Avoiding Liability Bulletin – April 2006

… When therapists and counselors view the couple as the client, a question arises about the confidentiality obligations of the practitioner as between the two participants. For example, suppose that the therapist or counselor sees the couple for several sessions conjointly and then decides to see them individually for a few sessions before bringing them back together. Are the communications between the therapist or counselor and the individual to be kept confidential as it relates to the other participant in the couple therapy? Or, may the therapist or counselor share such information with the other participant as he or she deems necessary and appropriate for the effective treatment of the couple – the identified patient? Prospective participants in couple therapy should be informed about the practitioners approach to this important aspect of confidentiality.

In my view, a couple should be informed (unless state law or other authority differs with the following) that the practitioner views the identified patient as the couple and that during the course of working with the couple it may be necessary to see each of them in one or more “one on one” sessions. Such sessions are to be viewed by the couple as a part of the couple therapy unless otherwise indicated by the therapist. While the “one on one” sessions are confidential in the sense that the therapist will not release the information to a third party, the therapist may need to share information learned in an individual session with the other participant in couple therapy. If the therapist is not free to exercise his or her clinical judgment regarding the need to share this information with the identified patient – the couple – the therapist might be prevented from effectively serving the needs of the couple.

The therapist can inform the couple that he or she will use his/her best judgment as to whether, when, and to what extent he or she will make disclosures to the other person. The therapist can also let the couple know that, if appropriate, he or she will give the individual the opportunity to make the disclosure. It is important to point out that disclosures by the practitioner will be made, if they are made at all, for treatment (of the couple) purposes. In essence, the disclosures, if made, should be seen as a necessary part of the couple therapy. If one of the participants wants complete confidentiality as to his or her communications, that participant can of course see another therapist or counselor for individual treatment. The therapist can let the couple know that should one of them need individual treatment, a referral can be made.

If this kind of understanding is not made abundantly clear at the outset, the individuals participating in one on one sessions may share “secrets” and thereby create a conflict for the therapist or counselor, possibly requiring an early termination. This would not be in the best interests of the identified patient – the couple. Failure to clearly articulate such a policy will often allow one of the participants to sabotage the couple work. Such a policy should be in writing and should be signed by the patient (the couple) prior to the commencement of treatment and after it is discussed and understood by the couple. Remember, to the extent that state law or regulation may differ with the above, or to the extent that a therapist or counselor’s views or methods of practice may differ with the above, adjustments to the policy can be made.

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Richard Leslie

Richard S. Leslie is an attorney and acknowledged expert on the interrelationship between law and the practice of marriage and family therapy and psychotherapy. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT) and has written articles regarding legal and ethical issues for their Family Therapy Magazine. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. While there, he also served as their director of Government Relations and tirelessly advocated for due process and fairness for licensees and applicants.

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