Reducing Risk in Treating Divorcing Families

By Eric A. Harris, J.D., Ed.D.
November 11, 2015



tableThis article provides an overview of several risk management practices for psychologists who work with divorced or divorcing families, particularly the children of divorcing families. It is based on the author’s 20-plus years’ experience of providing risk management consultations to those insured through the American Insurance Trust, formerly the American Psychological Association Insurance Trust.

These principles are derived from both clinical and legal issues, as most good risk management advice is. Legally, contested custody cases, particularly high conflict cases, present emotional terrain that is difficult to traverse and are almost universally acknowledged to present the highest risk of disciplinary complaints.

Further, a good percentage of our risk management calls come from psychologists working with children whose custody has long since been decided, but the conflict over the children continues. Clinically, these recommendations rest on the principle that in order to be successful, therapy has to be a safe space, particularly for children who are over 10 years old.

Therefore, to the extent possible, therapists must stay out of disputes between the children’s parents and need to accept that a child cannot be safe without some measure of privacy.
Readers will notice that these are steps that must be taken at the outset of the treatment as part of the informed consent process. Waiting until issues actually arise in the treatment is much more likely to be seen as problematic, since they will arise around a conflict between the parents.

This is a short summary article and should serve as guidance, not as a directive. Divorce cases are complex and often generate disciplinary complaints based purely on an unwanted custody outcome, so all readers should be cautioned that careful consultation and documentation is always highly recommended.

It is important to have permission of both parents before evaluating or treating a minor child. Technically, the law allows each custodial parent, in the absence of a specific court directive, to consent for psychological treatment.

Our experience is that initiating treatment on the petition of one parent without consulting with the other creates both risk to the therapist and to the treatment. The non-consulted parent is likely to assume that the other parent is trying to exclude him or her from important decisions about their child and has presented an unbalanced picture of the situation (which is many times true).

This is likely to generate distrust of the therapist and taint the therapy from the beginning. This is most true in high conflict divorces, where every action is judged adversarially and where the excluded parent may fire the therapist, putting the therapist in a double bind. But the principle applies in almost all divorce situations that are, to a greater or lesser extent, about warring narratives.

In both The Trust workshops and consultations, our firm advice is that psychologists adopt the policy that they will not work with a minor child without consulting with and attempting to involve the non-presenting parent and at least securing non-objection to the treatment unless the presenting parent can demonstrate that he/she has sole legal custody or sole medical decision-making authority. This may require examination of the custody agreement and consultation about its contents. However, this is not necessary if the presenting parent is willing to allow consultation with the other parent.

Clarify the confidentiality parameters of the treatment. First, you need to establish what your state law prescribes for parental access to children’s records. HIPAA established that for children’s information, access is determined by state law.

Many states provide some clinical discretion for psychologists to withhold all or some part of a child’s records if they believe releasing them would be damaging. If the psychologist invokes the exception, his/her documentation should include the justification for withholding.

Other states grant children the right to control release of their records at a certain age and some provide privilege to children that can only be overridden by the court. It is also important to note that most states provide access to records to the non-custodial parent unless there is a specific court prohibition.

HIPAA also states that parents may contract away their access rights, and we believe that minors, although not yet 18, can contract away some of their privacy rights. We think such a contract is the best method to customize treatment, providing parents information they need to monitor progress while providing minors privacy over the details of their treatment without which progress is unlikely. A parent-child confidentiality agreement template is available at Trustinsurance.com/resources.

*Most psychologists want to avoid being dragged into court to testify in a custody case. A psychologist can try to prevent that from happening by contracting with the parents before the treatment starts, but the contract must be clear that such an agreement may be overridden by a judge. The best rationale for such an agreement is protecting the child from having his or her therapeutic narrative become a weapon to be used by one parent against the other.

Parents should also be informed that if a psychologist is subpoenaed, he or she is ethically prohibited from providing a professional opinion on custody, visitation or parenting capacity either in court or to a custody evaluator or guardian ad litem. This will discourage parents who have been sent by their lawyers to gather ammunition.

Establishing parameters in these areas will increase the odds of successful treatment and reduce the odds of a successful complaint.

 

 Eric Harris, J.D., Ed.D., is a lawyer and psychologist in Massachusetts whose primary activity is providing risk management training and consultations to psychologists insured by the American Insurance Trust. Harris is also part-time legal counsel to the Massachusetts Psychological Association where he was the director of professional affairs for 10 years.  He has been active in APA, most recently serving on the task force that drafted the APA telepsychology guidelines. He has also served as a member of CAPP and COLI.
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