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 likely to thwart an abuse investigation and/or to compromise the treatment rapport 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, Statutes, may not have access to treatment records. (ss. 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 statutes and the DHS 92 Administrative Rules governing confidentiality. When clients are still in treatment, the following analysis may be useful for therapists:
"...The parent [of a minor]...shall have the same rights of access as provided to subject individuals under this section." (ss. 51.30 (5)(b)1, Stats.)
However, "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." (ss. 51.30(4)(d)1, Stats., emphasis added)
And, "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". (DHS 92.05(1)(b)1, Wis. Admin. Code, emphasis added)
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 to the parent's access as well.
Therefore, if a therapist documents 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.
An alternate approach is to consider the application of the Court of Appeals decision inState 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 Child In need of Protective Services (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 a subpoena duces tecum is served on the therapist/provider, that means the therapist has to show up and bring the specific records requested. But it does not mean that the therapist must turn over the records to the attorney who filed the subpoena. The therapist should bring the records to court and be prepared to explain any concerns they may have about turning over those records. They should then offer to give the records to the court only. 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, inform the parent 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 may also be directed to the DHS 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.