There are two key legal issues related to the treatment of sexual and domestic violence: privacy and record keeping. This essay addresses privacy rights and laws, including the Health Insurance Portability and Accountability Act (HIPAA); disclosures in the legal process; releases; informed consent; and privacy rights for children. This essay also discusses issues and concerns associated with providers’ record keeping, including the safety of others, mandatory reporting laws, providers serving as witnesses, family law proceedings, and professional liability.
Privacy
Privacy rights exist as a matter of constitutional, statutory, and/or common law. Privacy laws can vary from state to state and from state law to federal law. Some jurisdictions offer more privacy protection to treatment providers with certain levels of education, training, and licensure. All jurisdictions offer at least some protection.
Confidentiality as an aspect of privacy law refers to the promise made to a victim by a treatment provider and the corresponding duty of nondisclosure. Privilege as an aspect of privacy law refers to the rule of evidence that insulates information from disclosure in litigation. Confidential information is not always protected by a rule of privilege. Privileges can be created by statute, constitution, or common law.
The extent to which privileges and privacy rights provide resistance to compel disclosure of treatment information in litigation is affected by the authority of the requestor to seek disclosure as balanced against the weight of the privacy interest. Examples of information covered by privacy rights and privilege laws include a patient’s or client’s name and address, HIV status, drug and alcohol treatment records, sexually transmitted diseases, medical and psychological treatment records, sexual history, sexual orientation and other personal matters, and communications to certain individuals such as a medical or psychological treatment provider, a spouse, a religious counselor, an attorney, or a sexual assault or domestic violence counselor.
Privacy and Health Insurance Portability and Accountability Act
The HIPAA imposes certain federal restrictions on the gathering and release of treatment-related information. HIPAA applies only to health plans, health care clearinghouses, and health providers that transmit information electronically. State laws can provide more privacy protections than HIPAA, but not less. In general, treatment-related information cannot be used or disclosed without informed consent from the patient or client. Psychotherapy notes are entitled to additional protections and cannot be used or disclosed without explicit authorization from the patient or client.
Privacy and The Legal Process
Treatment-related information can be subject to disclosure in the legal process, though not all types of legal proceedings afford litigants the same weight of authority to seek or compel disclosure. Most courts recognize that people who seek mental health care are not less credible as witnesses in court proceedings than people who never seek mental health care. Still, cultural biases and historical stereotypes related to the credibility of women and mental health treatment in particular can foster a disproportionate willingness on the part of judges to allow disclosure of victims’ treatment records in litigation.
Certain types of litigation justify board disclosure of treatment records. For example, in civil litigation where the patient or client has filed a lawsuit to recover compensation for injuries reflected in treatment records, disclosure is usually necessary because emotional or psychological injuries are relevant and admissible. Treatment records can assist the court in developing a full understanding of the value of the patient’s or client’s harm.
Civil cases usually occur between private persons, and parties to the litigation can conduct discovery by issuing subpoenas or summonses not only to each other, but also to nonparties, such as victims and treatment providers. Subpoenas or summonses can be used to uncover not only relevant evidence, but also evidence that might lead to the discovery of relevant evidence.
Criminal cases, by contrast, are initiated by the government against an individual for the purpose of punishing and deterring public wrongdoing. Discovery occurs only between the government or prosecutor and the accused or defendant. The crime victim is a witness for the prosecution, not a party to the case. Defendants in criminal litigation generally cannot send subpoenas or summonses to conduct discovery against victims, witnesses, and other nonparties.
Because the power to issue pretrial subpoenas or summonses in criminal cases is far more limited than in civil cases, a treatment provider who receives a subpoena or summons should make an initial determination as to whether the litigation is criminal or civil in nature. If a subpoena or summons is issued without lawful authority, the treatment provider need not comply, but should notify the court and seek legal advice to determine whether redress against the issuing party is appropriate.
Even when issued in a civil case by a party with lawful authority, a subpoena or summons is generally considered insufficient to justify privileged or confidential material, such as treatment-related information, because a subpoena or summons does not necessarily require the approval of a judge. Without the approval of a judge, there was no need for a due process hearing to balance the privacy rights of the patient or client against the authority of the requestor to seek disclosure.
