contact with one of the children. The court also considered the children's request that their records not be provided to their parents. Significantly, the court decision also noted the potential for irreparable harm to the children's therapeutic relationship with their social worker if the records were disclosed.
Several other state courts, including those in California, Florida, Maryland, Massachusetts, and Oklahoma, have also addressed whether a parent has an absolute right to access his or her children's mental health records. Courts have consistently ruled that a parent or guardian may waive a minor child's therapist-patient privilege only when waiver is in the child's best interest. But a number of courts have ruled that waiver must not be allowed when the parent's interests are adverse to the child's interests.
Viewed narrowly, these various court rulings provide clinical social workers with practical guidance when parents request access to their children's otherwise confidential records (although social workers should always consult a local lawyer for advice about the law in their respective jurisdiction). But viewed more broadly, this scenario also provides social workers with a compelling example of the ways in which ethical standards evolve over time.
Ethical issues in social work are hardly stagnant. Indeed, social workers must be vigilant in their efforts to monitor important changes in standards to which they will be held.
— Frederic G. Reamer, PhD, is a professor in the graduate program of the School of Social Work at Rhode Island College. He's the author of many books and articles, and his research has addressed mental health, health care, criminal justice, and professional ethics.