Release of Treatment Records to Parents of Minors
Back to Confidentiality of
Treatment Records
Therapists who treat children sometimes encounter situations where
serious concerns arise about releasing treatment records to a parent,
particularly when that parent is a suspected perpetrator of abuse upon the
child.
Sharing of treatment information in those situations is very likely to
thwart an investigation or to compromise whatever treatment rapport had
been created between the therapist and the child.
In general, a parent has a right to access the treatment records of a
child, or obtain copies of the records. However, a parent who has been
denied periods of physical placement with the child under Ch. 767 may not
have access to treatment records. (§ 51.30(5)(bm), Wis. Stats.)
Besides the general rule and exception noted above, there are two ways
that good faith efforts could be made by therapists to justify a decision
not to release all records to a seriously problematic or perpetrating
parent in certain circumstances.
The first approach is to scrutinize the actual wording of the statute
and the HFS 92 Administrative Rules governing confidentiality. When
clients are still in treatment, the following analysis may be useful for
therapists:
1. "...The parent [of a minor]...shall have the same rights of
access as provided to subject individuals under this section." (§
51.30 (5)(b)1, Stats.)
2. "Access to treatment records [except for records about
medications or physical health treatment] by a subject individual during
his or her treatment may be restricted by the director of the treatment
facility." (§ 51.30(4)(d)1, Stats.)
3. "Denial [of access to records during treatment] may be made
only if the director has reason to believe that the benefits of allowing
access to the patient are outweighed by the disadvantages of allowing
access". (HFS 92.05(1)(b)1, Wis. Admin. Code)
Thus, if the parent's right of access hinges on the child's right of
access, it follows that the potential limitations on access would be
applicable with a parent.
Therefore, if therapists document a clinical assessment that the
disadvantages of allowing the parent access (while the child is in
treatment) clearly outweigh the potential benefits, they could in good
faith limit the parent's access to portions of the record.
A second approach is to consider the application of the Court of
Appeals decision in State v. S.H., (159 Wis. 2nd 730). This is binding
precedent as the Wisconsin Supreme Court denied review of that decision.
In that case, the Court did not explicitly interpret the
confidentiality provisions, but rather ruled that the general therapist /
client privilege superseded the right of the father to access the
treatment records of the children that he was charged with sexually
assaulting.
In a situation where a parent is charged with, suspected of, or being
investigated for abuse, it will help if there is a Guardian ad Litem (GAL)
available on behalf of the child (and, indirectly, on behalf of the clinic
or treatment facility).
The GAL could present the matter to a Children's Court or Probate Court
judge, and assert "privilege" as the justification for not
releasing the records to a requesting parent.
If there is already a CHIPS petition on file, or if there is already a
Court with jurisdiction over a parent facing criminal charges, those are
logical forums to resolve this.
In a custody case or CHIPS proceeding, attorneys for a party may
attempt to subpoena records. However, if there was a subpoena served
against the clinic or facility for the records, they should consider
turning them over only to the Court, rather than any specific attorney.
At that time, they need to be prepared to explain any concerns they may
have about parties to the proceedings accessing the treatment records. The
Court can conduct an "in camera" inspection of the records and
has discretion to limit access to portions of the record.
If there is a GAL involved on behalf of the child, the GAL
recommendation may be a crucial factor in any decision the Court makes
about allowing record access.
While reviewing a parent's request for record access, an assurance
should be provided to the parent that as much of the record as may be
feasible will be shared with them.
However, if not being allowed immediate access is problematic to the
parent(s), inform the parent(s) that the release of information can be
reviewed by a GAL and/or the court, and all involved parties will have an
opportunity to present their views before a decision to restrict record
access is determined by the court.
The parent(s) may also be directed to the HFS 94 Grievance Resolution
Procedure as a forum for review of the rights involved, if they demand
immediate access to the complete record.
Lastly, clinic or facility therapists involve in court proceedings
regarding treatment records should work with any involved county or
contract provider case manager that may provide services to the client.
They can also consult with county abuse prevention agencies, county
Corporation Counsel (if there is county involvement), clinic or facility
legal counsel and the GAL if one has been appointed.
Last Revised: January 12, 2006 |