A court order signed by a judge is generally a stronger form of process than a subpoena or summons, and it usually indicates that a due process hearing was held after which a decision was made that disclosure was necessary. If a court order is issued without a due process hearing, it may be appropriate for the treatment provider or patient or client to ascertain whether proper legal standards were met before the court order was issued.
The holder of private information generally has a legal and ethical obligation to resist unlawful efforts to compel disclosure. Failure to abide this obligation can expose the holder to liability and ethical or licensing sanctions.
When treatment-related information must be released in connection with a legal proceeding, providers can assess whether the request is overbroad or unduly burdensome. For example, unless the treatment itself is a key issue in dispute, it would likely be deemed overbroad if a court order sought disclosure of “any and all treatment records related to Jane Doe” because this language contains no time or subject matter limitations.
Because process notes and whole treatment files are not verbatim transcripts, they can be unclear, misleading, and unhelpful to the interests of justice if information is taken out of context or assumptions are made about the meaning of certain words and phrases. Treatment providers can offer as an alternative the option of a prepared summary of treatment related information responsive to a particular litigation need.
Treatment providers can take steps to redact irrelevant information related to the patient or client and third parties such as family members and friends. Treatment providers can request that all material be returned to the care provider at the conclusion of the legal proceeding and that no copies be retained in the litigation or court files. Privacy rights may survive the death of the patient or client depending on the jurisdiction.
Privacy and Releases
It may be appropriate to disclose treatment-related information if a signed release is received from the patient or client. A signed release may be considered inadequate if it is not reasonably clear regarding the nature of information to be divulged or if it is not signed near in time to the moment of disclosure. Prior to disclosure, a treatment provider should ascertain that at the time the release is signed, the patient or client (a) has proper legal capacity, (b) is not under duress or subject to coercion at the time the release is signed, and (c) has been made aware of the likely consequences of disclosure. In some jurisdictions, the care provider can resist disclosure even after a release is signed if revealing certain information would prove harmful to the patient or client.
Privacy and Informed Consent
Treatment providers are required to inform patients or clients of the nature and extent of treatment offered and the limits and likely consequences thereof at the outset of care. This information should be sufficient to enable the patient or client to make a reasoned decision about treatment.
Treatment providers are required to inform patients or clients of the nature and extent of privacy protections at the outset of care. This information includes advising the patient or client regarding the limits of confidentiality and the policies and procedures employed by the caregiver in the event disclosure becomes necessary or a request for disclosure is received.
Treatment providers should advise victims at the outset of care that disclosure of information shared during the treatment process can lead to a waiver of privacy rights.
Treatment providers can inform patients or clients involved in litigation that they have a right to refuse to answer probing irrelevant questions asked of them during the investigative or litigation process.
Privacy and Children
Privacy rights for children vary from state to state. In general, children’s privacy rights are not entitled to much legal protection, but their rights become stronger as they age toward majority.
Record Keeping
Treatment providers should maintain records sufficient to ensure that the proper standard of care has been met. The primary purpose of record keeping is to record the reflections of the caregiver as a measure of progress in treatment.
Policies and procedures regarding note-taking should be reduced to writing and explicitly address concerns regarding privacy rights, note-taking, and document destruction. For example, a policy can allow for minimal note-taking and swift destruction of certain documents (subject to regulations that may require maintenance of files that establish dates of treatment and other statistically significant information).
Record-keeping policies enable caregivers to respond in summary fashion to requests for disclosure of entire files. For example, if a court order seeks disclosure of “any and all treatment records related to Jane Doe,” a treatment provider with a written policy that allows for prompt destruction of records can respond that “files indicate Jane Doe was treated for sexual violence, but treatment records no longer exist as they were destroyed pursuant to standard document destruction policy.”
Treatment providers serving as expert witnesses or involved in forensic work, such as sexual assault nurse examiner and sexual assault response team nurses, may use note-taking standards that differ from those employed in direct care and treatment services. Forensic witnesses may record more direct quotes and fewer reflective observations because the purpose of forensic work is not to provide care and treatment, but rather to prepare evidence for use in a legal proceeding.
