In nearly four decades of practice, I have seen a number of attempts by various people to gain access to my customer records. Here are some of them.
Two policemen showed up in my office asking for records on a former customer. They told me that the person was interested in a very serious crime and they were trying to close that case. Would I please give you my records for this customer? When I told the officers that I would like to comply with a court order, they put pressure on me. "Really! Are you going to summon us?"
A lawyer sent me a very official looking letter that I believe was deliberately crafted to look like a court order. It was full of legal jargon and information requirements regarding a former client. I could have just tossed it in the trash, but called the law firm instead. I knew the lawyer would be waiting for my call. Sure enough, when I told the receptionist who I am, she immediately took me to his office. He answered on the first ring.
"I'm calling about your" request "for information from me," I said. I didn't wait for him to comment and went on, "I'm sure you know that without a court order or the client's permission, I can't even see who my clients are. Do you have any of these?" Of course not . The call was polite and brief. I never heard from him again.
A parent called my office looking for "any records" I had regarding my therapeutic relationship with his then underage son. Normally I would have liked to talk to a parent. However, I knew that this father's custody had been terminated by the court (my client's mother provided me with these documents) so the man who called me had no legal claim to his son's records. I declined his request.
Without experience, it can be easy to be intimidated by the police, angry parents or clever lawyers. However, you cannot be arrested (as I was once threatened) for following counseling ethics and HIPAA requirements regarding customer information. In fact, you are likely to be in more trouble if you give in to these "requests" in violation of our Code of Ethics.
To make your life a little less stressful, I would like to suggest three simple statements / rules that will help you know when to disclose information and when to keep silent.
First of all, never forget this line: "Who my customers are or not is confidential information." The first two officers mentioned above said, “We are here to speak about MS, one of your former clients. Do you remember her "
You played me. If I had acknowledged that I remembered them (as I actually did) they would have been on their way to pressuring me for more information. I just delivered the line above and then closed my mouth.
Second, remember to ask, "Do you have a court order?" No court order is oral. Police officers, lawyers, and others tried to tell me they had a court order and wanted me to provide information. I always declare that I am happy to comply with any court order I receive. If I don't have a court order, this is almost always the last time I learn of a request for information.
Even if there is a printed order, it must be signed by a judge. The attorney who tried to cheat on me knew he couldn't forge or forge a judge's signature without running the risk of losing his license and maybe going to jail. I always go to the last page of the order first to see which judge signed it. No signature from the judge, no information.
Finally, ask: "Who has the right to this information?" In the absence of a court order, that legal right generally rests solely with the client, but in the case of minors, those who have legal guardianship may request records. This can get complicated as I indicated in the scenario above. If I hadn't foreseen the issue of legal guardianship, I might have provided client records to a person who had no right to see it.
If you have no experience with court decisions, always contact your professional organization or a trusted and experienced colleague. If you have any questions about a court order, you can call the court to confirm or clarify.
One final caveat: I'm not a lawyer. I know that some jurisdictions may have systems that differ from what I have described. So, before you need them, contact a legal advisor in your area. You will then be prepared.
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Gregory K. Moffatt is a veteran advisor for more than 30 years and the Dean of the College of Social and Behavioral Sciences at Point University. In his monthly Voice of Experience column for CT Online, he seeks theoretical, ethical, and practical lessons from his diverse career as well as inspiration for today's consultants, whether they are just starting out or have been practicing for many years. His experience spans three decades of working with children, trauma and abuse, as well as a variety of other experiences including working with schools, businesses and law enforcement agencies. Contact him at [email protected].
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