What limitations, if any, preclude a therapist from sharing confidential mental health information even if there is a signed Release of Information (ROI)?
A: There are some statutory limitations that prevent a therapist from sharing confidential mental health information. For a child who is removed from a parent or legal guardian, the therapist cannot share confidential information with anybody – other than in some very specific circumstances – unless a legally valid ROI has been signed. The child’s therapist cannot share confidential information with the parent or guardian from whom the child is removed unless the juvenile court authorized the release of that information through a court order that specifically includes a finding that it is not detrimental to the child. Regardless of a child’s placement, the therapist can decide not to share confidential information with the parents or guardian if that would be detrimental to the therapist-patient relationship or to the patient’s safety or well-being.
The ROI might have some limitations on disclosure. For example, the therapist might only be authorized to comment generally on progress and participation in treatment.
ROIs apply to protected confidential information to be provided to persons outside of court. If the intended recipient is the court, in most circumstances privilege protects confidential communications between the therapist and patient from disclosure to the court, unless the holder of the privilege has waived it. Disclosure of privileged information to a Child and Family Team does not waive privilege. For children under age 12, their attorney holds the privilege. A youth age 12 or older is presumed to hold the privilege, subject to review of their sufficient maturity by the court. Either the youth or counsel for the youth may invoke the privilege, but only the youth can waive it. Because of the significant potential consequences of waiving privilege, such as a party calling the therapist to testify in court, the youth’s attorney should be included in the decision. Anyone seeking to provide confidential mental health information to the court should first ensure that privilege has been addressed.