Safety
Treatment providers should notify law enforcement officials when a patient or client credibly threatens to harm himor herself or another or faces a risk of serious harm by another. Failure to do so can result in civil liability.
Treatment providers can offer supportive and corroborative information for a patient or client seeking a protective order or other legal intervention. Disclosures of treatment information for these purposes can lead to the public disclosure of treatment information and a determination that privacy rights have been waived.
Mandatory Reporting
In many jurisdictions, treatment providers are obligated to report incidents of sexual and domestic violence to law enforcement officials. Some laws require only statistical information, while others require identifying information. Failure to comply with mandatory reporting laws can lead to civil and criminal liability.
Treatment providers are obligated to report incidents of child abuse and neglect, which includes experiencing and witnessing domestic and sexual violence. In some jurisdictions, treatment providers are obligated to report incidents of elder abuse, which includes elder victims of domestic and sexual violence. Mandatory reporting laws can also include abuse and neglect of disabled and mentally ill individuals and other vulnerable persons in institutional settings and in trust relationships.
Treatment Providers As Witnesses
Treatment providers can serve as witnesses in legal proceedings. Rules regarding the testimony of treatment providers vary according to the type of litigation and the issues legitimately in dispute. In general, a treatment provider must be approved by a court as a qualified expert in a certain field before testimony will be allowed. A provider who has personal knowledge about an issue in dispute can also be a fact witness for which no expert qualifications are necessary.
Family Law
Family law proceedings generally deal with matters of divorce, custody, and visitation. Unlike civil and criminal cases, family court vests much discretion in a single judge. When children are not involved, issues of violence in the marriage may be relevant. Treatment providers can offer testimony regarding the nature and impact of such violence on the issues in dispute. When children are involved, a judge may appoint a guardian ad litem to give general guidance or to specifically investigate certain matters in dispute. For example, a judge can require a guardian to investigate allegations of sexual abuse.
A guardian ad litem may issue a report effectively determining whether allegations of sexual or domestic violence are credible and what impact if any the violence should have on issues in dispute. A guardian can seek assistance in making such determinations from a treatment provider. The judge usually, but not always, follows the opinions and recommendations of the guardian ad litem.
Unlike in civil and criminal cases, a family court judge can apply more flexible standards of evidence admissibility: a treatment provider can usually offer live testimony, an affidavit, and/or a narrative summary report.
Professional Liability
Treatment providers can face professional liability for substandard care in the treatment of sexual and domestic violence victims. Liability can extend to no licensed volunteer counselors and licensed caregivers employed or volunteering at hospitals and crisis centers, although in many jurisdictions, nonprofit entities and employees or volunteers are either immune from suit or the amount recoverable is capped at a minimal sum.
Bibliography:
- American Psychological Association. (2002). HIPAA for psychologists. Washington, DC: Author.
- Goldman, J., Hudson, R., Hudson, Z., & Sawires, P. (2000). Health privacy principles for protecting victims of domestic violence. San Francisco: Family Violence Prevention Fund.
- Murphy, W. (1998). Minimizing the likelihood of discovery of victims’ counseling records and other personal information in criminal cases: Massachusetts gives a nod to a constitutional right to confidentiality. New England Law Review, 32(4).
- Schulhofer, S. (1998). Unwanted sex: The culture of intimidation and the failure of law. Cambridge, MA: Harvard University Press.
- Summary of New Federal Medical Privacy Protections for Victims of Domestic Violence. (n.d.). Retrieved from http://endabuse.org/programs/display.php3?DocID=56
- S. Department of Health and Human Services. (2002, August 14). Standards for privacy of individually identifiable health information: Final rule. 45 CFR Parts 160 and 164. Federal Register, vol. 67, no. 157 §§ 164.501, 164.502 (g)(1), 164.524 (Regulation Text, Unofficial Version, December 28, 2000, as amended May 31, 2002, August 14, 2002, February 20, 2003, and April 17, 2003). Retrieved May 30, 2017, from https://aspe.hhs.gov/report/standards-privacy-individually-identifiable-health-information-final-privacy-rule-preamble
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